[Senate Report 108-191]
[From the U.S. Government Publishing Office]
Calendar No. 271
108th Congress Report
SENATE
1st Session 108-191
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CRIME VICTIMS' RIGHTS AMENDMENT
_______
November 7, 2003.--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. 1]
The Committee on the Judiciary, to which was referred the
joint resolution (S.J. Res. 1) 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, without amendment, and recommends that the joint
resolution do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Background and Legislative History...............................2
III. The need for constitutional protection...........................6
IV. The need for specific rights in the process.....................16
V. Section-by-section analysis.....................................30
VI. Vote of the Committee...........................................44
VII. Cost estimate...................................................47
VIII.Regulatory impact statement.....................................48
IX. Additional views of Senator Hatch...............................49
X. Additional views of Senators Leahy and Kennedy..................52
XI. Minority views of Senators Leahy, Kennedy, Kohl, Feingold, Schumer
and Durbin......................................................56
XII. Changes in existing law........................................111
I. Purpose
The Crime Victims' Rights Constitutional Amendment is
intended to restore, preserve, and protect, 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 reduced
from that of the moving party in most criminal prosecutions, 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.'' See, e.g.,
Statement of U.S. Senator Dianne Feinstein, Congressional
Record, May 2, 2000.
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 benefitted 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 continue 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 20 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 33 states, in widely differing
versions, now have state victims' rights amendments.\1\ In
addition, all 50 states have passed rights and protections for
crime victims--although these vary widely from state to state.
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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; OR. Const.; 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 Project (NVCAP)--decided in 1995 to shift its focus
towards passage of a Federal amendment. In 1997, the National
Governors Association passed a resolution 49 to 1 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 of
Parents of MurderedChildren; and Robert E. Preston, co-chairman
of the National Constitutional Amendment Network. Two legal experts
testified in support of the amendment: Professor 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: Professor Jamin Raskin of Washington
College of Law at American University and noted commentator Bruce Fein,
former official at the U.S. 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 Arizona attorney
Barbara LaWall; and Professor Paul Cassell of the University of
Utah College of Law. The following people testified in
opposition to the amendment: Lynne Henderson of Bloomington,
Indiana; 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 two 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. U.S. Associate Attorney General
Raymond C. Fisher testified in support of an amendment.
Additionally, the following witnesses testified in support of
S.J. Res. 44: Professor 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: Professor 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, Senators Kyl and Feinstein
introduced S.J. Res. 3 on January 19, 1999, the opening day of
the Congress. Thirty-three Senators cosponsored the resolution.
On March 24, 1999, the Senate Committee on the Judiciary held a
hearing on S.J. Res. 3. Professor 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 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.
In the 108th Congress, Senators Kyl and Feinstein
introduced S.J. Res. 1 on January 7th, 2003, the opening day of
Congress. On April 8, 2003, the Senate Judiciary Committee held
a hearing on S.J. Res. 3. U.S. Assistant Attorney General Viet
Dinh, the head of the Office of Legal Policy, testified in
support of S.J. Res. 3. Mr. Dinh testified that ``[b]oth the
President and the Attorney General strongly support
guaranteeing rights to victims of violent crime, and we agree
with the sponsors that these rights can only be fully protected
by amending the Constitution of the United States. S.J. Res. 1
is the right way to do it because it strikes a proper balance
between the rights of victims and the rights of criminal
defendants.'' In addition, the following people testified in
favor of the resolution: Steve Twist; Collene Campbell of San
Juan Capistrano, California; Earlene Eason of Gary, Indiana;
and Duane Lynn of Peoria, Arizona. The resolution was opposed
by James Orenstein of New York, New York, and Patricia Perry of
Seaford, New York.
On June 12, 2003, the Subcommittee on the Constitution,
Civil Rights, and Property Rights approved S.J. Res. 3, without
amendment, for full Committee consideration by a vote of 5 to
4. On September 4, 2003, after debate at markups on July 24,
July 29, July 31, and September 4, the Senate Committee on the
Judiciary approved S.J. Res. 3 by a vote of 10 to 8 and ordered
it to be reported favorably, without amendment. The following
senators voted in favor of the Amendment: Hatch, Grassley, Kyl,
DeWine, Sessions, Graham, Craig, Chambliss, Cornyn, and
Feinstein. The following Senators voted against the amendment:
Leahy, Kennedy, Biden, Kohl, Feingold, Schumer, Durbin, and
Edwards. Senator Specter did not vote.
III. The Need for Constitutional Protection
After extensive testimony in hearings held over seven
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).
S.J. Res. 1, addresses many of the concerns raised by
Senators during the floor debate on the previous version, S.J.
Res. 3. As noted constitutional scholar Professor Tribe has
observed:
The current version of the Amendment, S.J. Res. 1,
incorporates language worthy of Constitutional
Amendment. I think your final version of January 7,
2003, resolvesthat problem in a thoughtful and
sensitive way, improving in a number of respects on the earlier drafts
that I have seen. Among other things, the greater brevity and clarity
of this version makes it more fitting for inclusion in our basic law.
That you have achieved such conciseness while fully protecting
defendants rights and accommodating the legitimate concerns that have
been voiced about prosecutorial power and presidential authority is no
mean feat.--Laurence Tribe, Letter To Senators Feinstein and Kyl in
Support of S.J. Res. 1., April 8, 2003.
President George W. Bush announced his support for the
bipartisan Victims' Rights Amendment S.J. Res. 1, on April 16,
2002--at a ceremony honoring crime victim advocates during
National Crime Victims Rights Week:
This amendment makes some basic pledges to Americans.
Victims of violent crime deserve the right to be
notified of public proceedings involving the crime.
They deserve to be heard at public proceedings
regarding the criminal's sentence or potential release.
They deserve to have their safety considered. They
deserve consideration of their claims of restitution.
We must guarantee these rights for all the victims of
violent crime in America.
The Feinstein-Kyl Amendment was written with care,
and strikes a proper balance. Our legal system properly
protects the rights of the accused in the Constitution.
But it does not provide similar protection for the
rights of victims, and that must change.
The protection of victims' rights is one of those
rare instances when amending the Constitution is the
right thing to do. And the Feinstein-Kyl Crime Victims'
Rights Amendment is the right way to do it.
Assistant Attorney General Viet Dinh testified on behalf of
the Justice Department in support of S.J. Res. 1:
Both the President [Bush] and the Attorney General
[Ashcroft] strongly support guaranteeing rights to
victims of violent crime, and we agree with the
sponsors that these rights can only be fully protected
by amending the Constitution of the United States. S.J.
Res. 1 is the right way to do it because it strikes the
proper balance between the rights of victims and the
rights of criminal defendants.
As the principal Federal law enforcement agency, the
Department of Justice is keenly aware of the effects
that the Crime Victims' Rights Amendment would have on
the landscape of the criminal justice system. There is
no doubt that, were the amendment to pass, it would
prompt significant adjustments in how Federal, State
and local prosecutors discharge their responsibilities.
Accordingly, the Department has reviewed the proposed
amendment in light of our prosecutorial function within
the criminal justice system, our commitment to
fundamental fairness and justice for defendants, and
our support of the rights of crime victims. We believe
the language of the proposed amendment properly
advances all of these interests.--Written Testimony of
Viet Dinh before the Senate Judiciary Committee, April
8, 2003.
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 former 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. In an April 8, 2003
letter to Senators Kyl and Feinstein, 42 state Attorneys
General expressed their strong support to pass S.J. Res. 1, the
proposed amendment to protect the rights of crime victims:
As Attorneys General from diverse regions and
populations in our nation, we continue to see a common
denominator in the treatment of crime victims
throughout the country. Despite the best intentions of
our laws, too often crime victims are still denied
basic rights to fair treatment and due process that
should be the birthright of every citizen who seeks
justice through our courts. We are convinced that
statutory protections are not enough; only a federal
constitutional amendment will be sufficient to change
the culture of our legal system.
The rights you propose in S.J. Res. 1 are moderate,
fair, and yet profound. They will extend to crime
victims a meaningful opportunity to participate in
critical stages of their cases. At the same time, they
will not infringe on the fundamental rights of those
accused or convicted of offenses. In addition,
extending these fundamental rights to victims will not
interfere with the proper functioning of law
enforcement.
The Committee heard compelling testimony from several
witnesses whose own experiences with the justice system are
evidence of the need for victims' rights to be protected by our
fundamental law. First among them was Collene Thompson
Campbell, from San Juan Capistrano, California, whose son Scott
was murdered in 1982 and whose brother, racing legend
MickeyThompson and his wife Trudy, were murdered in 1989. Collene and
her husband Gary were not permitted to be in the courtroom during three
trials for the men who murdered their son Scott. They literally were
forced to sit in the hallway outside the courtroom while the murderers
family was ushered in to reserved seats in the front row of the
gallery.
Now, more than twenty years after Scott's murder and the
beginning of their nightmare in the justice system, Collene and
Gary Campbell await trial for the man accused of murdering
Collene's brother and sister-in-law, and they have been told
they will not be allowed to be in the courtroom during the
trial. Their right to fair treatment remains illusory and
unfulfilled. Collene asked the Committee in her testimony, ``*
* * [H]ow in this great nation have we allowed the violent
criminals to have more rights than honest, law-abiding good
American citizen, who, through no fault of their own, have
become victims of violent crime?'' It is a question that will
continue to haunt our justice system until we establish
constitutional rights for crime victims. Collene Campbell
concluded, ``We, who have lived the tortures of being crime
victims, but who have also had the privilege to live our lives
as honorable Americans, are simply asking to have the same
level of constitutional rights as the criminal, no more--no
less; that seems more than fair doesn't it?'' The Committee
agrees that it is fair to give crime victims constitutional
rights.
Earlene Eason, of Gary, Indiana, told the Committee about
the murder of her 16 year old son Christopher in Minneapolis,
Minnesota while he visited friends during summer recess. She
testified how she was not notified of proceedings and how she
was not notified of the plea bargain that was offered to her
son's murderer. She was not given an opportunity to attend the
proceeding where the plea bargain was offered and accepted. As
she told the Committee, ``I was unable to appear in court to
try to object to the plea bargain or speak at sentencing, even
though it was very important to do so.'' She was told she could
not get restitution. In clear and unequivocal terms Ms. Eason
concluded, ``People receive more compassion for the loss of a
pet than we received from the justice system for the loss of
our son.''
The Committee heard powerful testimony from Mr. Duane Lynn
of Phoenix, Arizona. Duane and his wife Nila were three months
short of their 50th wedding anniversary when Richard Glassel,
angered at their homeowner's association, walked into the
association meeting and started shooting. Mrs. Lynn was one of
two murdered; she died in Mr. Lynn's arms speaking her last
words to him. Mr. Lynn told the Committee that ``[i]t took
almost 3 years'' before he was able to offer a victim impact
statement to the court regarding his wife. Mr. Lynn also noted
that he was ``told that I had to stop short of talking about
how I felt this murderer should be sentenced. I could give no
comment on that. * * * The jury never heard that I wanted to
recommend a life sentence. They gave him the death penalty.''
The experiences of the Campbells, Earlene Eason, and Duane
Lynn demonstrate just how far off course our justice system has
gone in its treatment of crime victims. Only an amendment to
the U.S. Constitution can restore fairness and balance to this
system--and such an amendment is fully within the mainstream
tradition of the Constitution. As witness Steve Twist told the
Committee, ``Our cause today is a cause in the tradition of the
great struggles for civil rights. When a woman who was raped is
not given notice of the proceedings in her case, when the
parents of a murdered child are excluded from court proceedings
that others may attend, when the voice of a battered woman or
child is silenced on matters of great importance to them and
their safety--on matters of early releases and plea bargains
and sentencing--it is the government and its courts that are
the engines of these injustices.'' Only an amendment to the
U.S. Constitution can remedy great injustice once and for all.
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. For
example, 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. In fact, one
interesting aspect of the debate on S.J. Res. 1 is that many of
the arguments opponents have made to a Victims' Rights
Amendment are similar to arguments made against proposed
successful amendments conferring rights on racial minorities
and women. See, e.g., Statement of Senator Dianne Feinstein,
Senate Judiciary Committee, Sept. 4, 2003.
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, former 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 processes that strongly affect their
lives.--Laurence H. Tribe & Paul G. Cassell, Embed the
Rights of Victims in the Constitution, L.A. Times, July
6, 1998, at B7.
Participation of victims is not only a value consistent
with our constitutional structure but something that can have
valuable benefits in its own right. As experts on the
psychological effects of victimization have explained, there
are valuable therapeutic reasons to ensure victim participation
in the criminal justice process:
The criminal act places the victim in an inequitable,
``one-down'' position in relationship to the criminal,
and the victims' trauma is thought to result directly
from this inequity. Therefore, it follows that the
victims' perceptions about the equity of their
treatment and that of the defendants affects their
crime-related psychological trauma. [F]ailure to * * *
offer the right of [criminal justice] participation
should result in increased feelings of inequity on the
part of the victims, with a corresponding increase in
crime-related psychological harm.--Dean G. Kilpatrick &
Randy K. Otto, Constitutionally Guaranteed
Participation in Criminal Proceedings for Victims:
Potential Effects on Psychological Functioning, 34
Wayne L. Rev. 7, 19 (1987).
For all these reasons, it is the view of the Committee that
it is vital that victims be guaranteed an appropriate
opportunity to participate in our criminal justice process.
LESS THAN FEDERAL CONSTITUTIONAL PROTECTION HAS BEEN INADEQUATE
In testimony on S.J. Res. 3, an earlier version of the
Amendment, 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. Marlene
Young, a representative of the National Organization for Victim
Assistance (NOVA), gave some powerful examples to the
Committee:
Roberta Roper, who testified eloquently before the
Committee in her capacity as the co-chair of the National
Victims Constitutional Amendment Network, was denied the
opportunity to sit in the courtroom at the trial of her
daughter's murderer because it was thought she might, by her
presence, influence the outcome.
Sharon Christian, 20 years old, a young victim of
rape reported the crime. After the offender was arrested, she
was victimized by the system when, two 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
courtultimately ordered restitution in the entirely arbitrary
and utterly inadequate amount of $387.
Ross and Betty Parks, who's daughter Betsy was
murdered, waited seven years for a murder trial. The delay was
caused, in part, by repeated motions that resulted in delay--
thirty-one motions at one point.
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 (April 15, 1997).
Important findings of the study included:
Nearly half of the victims (44 percent) in States
with strong protections for victims and more than half of the
victims (70 percent) in States with weak protections did not
receive notice of the sentencing hearing--notice that is
essential for victims to exercise their right to make a
statement at sentencing.
While both of the States with strong statutes had
laws requiring that victims be notified of plea negotiations,
and neither of the weak protection States had such statutes,
victims in both groups of States were equally unlikely to be
informed of such negotiations. Laws requiring notification of
plea negotiations were not enforced in nearly half of the
violent crime cases included in the study.
Substantial numbers of victims in States with both
strong and weak protection were not notified of various stages
in the process, including bail hearings (37 percent not
notified in strong protection states, 57 percent not notified
in weak protection states); the pretrial release of
perpetrators (62 percent not notified in strong protection
states, 74 percent not notified in weak protection States); and
sentencing hearings (45 percent not notified in strong
protection States, 70 percent not notified in weak protection
States).
A later report based on the same large data base found that
racial minorities are most severely affected under the existing
patchwork of victims' protections. National Victim Center,
Statutory and Constitutional Protection of Victims' Rights:
Implementation and Impact on Crime Victims-Sub-Report:
Comparison of White and Non-White Crime Victim Responses
Regarding Victims' Rights 5 (June 5, 1997). Echoing these
findings of disparate impact, another witness reported to the
Committee, ``There being no constitutional mandate to treat all
of America's victims, white and non-white, with dignity and
compassion * * * minority victims will continue to feel the
sting of their victimization much longer than their white
counterparts. Because of the large percentage of minority
victims in the system, their neglect * * * continues to create
disrespect for a process in the communities where such
disrespect can be least afforded.'' Senate Judiciary Committee
Hearing, April 28, 1998, statement of Norm S. Early, 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 commentator opposing the
amendment took the position that ``if you have struggled with a
problemfor 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 twenty 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. Tennessee, 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). Federalism was intended to be a protection for the
liberties of Americans against the encroachment of excessive
government power. It cannot, therefore, be a violation of
federalist principles to expand liberty by extending
participatory rights to crime victims.
Amending the Constitution is, of course, a significant
step--one which the Committee does not recommend lightly. But
to protect victims, it is an appropriate one. As Thomas
Jefferson once said: ``I am not an advocate for frequent
changes in laws and constitutions, but laws and institutions
must go hand in hand with the progress of the human mind. As
that becomes more developed, more enlightened, as new
discoveries are made, new truths discovered and manners and
opinions change, with the change of circumstances, institutions
must advance also to keep pace with the times.'' Thomas
Jefferson, letter to Samuel Kercheval, July 12, 1816, The
Writings of Thomas Jefferson, ed. Paul L. Ford, vol. 10, pp.
42-43 (1899). Throughout the country, there is a strong
consensus that victims' rights deserve to be protected. But at
the same time, as a country, we have failed to find a way to
fully guarantee rights for victims in criminal justice
processes of vital interest to them. It is time to extend
Federal constitutional recognition to those who are too often
forgotten by our criminal justice system--the innocent victims
of crime.
IV. The Need for Specific Rights in the Process
With this need for Federal constitutional protection of
victims' rights in mind, the Committee finds that rights under
eight general headings should be protected in an amendment to
the Federal constitution. Each of these nine rights is
discussed in turn.
1. Right to notice of public 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, Earlene Eason, in testifying in support of
S.J. Res. 1 stated:
We also experienced significant financial hardship
because of other failures to give us adequate notice.
All of this wasted expense, which we could not afford,
was due to constant trips to Minneapolis for court
dates, which were frequently changed without adequate
notice to me and my fiance. My son's father, who
resides in California, purchased several airline
tickets, but he was never advised by the District
Attorney's office of changes in court dates. He became
so frustrated that he gave up on coming to any hearing
due to the expense of cancelled tickets and the fear of
losing his job from the disruption in his work
schedule. Senate Judiciary Committee Hearing, April 8
2003, Prepared Statement of Earlene Eason.
For example, Rita Goldsmith, 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.
The Committee concludes that victims deserve notice of
important criminal justice proceedings relating to the crimes
committed against them. In those rare circumstances when notice
may compromise the safety of another person or may compromise a
law enforcement investigation the language of the amendment
would allow the right to be restricted as long as necessary to
achieve the stated ends. Moreover, the right only attaches to
``public'' proceedings and there are mechanisms in the law that
permit the closure of proceedings.
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:
Twenty 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 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 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 three weeks earlier on charges of kidnaping
Byron and raping her at gunpoint. A relative's payment ofbond
money allowed Harris to regain his freedom temporarily. No one thought
to notify Byron or the police of her release. See Jeffrey A. Cross,
Note, The Repeated Sufferings of Domestic Violence Victims Not Notified
of Their Assailant's Pre-Trial Release from Custody: A Call for
Mandatory Domestic Violence Victim Notification Legislation, 34 J.
Family L. 915 (1996) (collecting this and other examples). The
Committee concludes that victims deserve notice before violent
offenders are released.
Recent technological changes have also simplified the
ability to provide notice to crime victims. Today some
jurisdictions use automated voice response technology to notify
victims of when offenders are released. New York City, for
example, recently implemented a system in which any victim with
access to a telephone can register for notification simply by
calling a number and providing an inmate's name, date of birth,
and date or arrest. If an inmate is released, the victim
receives periodic telephone calls for 4 days or until the
victim confirms receiving the message by entering a personal
code. Victim assistance providers and police have been trained
to explain the system to victims. Other jurisdictions have
developed other means of notification, including websites that
allow victims to track the location of inmates at all times.
While recent developments in these innovative jurisdictions are
encouraging, notification needs to be made uniformly available
for crime victims around the country.
3. Right not to be excluded
The Committee concludes that victims deserve the right not
to be excluded from 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 not to be excluded from
court proceedings, victims suffer a further loss of dignity and
control of their own lives. 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. Sec. 10606(b)(4), but the results have proven
to be unfortunate. In the Oklahoma City bombing case, for example, a
district court concluded that testimony about the impact of their loss
from family members of deceased victims of the bombing would be
materially affected if the victims attended the trial. This perplexing
ruling was the subject of unsuccessful emergency appeals (see Cassell
1997 testimony) and ultimately Congress was forced to act. See Victim
Rights Clarification Act of 1997 (Pub. L. 105-6, codified at 18 U.S.C.
Sec. Sec. 3510, 3481, 3593). Even this action did not fully vindicate
the victims' right to attend that trial. The Committee heard testimony
from a mother who lost her daughter in the bombing that even this Act
of Congress did not resolve the legal issues sufficiently to give the
victims the legal assurances they need to attend all the proceedings.
Senate Judiciary Committee Hearing, April 16, 1997, statement of Marsha
Kight, at 73-74. Rather than create a possible pretext for denying
victims the right to attend a trial or extended litigation about the
speculative circumstances in victim testimony might somehow be
affected, the Committee believes that such a victim's right to attend
trial should be 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 Marsha 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.
4. Right to be heard
The Committee concludes that victims deserve the right to
be heard at specific points in the criminal justice process:
public release, plea, sentencing, reprieve and pardon hearings.
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 step-
father for abusing her and her sister: ``When I read [the
impact statement], it healed a part of me--to speak to [the
defendant] and tell him how much he hurt 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.
The last step in the criminal 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 decision made at a public proceeding or that would
lead to a release of the individual in question, and an
opportunity to be heard before reprieve or pardon action is
taken.
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: ``thedecision 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.
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
``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. Sec. 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, three 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 of 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.'' Email from Roger Adams to Jamie Orenstein, Aug. 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 is 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 at
any public proceeding held before a pardon or reprieve decision
is made, improving disparate and haphazard treatment that
victims currently suffer in the clemency process. Only a
constitutional amendment can insure 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 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 threatenedby 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.
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.
6. Right to consideration of the victim's interest in avoiding
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 five year old child spanned more than
fifteen 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 two more hours of
questioning of the child's mother. Continuance of the cross
examination was set for ten days later. The victims 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
seven 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.
As Collene Campbell testified concerning her families
experience after the murder of her son and brother:
I'm certain this is not what the Founders of this
great nation and the authors of our Constitution
intended and it needs to be corrected immediately. At a
huge cost to taxpayers, and my families personal life,
we have continued to be in the court system for 21
straight years, with no right for a speedy trial and
there is no end in sight.
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. Consideration of just and timely claims to restitution
Crime imposes tremendous financial burdens on victims of
crime. The Bureau of Justice Statistics reports that each year
approximately two million people in America are injured as
theresult 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), Aug. 19, 1982 (to accompany S. 2420).
Consistent with this principle, Federal and State courts
have long had power to order restitution against criminal
offenders. In practice, however, restitution orders are not
entered as frequently as they should be. At the Federal level,
for example, this Committee recently investigated Federal
restitution procedures and found that restitution orders were
often entered haphazardly and that ``much progress remains to
be made in the area of victim restitution.'' S. Rep. 104-179,
at 13. Similarly, a recent report from the U.S. Department of
Justice concluded that ``[w]hile restitution has always been
available via statute or common law, it remains one of the most
underutilized means of providing crime victims with a
measurable degree of justice. Evidence of this is apparent both
in decisions to order restitution and in efforts to monitor,
collect, and disperse restitution payment to victims.'' U.S.
Department of Justice, Office for Victims of Crime, New
Directions From the Field: Rights and Services for the 21st
Century 357 (1998).
The President's Task Force on Victims of Crime long ago
recommended that ``[a] restitution order should be imposed in
every case in which a financial loss is suffered, whether or
not the defendant is incarcerated.'' President's Task Force on
Victims of Crime, Final Report 79 (1982). As a step in this
direction, in 1982 Congress passed the Victims Witness
Protection Act (Pub. L. 97-291, codified at 18 U.S.C.
Sec. Sec. 1501, 1503, 1505, 1510, 1512-1515, 3146, 3579, 3580).
More recently, to respond to the problem of inadequate
restitution at the Federal level, this Committee recently
recommended, and Congress approved, the Mandatory Victim
Restitution Act, codified at 18 U.S.C. Sec. 3663A and 3664.
Valuable though this legislation may turn out to be, it applies
only in Federal cases. To require just and timely consideration
of restitution throughout the country, Federal constitutional
recognition of the significance 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.
In a letter to the committee Sue Russell of Vermont wrote
of the failure of her state's justice system to award any
restitution for her in the aftermath of the devastating assault
committed against her, despite the fact that her attacker now
earns a significant wage from the state prison system. This
injustice must stop, and stop uniformly across the nation for
every American.
8. The right to standing
If victims rights are to be meaningful and enforceable
victims need one simple legal tool: Standing. Section 3 of the
amendment makes it clear that victims and their representatives
have standing to enforce their rights in court.
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.
Section 1. The rights of victims of violent crime, being capable of
protection without denying the constitutional rights of those
accused of victimizing them * * *
This preamble establishes two important principles about
the rights established in the amendment: First, they are not
intended to deny the constitutional rights of the accused, and
second, they do not, in fact, deny those rights. The task of
balancing rights, in the case of alleged conflict, will fall,
as it always does, to the courts, guided by the constitutional
admonition not to deny constitutional rights to either the
victim or the accused. (See Killian and Costello, The
Constitution of the United States of America: Analysis and
Interpretation, Senate Document 103-6, U.S. Gov't Printing
Office, p. 1105 (1992). [``Conflict between constitutionally
protected rights is not uncommon.'' The text continues
discussing the Supreme's Court balancing of ``a criminal
defendant's Fifth and Sixth Amendment rights to a fair trial
and the First Amendment's rights protection of the rights to
obtain and publish information about defendants and trials.'']
Id.).
Nothing removes from the States their plenary authority to
enact definitional laws for purposes of their own criminal
justice systems. Such legislative definition is appropriate
because criminal conduct depends on State and Federal law for
its definition in the first instance. Since the legislatures
define what is criminal conduct, the courts will naturally turn
to them to determine who is a ``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
courts, in interpreting the amendment, will use a similar
definition focusing on the criminal charges that have been
filed in court.
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 ``violent
crime.'' The phrase ``violent crime'' 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 ``violent crime''
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. Sec. 16. Only this broad
construction will serve to protect fully the interests of all
those affected by criminal violence.
``Violent crimes'' 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
``violent crime'' 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 ``violent crime'' 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
``violent crimes'' for purposes of the amendment, if
identifiable victims exist. Similarly, some crimes are so
inherently threatening of physical violence that they could be
``violent crime'' 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 ``violent crimes'' 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 ``violent crimes,'' 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
violent crime, 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
``violent crimes.''
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 violent crime''--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 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.
are hereby established
The amendment provides that the rights of victims are
``hereby established.'' The phrase, which is followed by
certain enumerated rights, is not intended to ``deny or
disparage'' rights that may be established by other federal or
state laws. The amendment establishes a floor and not a ceiling
of rights and States will remain free to enact (or continue, as
indeed many have already enacted) more expansive rights than
are ``established'' in this amendment. Rights established in a
state's constitution would be subject to the independent
construction of the state's courts. See Michigan v. Long, 463
U.S. 1032 (1983). The Committee does not intend the use of the
words ``hereby established'' to elevate the rights of victims
over any other rights in the Constitution.
and shall not be denied by any State or the United States and may be
restricted only as provided in this article.
In this clause, and in Section 2 of the amendment, an
important distinction between ``denying'' rights and
``restricting'' rights is established. As used here, ``denied''
means to ``refuse to grant,'' see Webster's New Collegiate
Dictionary 304 (1977). In other words, it means to prohibit the
exercise of the right completely. The amendment, by its terms,
prohibits such a denial. At the same time, the language
recognizes that no constitutional right is absolute and
therefore permits ``restrictions'' on the rights, but only, as
provided in Section 2, in three narrow circumstances. This
direction settles what might otherwise have been years of
litigation to adopt the appropriate test for when, and the
extent to which, restrictions will be allowed.
being capable of protection without denying the constitutional rights
of those accused of victimizing them.
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.
The language also eliminates a previous concern that the
courts will woodenly interpret the later-adopted Crime Victims'
Rights Amendment as superseding 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. Finally, language in Section 3 provides assurance that
in harmonizing these rights ``[n]othing in this article shall
be construed to provide grounds for a new trial.''
Sec. 2. A victim of violent crime shall have the right to reasonable
and timely notice of any public proceeding involving 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 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. 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 ``public
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. See 28 C.F.R. 50.9. 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.
Sec. 2. Right to ``reasonable notice of * * * any release or escape of
the accused''
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 home town.
The release must be one ``relating to the crime.'' This
includes not only a release after a criminal conviction but
also, for example, a release of a defendant found not guilty of
a crime by reason of insanity and then hospitalized in custody
for further treatment, or a release pursuant to a habitual sex
offender statute.
Sec. 2. * * * not to be excluded from such public proceedings
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'' 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.
Sec. 2. ``reasonably to be heard at public release, plea, sentencing,
reprieve, and pardon proceedings
The amendment confers on crime victims a right to be heard
by the relevant decision makers at four critical points in the
criminal justice process before the final decisions are made.
First, crime victims will have the right to be heard at
``release'' proceedings. 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, rather
simply to provide relevant information that the court can
consider in making its determination about release.
This phrase also encompasses, for example, hearings to
determine any release (including comparable releases during or
after an appeal) on bail, personal recognizance, to the custody
of a third person, or under any other conditions, including
pre-trial diversion programs. Other examples of release include
work release and home detention. It also includes parole
hearings or their functionalequivalent, 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. There would be 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 public
plea proceedings. This gives victims the right to be heard
before the court accepts a plea bargain entered into by the
prosecution and the defense before it becomes final. The
Committee expects that each State will determine for itself at
what stage this right attaches. It may be that a State decides
the right does not attach until sentencing if the plea can
still be rejected by the court after the pre-sentence
investigation is completed. As the language makes clear, the
right involves being heard when the court holds its hearing on
whether to accept a plea. Thus, victims do not have the right
to be heard by prosecutors and defense attorneys negotiating a
deal. Nonetheless, the Committee anticipates that prosecutors
may decide, in their discretion, to consult with victims before
arriving at a plea. Such an approach is already a legal
requirement in many States, see National Victim Center, 1996
Victims' Rights Sourcebook 127-31 (1996), People v. Stringham,
253 Cal. Rptr 484 (Cal. Ct App. 1988), 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, among other things. Second, the opportunity for
victims to speak at sentencing can sometimes provide a powerful
catharsis. See United States v. Smith, 893 F. Supp. 187, 188
(E.D.N.Y. 1995), United States v. Hollman Cheung, 952 F. Supp.
148, 151 (E.D.N.Y. 1997). Because the right to speak is based
on both of these grounds, a victim will have the right to be
heard even when the judge has no discretion in imposing a
mandatory prison sentence.
State and Federal statutes already frequently provide
allocution rights to victims. See, e.g., Fed. R. Evid. 32(c),
Ill. Const. Art. 1, Sec. 8.1(a)(4). The Federal amendment would
help to insure that these rights are fully protected. The
result is to enshrine and perhaps extend the Supreme Court's
decision in Payne v. Tennessee, 501 U.S. 808 (1991),
recognizing the propriety of victim allocution in capital
proceedings. Victim impact statements concerning the character
of the victim and the impact of the crime remain
constitutional. See Douglas E. Beloof, Constitutional
Implications of Crime Victims as Participants, 88 Cornell Law
Review 282 (2003). 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 statements offered at sentencing does not confer any
right to have such statement heard 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. 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 to ``be heard.'' 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 of statements, but should not require the victim to
submit a statement for approval before it is offered. No such
requirement is put on the defendant and none should be imposed
on the victim. The Due Process clause requires that the
victim's statement not be ``unduly prejudicial,'' see Payne v.
Tennessee. At the same time, victims should always be given the
power to determine the form of the statement. Simply because a
decision making 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 does not intend that the right to be
heard be limited 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 right to be heard is sufficiently flexible
to encompass such communications.
The right to be heard is also limited to ``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.
The right to be heard at public release proceedings confers
on victims the right to be heard at public parole proceedings.
In some jurisdictions, however, parole decisions are not made
in publicproceedings, 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.
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.
Sec. 2 (cont.). The right reasonably to be heard at reprieve, and
pardon proceedings
The amendment extends the right to be heard in connection
with pardons and reprieves only to those cases in which the
decision is reached after a ``proceeding.''
Finally, Section 4 provides that ``nothing in this article
shall affect the President's authority to grant reprieves or
pardons.''
Sec. 2 (cont.). Right to ``adjudicative decisions that duly consider
the victim's safety''
This right requires judges, magistrates, parole boards, and
other such officials to consider the safety of the victim in
determining any conditional release. As with the right to be
heard on conditional releases, this right will extend to
hearings to determine any pre-trial or post-trial release on
bail, personal recognizance, to the custody of a third person,
on work release, to 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 Eighth
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.
Sec. 2 (cont.). Right to adjudicative decisions that duly consider * *
* interest in avoiding 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 future legislation may
help implement this right. For example, the Speedy Trial Act of
1974 (Pub. L. 93-619 (amended by Pub. L. 96-43), codified at 18
U.S.C. Sec. Sec. 3152, 3161) complements, protects, and gives
content to a defendant's constitutional speedy trial right.
Similar legislation could enforce the victims' new right in
this area.
Sec. 2 (cont.). Right to ``adjudicative decisions that duly consider *
* * just and timely claims to restitution from the offender''
This provision recognizes that an offender should be held
responsible for the harm his crime caused, through an order of
restitution at sentencing. The Committee has previously
explained this philosophy in some detail in connection with the
Mandatory Victim Restitution Act, codified at 18 U.S.C.
Sec. Sec. 3663A and 3664. The relevant details for implementing
the Amendment will be spelledout under the resulting case law
or, more likely, statutes to enforce the amendment. However, this
amendment does not confer on victims any mandatory right to
restitution, nor any rights with regard to a particular payment
schedule.
The right conferred on victims is to consideration of just
and timely claims of restitution. 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.
Sec 2. (cont.). These rights shall not be restricted except when and to
the degree dictated by a substantial interest in public safety
or the administration of criminal justice, or by compelling
necessity.''
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
restrictions language in the amendment explicitly recognizes
that in certain rare circumstances restrictions may need to be
created to victims' rights.
First, in mass victim cases, there may be a need to provide
certain limited restrictions 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 inter-gang 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 restrictions
are permitted for a ``substantial interest'' in public safety
or the administration of criminal justice. In choosing this
standard, formulated by the U.S. Supreme Court, the Committee
seeks to provide adequate procedures for law enforcement and
the courts while ensuring that the restriction does not swallow
the rights. The Committee also notes that the administration of
criminal justice exception covers habeas corpus filings and
proceedings, including those pursuant to 28 U.S.C.
Sec. Sec. 2254 and 2255. In all other contexts only a
``compelling'' interest, also a standard formulated by the U.S.
Supreme Court, will operate to limit the right. The Committee
stresses that defendants' constitutional rights may well meet
this standard in many cases. It is also important to note that
the Constitution contains no other explicit ``restrictions'' to
victims'' rights.
Sec. 3. ``Nothing in this article shall be construed to provide grounds
for a new trial
This provision is designed to protect criminal trials
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. However, 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 leaves open the possibility that Congress and the
states, within their respective jurisdictions, could draft
legislation providing remedies in appropriate circumstances.
Sec. 3 (cont.). ``Nothing in this article shall be construed to * * *
authorize any claim for damages.''
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 orfederal level. Nor does it limit appropriate
remedies within the criminal process itself.
Sec. 3 (cont.). Only the victim or the victim's lawful representative
may assert the rights established hereunder, and no person
accused of the crime may obtain any form of relief hereunder.
This provision confers on victims and their lawful
representatives standing to assert their rights. The term
``standing'' is used here in its conventional legal sense as
giving victims the opportunity to be heard about their
treatment, that is, to have the merits of their claims
considered. For example, under this provision victims have the
right to challenge their exclusion from the trial of the
accused perpetrators of the crime. This overrules the approach
adopted by some courts of denying victims an opportunity to
raise claims about their treatment. See, e.g., United States v.
McVeigh, 106 F.3d 325, 334-35 (10th Cir. 1997) (finding victims
of the Oklahoma City bombing lacked standing to challenge their
exclusion from certain proceedings). The provision is phrased
in exclusive terms--``Only the victim or the victim's lawful
representatives''--to avoid any suggestion that other,
potentially intermeddling, persons have the right to be heard
in criminal proceedings, and to avoid the suggestion that the
accused or convicted offender has standing to assert the rights
of the victim.
There will be circumstances in which victims find it
desirable to have a representative assert their rights or make
statements on their behalf. This provision recognizes the right
of a competent victim to choose a representative to exercise
his or her rights, as provided by law. Typically victims'
rights statutes have provided a means through which victims can
select their representatives without great difficulty.
Other ``lawful representatives'' will exist in the context
of victims who are deceased, are children, or are otherwise
incapacitated. In homicide cases, victim's rights can be
asserted by surviving family members or other persons found to
be appropriate by the court. This is the approach that has
uniformly been adopted in victims' rights statutes applicable
in homicide cases, thus insuring that in this most serious of
crimes a voice for a victim continues to be heard. Of course,
in such cases the ``lawful representative'' would not
necessarily be someone who was the executor of the estate, but
rather someone involved in issues pertaining to the criminal
justice process. In cases involving child victims, a parent,
guardian or other appropriate representative can do the same.
For victims who are physically or mentally unable to assert
their rights, an appropriate representative can assert the
rights.
In all circumstances involving a ``representative,'' care
must be taken to ensure that the ``representative'' truly
reflects the interests--and only the interests--of the victim.
In particular, in no circumstances should the representative be
criminally involved in the crime against the victim. The
mechanics for dealing with such issues and, more generally, for
the designation of ``lawful'' representatives will be provided
by law--that is, by statute in relevant jurisdiction, or in its
absence by court rule or decision.
Finally, no one accused of the crime could assert any of
the rights or obtain any form of relief under the provisions of
the Amendment.
Sec. 4. The Congress shall have the power to enforce by appropriate
legislation the provisions of this article.
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.
Sec. 4 (cont.). Nothing in this article shall affect the President's
authority to grant reprieves or pardons
The language of the amendment is clear. As Assistant
Attorney General Viet Dinh testified before the Committee, on
behalf of the Justice Department, ``* * * the language will
prevent Congress from enacting legislation that would affect
the President's power to grant reprieves and pardons. The
President's reprieve and pardon power under Article II of the
Constitution is plenary and is in no way affected by the
proposed amendment.''
Sec. 5. This article shall be inoperative unless it has been ratified
as an amendment to the Constitution by the legislatures of
three-fourths of the several states within 7 years from the
date of its submission to the States by the Congress.
Section 5 (cont.). This article shall take effect on the 180th day
after the ratification 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.
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).
VI. Vote of the Committee
The committee considered on S.J. Res. 1 (Add votes on
Amendments and the Bill).
1. Senator Durbin offered an amendment. The amendment to
re-designate sections 4 and 5 as sections 5 and 6, and insert a
new section 4, ``Nothing in this article shall be construed to
deny ordiminish the rights of the accused as guaranteed under
this Constitution.'' The amendment was defeated by a vote of 6 yeas to
11 nays, with 2 voting pass.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl DeWine (proxy)
Feingold Sessions (proxy)
Durbin Graham (proxy)
Edwards (proxy) Craig
Chambliss
Cornyn
Feinstein
Schumer
Hatch
2. Senator Feingold offered an amendment. The amendment to
add that the federal government as well as state government can
``restrict'' as well as ``deny'' victims' rights. The amendment
was defeated by a vote of 7 yeas to 10 nays, with 2 voting
present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine (proxy)
Feingold Sessions (proxy)
Schumer (proxy) Graham
Durbin Craig
Edwards (proxy) Chambliss
Cornyn
Feinstein
Hatch
3. Senator Leahy offered a statutory amendment. The
amendment in the nature of a complete substitute. The amendment
was defeated by a vote of 7 yeas to 10 nays, with 2 voting
present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine (proxy)
Feingold Sessions (proxy)
Schumer (proxy) Graham
Durbin Craig
Edwards (proxy) Chambliss (proxy)
Cornyn
Feinstein
Hatch
4. Senator Durbin offered an amendment. The amendment to
add that a victim's right not to be excluded from public
proceedings does not apply when the court determines that the
victim's testimony would be materially affected if the victim
hears other testimony at trial. The amendment was defeated by a
vote of 7 yeas to 10 nays, with 2 voting present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine
Feingold Sessions
Schumer (proxy) Graham
Durbin Craig
Edwards (proxy) Chambliss
Cornyn
Feinstein
Hatch
5. Senator Durbin offered an amendment. The amendment to
add that victims' rights amendment shall not be construed to
provide grounds to stay or continue any trial, reopen any
proceeding, or invalidate any ruling (with exceptions) or to
provide victims' rights in future proceedings. The amendment
was defeated by a vote of 8 yeas to 10 nays, with 1 voting
present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Biden (proxy) DeWine (proxy)
Kohl (proxy) Sessions
Feingold Graham (proxy)
Schumer (proxy) Craig
Durbin Chambliss
Edwards (proxy) Cornyn
Feinstein
Hatch
6. Senator Leahy offered an amendment. The amendment to
make clear that this constitutional amendment does not affect
the President or a ``Governor's'' authority to grant reprieves
or pardons. The amendment was defeated by a vote of 7 yeas to
10 nays, with 2 voting present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine (proxy)
Feingold Sessions (proxy)
Schumer (proxy) Graham (proxy)
Durbin Craig
Edwards (proxy) Chambliss
Cornyn
Feinstein
Hatch
7. Senator Feingold offered an amendment. The amendment to
expand the reasons victims' rights may be restricted to include
a substantial interest in the ``administration of justice.''
The amendment was defeated by a vote of 7 yeas to 10 nays, with
2 voting present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine (proxy)
Feingold Sessions
Schumer (proxy) Graham (proxy)
Durbin (proxy) Craig
Edwards (proxy) Chambliss
Cornyn
Feinstein
Hatch
8. Senator Feingold offered an amendment. The amendment to
delete the phrase that states that the rights of victims of
violent crime ``are hereby established.'' The amendment was
defeated by a vote of 7 yeas to 10 nays, with 2 voting present.
YEAS NAYS
Leahy Grassley
Kennedy (proxy) Kyl
Kohl (proxy) DeWine (proxy)
Feingold Sessions
Schumer (proxy) Graham (proxy)
Durbin (proxy) Craig
Edwards (proxy) Chambliss
Cornyn
Feinstein
Hatch
9. The Committee voted on final passage. The resolution was
ordered favorably reported, without amendment, by a roll call
vote of 10 yeas to 8 nays, with 1 voting pass.
YEAS NAYS
Grassley Leahy
Kyl Kennedy (proxy)
DeWine (proxy) Biden (proxy)
Sessions Kohl (proxy)
Graham (proxy) Feingold
Craig Schumer
Chambliss Durbin (proxy)
Cornyn
Feinstein
Hatch Edwards (proxy)
VII. Cost Estimate
S.J. Res. 1--Proposing an amendment to the Constitution of the United
States to protect the rights of crime victims
S.J. Res. 1 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
prosecuted at the federal level. Enactment of S.J. Res. 1 would
not affect direct spending or receipts.
S.J. Res. 1 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.
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 would be required to take
action on the resolution, either to reject it or to approve it.
The CBO staff contacts for this estimate are Mark Grabowicz
(for federal costs), and Melissa Merrell (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. 1 will not have a direct regulatory
impact.
IX. ADDITIONAL VIEWS OF SENATOR HATCH
At the outset, I would like to commend Senators Kyl and
Feinstein for their unwavering commitment and tireless efforts
to providing a constitutional guarantee for the rights of crime
victims. I firmly believe that we should protect the rights of
victims of crime.
The version of the Victims' Rights Amendment introduced in
this Congress contains some significant differences from
earlier versions. While I always have supported a
constitutional amendment for victims' rights, I previously
expressed concerns over various provisions in earlier texts. I
am heartened to see that most of my earlier concerns have been
addressed by these revisions.
For example, the last clause of Section 1 of the amendment
proposed in S.J. Res. 3 in the 106th Congress and in S.J. Res.
44 in the 105th Congress provided that victims have the right
``to reasonable notice of the rights established'' by the
amendment. I was concerned that this language was unnecessary
and that it was unlike other constitutional provisions because
it created an affirmative duty on the Government to provide
notice of what rights the Constitution provides. I am pleased
to note that the troublesome language has been deleted from
S.J. Res. 1.
I also appreciate the deletion of a provision in earlier
versions of this amendment that allowed victims to ``reopen''
proceedings relating to conditional release. Although I have
always supported the consideration of a victim's views and
safety concerns, allowing a victim to ``reopen'' a bail
decision might infringe upon a defendant's constitutionally
protected liberty interest in conditional release, once such
release is granted.
The latest version of S.J. Res. 1 also modified the
standard for restricting victims' rights. I was concerned that
earlier versions provided a standard that could in some
circumstances prove too rigid to adequately protect the public
and ensure the administration of justice. In particular,
earlier versions provided that ``[e]xceptions to the rights
established by this article may be created only when necessary
to achieve a compelling interest.'' This compelling interest
standard presumably was intended to be analogous to Supreme
Court jurisprudence in strict scrutiny cases.
By contrast, the current version of S.J. Res. 1 includes a
more flexible and workable standard for restricting victims'
rights while still providing strong protection for those
rights. It states that ``[t]hese rights shall not be restricted
except when and to the degree dictated by a substantial
interest in public safety or the administration of criminal
justice, or by compelling necessity.'' While I still believe
that it may be more prudent to remain silent on the appropriate
standard of review, my reservations are significantly
diminished by the new flexible standard.
In prior years, I also expressed concern with the use of
the term ``immunities'' in the final section of the amendment.
All of the earlier provisions of the amendment referred to
victims' ``rights,'' and the rationale for introducing the term
``immunities'' in the final section was unclear. Considering
the problems that courts have had in defining and applying this
term elsewhere in the Constitution, I thought it most prudent
to delete the term here. I am pleased that my colleagues now
agree with my assessment.
Although I find that the revised language of S.J. Res. 1
cured many of my earlier criticisms, it also created some new
concerns. For example, I had concerns with respect to the new
provision which states that ``[n]othing in this article shall
affect the President's authority to grant reprieves or
pardons.'' Specifically, I feared that application of the
principles inclusius unius exclusio alterius might result in an
inappropriate interpretation of the amendment as restricting a
Governor's ability to grant reprieves or pardons. However, as
Senator Kyl explained during the Executive Committee meetings,
the provision regarding Presidential pardons was added because
the President's pardon authority is explicitly mentioned in the
U.S. Constitution. In contrast, a Governor's pardon authority
is never mentioned in the federal Constitution, so the victims'
rights amendment could not be construed as infringing upon a
Governor's authority to grant reprieves and pardons. I want to
make clear that it is the intent of the framers of this
constitutional amendment to preserve a Governor's authority to
grant reprieves and pardons to the same extent as the
President.
In addition, I continue to have reservations about the
appropriateness of limiting a constitutional amendment to
victims of ``violent'' crimes. According to advocacy groups,
this might remove as many as 30 million victims of non-violent
crimes from the amendment's safeguards. I believe that we must
tread carefully when assigning constitutional rights on the
arbitrary basis of whether the legislature has classified a
particular crime as ``violent'' or ``non-violent.'' It is
unclear to me that a person who suffers a minor assault is more
deserving of constitutional rights than an elderly widow who
lost her life savings in a fraudulent investment scheme. While
I appreciate the need to preserve governmental resources for
those cases that are most likely to need victim protections, I
continue to question whether the violent/non-violent
distinction is the best way to do so. Another alternative might
be to vest rights for certain classes of felonies, which would
ensure that the victims of the most serious crimes--no matter
whether violent or non-violent--have the protections they need
when a criminal case is brought. This would not be the first
time that a constitutional right turned on the classification
of an offense. For example, it is well-established that a
defendant's right to counsel does not attach if the offender is
convicted of a misdemeanor and is not sentenced to jail. Scott
v. Illinois, 440 U.S. 367 (1979). Similarly, a defendant only
has a right to a jury trial when he is charged with a Class A
misdemeanor or a felony. Baldwin v. New York, 399 U.S. 66
(1970). Notwithstanding these concerns, I agree with my friends
from Arizona and California that we must avoid the temptation
to let the ``perfect'' become the enemy of the ``good.'' I find
the revised victims' rights amendment to be significantly
improved and believe that victims right need protection.
Accordingly, I support S.J. Res. 1.
Orrin Hatch.
X. ADDITIONAL VIEWS OF SENATORS LEAHY AND KENNEDY
All of us agree that victims of crime deserve our support
and deserve to have strong and enforceable rights. The question
is whether these rights should be added as an amendment to the
Constitution.
The framers made the Constitution difficult to amend
because it was never intended to be used for general
legislative purposes. If it is not necessary to amend the
Constitution to achieve a particular goal, it is necessary not
to amend it. The proponents of S.J. Res. 1 would amend the
Constitution--over the vigorous objections of constitutional
scholars, victims' rights groups, judges, prosecutors, and even
the Chief Justice of the United States Supreme Court--even
though their goal can be achieved through legislation. We
strongly support victims' rights. We are confident that we can
achieve this goal by the enactment of legislation, and we have
introduced S.805 to do so.
THE CRIME VICTIMS ASSISTANCE ACT, S.805
To establish effective and enforceable rights for victims
of crime, we introduced S.805, the Crime Victims Assistance
Act, on April 7, 2003. In fact, our proposed statute will do
more to protect crime victims than S.J. Res. 1--without taking
the unnecessary and time-consuming step of amending the
Constitution, and without opening a Pandora's box of serious,
long-term consequences.
Unlike S.J. Res. 1, which leaves important terms and
concepts undefined, our statute clearly defines the rights of
victims and the mechanisms for their implementation and
enforcement. Unlike S.J. Res. 1, which is limited to victims of
violent crime, our statute provides protection for all victims
of crime. It creates specific rights and specific support
services for victims, and it authorizes the funds needed to
guarantee those rights and services. It achieves the goals of
S.J. Res. 1, without burdening state and local governments with
unfunded mandates or requiring the diversion of scarce
resources from criminal prosecutions. Instead of replacing
programs that have already been implemented by a majority of
states, it enables states to retain their full power to protect
victims in the ways most appropriate to local concerns and
local needs.
In sum, the Crime Victims Assistance Act accomplishes three
major goals. It provides enhanced rights and protections for
victims of federal crimes. It assists victims of state crimes
through grants to promote compliance with state laws on
victims' rights. And it improves the manner in which the Crime
Victims Fund is managed and preserved.
Title I
Title I of our bill modifies federal law and the Federal
Rules of Criminal Procedure to enhance protections for victims
of federal crimes, and to give victims a greater voice in the
prosecution of the criminals who commit such crimes.
Section 101 requires the government to consult with the
victim prior to a detention hearing to obtain information on
any threat the suspected offender may pose. During the
detention hearing, the court must make an inquiry about the
views of the victim and consider these views in determining
whether the suspect should be detained.
Section 102 requires the court to consider the interests of
the victim in the prompt and appropriate disposition of the
case, free from unreasonable delay.
Section 103 requires the government to make reasonable
efforts to notify the victim of any proposed or contemplated
plea agreement, and to consider the victim's views about it.
Section 104 extends the Victim Rights Clarification Act to
apply to televised proceedings, and it amends the Victims'
Rights and Restitution Act to strengthen the right of crime
victims to be present at trials and other court proceedings.
Section 105 requires probation officers to include as part
of the presentence report any victim impact statements
submitted by victims. It extends to all victims the right to
make statements or present information at sentencing, and it
requires courts to consider victims' views before imposing
sentence.
Section 106 requires the government to give victims the
earliest possible notice of hearings on modification of
probation or supervised release, discharges from psychiatric
facilities, and grants of executive clemency.
Section 107 establishes specific steps to enforce the
rights of federal crime victims, including the rights
established by our proposed statute. An office within the
Department of Justice will be established to receive and
investigate complaints relating to the violation of the rights
of crime victims. Employees who fail to protect these rights
will be disciplined. In addition, Section 104 gives standing to
prosecutors and victims to assert the rights of victims to
attend and observe trials.
The rights established by Title I fill existing gaps in
federal criminal law and represent a major step toward ensuring
that the rights of victims of federal crimes receive full,
appropriate, and sensitive treatment. Unlike S.J. Res. 1, these
rights work together with existing state laws. They protect
victims without overriding the efforts of states to protect
victims in ways appropriate to each state's unique needs.
Title II
Title II of the Crime Victims Assistance Act will assist
victims of crime at the state and local level, to ensure that
they receive the counseling, information, and assistance they
need toparticipate in the criminal justice system to the
fullest extent possible.
Section 201 authorizes pilot programs in five states to
establish and operate compliance authorities to promote the
effective enforcement of state laws on the rights of victims of
crime. These compliance authorities will receive and
investigate complaints relating to the provision or violation
of victims' rights and issue findings.
Section 202 provides resources to develop state-of-the-art
procedures for notifying victims of important dates and
developments.
Section 203 authorizes grants to establish juvenile justice
programs to promote victim participation in the criminal
justice system.
Section 204 supports the development of case management
programs to coordinate the various programs that affect or
assist victims, in order to streamline access to services and
reduce ``revictimization'' by the criminal justice system.
Section 205 expands the capacity of providers of victim
services to serve victims with special communication needs,
such as limited English proficiency, hearing disabilities, and
developmental disabilities.
Instead of compelling states to modify their criminal
justice procedures in particular ways, these initiatives
provide federal resources to establish effective victims'
rights compliance and assistance programs at the state level.
Title III
To make additional improvements possible, the Crime Victims
Assistance Act provides increased federal financial support for
victim assistance and compensation programs. It replaces the
cap on spending from the Crime Victims Fund, which has
prevented millions of dollars in fund deposits from reaching
victims and supporting essential services. It adopts an
approach supported by victim groups to strengthen the stability
of the fund and protect its assets, while enabling more funds
to be distributed for victim programs. It also ensures that the
amounts deposited in the Crime Victims Fund will be distributed
in a timely manner to assist victims of crime, as intended by
current law--and will not be diverted to offset increased
spending.
CONCLUSION
Our statutory proposal is clear and comprehensive. It
protects the core rights contained in S.J. Res. 1, provides
essential victims' services, and authorizes funding to
implement these rights and services. There is no need to amend
the Constitution. S.J. Res. 1 is both unnecessary and unwise.
The proposed constitutional amendment would make the same
promises on victims' rights, but it provides no meaningful
remedy for violations of these rights. It imposes mandates on
state and local prosecutors, but it fails to provide funding.
As a result, it will overburden already tight federal, state,
and local budgets, and compromise diligent and effective
prosecutions.
With a simple majority of both Houses of Congress, S.805,
the Crime Victims Assistance Act, can be sent to the President
immediately. Its provisions will make an immediate and large
difference in the lives of crime victims throughout the
country. There is no need to go through the elaborate and time-
consuming procedures of amending the Constitution. It would be
foolish to do so, when all it means is that once the
constitutional amendment is approved by Congress and ratified
by the states, Congress will then have to enact a statute like
S.805 to implement the amendment. Why not pass the statute now,
and protect victims' rights as soon as possible?
Patrick J. Leahy.
Edward M. Kennedy.
XI. MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, KOHL, FEINGOLD, SCHUMER,
AND DURBIN
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 wide 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' rights throughout the federal system and,
at the same time, either require the States to follow suit as a
condition of federal funding, or assist the States in giving
force to their own, locally-tailored statutes and
constitutional provisions. Instead, the proponents of S.J. Res.
1 invite Congress to delay relief for victims with a complex
and convoluted amendment to our fundamental law--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.
Any interpretative value of the majority report is further
undermined by the inconsistency of the document, which in some
situations narrows the impact of the amendment (e.g., by
construing away the unpopular consequences for battered women
and incarcerated victims) and in other circumstances expands
the impact of the amendment (e.g., by devising a role for
States in implementing the amendment). 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.
No victims' rights amendment was necessary, for example, to
secure a role for victims at pretrial detention and capital
sentencing hearings.\1\ Nor do we need a constitutional
amendment to provide victims with notice of hearing dates or to
require just and timely consideration of restitution.
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\1\ See United States v. Salerno, 481 U.S. 739 (1987) (Constitution
does not prohibit courts from considering safety of victims in making
pretrial detention decision); Payne v. Tennessee, 501 U.S. 808 (1991)
(Constitution does not prohibit jury from considering victim impact
statement at sentencing phase of capital trial).
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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.
A letter sent to the Committee by 450 professors of
constitutional and criminal law concludes, ``There is no
pressing need for a victim's rights amendment, as virtually
every right provided victims by the amendment can be or is
already protected by state and federal law.'' \2\ Even
Professor Laurence Tribe, an outspoken supporter of a victims'
rights amendment, has acknowledged that ``the States and
Congress, within their respective jurisdictions, already have
ample affirmative authority to enact rules protecting these
rights.'' \3\
---------------------------------------------------------------------------
\2\ Letter from Law Professors Regarding the Proposed
Constitutional Amendment, Nov. 3, 2003.
\3\ 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. 216, 218 (Mar. 24, 1999) [hereinafter ``Hearing of
Mar. 24, 1999''].
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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.''
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. 1, which creates rights
riddled with qualifications 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.\4\
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\4\ Bruce Fein, Deforming the Constitution, Wash. Times, July 6,
1998, at A14.
John Perry was a New York City police officer who lost his
life attempting to rescue individuals from the attack on the
World Trade Center on September 11, 2001. A lawyer, he had
served with the NYPD for 8 years when he decided to return to
the practice of law. He submitted his retirement papers and
surrendered his badge early on the morning of September 11,
2001. Immediately thereafter, he learned of the attack on the
World Trade Center. He retrieved his badge, bought an NYPD
shirt and ran to the World Trade Center, located just blocks
away. Officer Perry saved the lives of workers in the
underground plaza but lost his own life that day. His mother,
Patricia Perry, testified that her son ``would appreciate the
concern for victims, but would oppose the Victims' Rights
Amendment.'' She continued, ``instead of focusing on this
Amendment, Congressshould ensure that resources are offered as
needed to help heal the pain and loss of victims and victims'
families.'' \5\
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\5\ A Proposed Constitutional Amendment to Protect Crime Victims,
Hearing on S.J. Res. 1 before the Senate Comm. on the Judiciary, 108th
Cong., 1st Sess. (Apr. 8, 2003) [hereinafter ``Hearing of Apr. 8,
2003''] (statement of Patricia Perry). At the time of this writing, the
printed record of this hearing was not yet available.
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Two supporters of S.J. Res. 1--John Gillis, the current
Director of the Justice Department's Office for Victims of
Crime (``OVC'') and Professor Douglas Beloof--point to the
failure to educate lawyers in crime victim law as one of the
most substantial barriers to enforcement to victims' rights.
While they think a federal constitutional amendment would
achieve such education, they acknowledge a simpler solution:
Require State bar examiner to include these rights on State bar
exams.\6\
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\6\ John Gillis & Douglas Beloof, ``The Next Step For a Maturing
Victim Rights Movement: Enforcing Crime Victim Rights In the Courts,''
33 McGeorge L. Rev. 689, 697-698 (Summer 2002).
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We believe 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?
2. Statutes Are Preferable To Amending the Federal Constitution
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 ``strongly prefers a
statutory approach as opposed to a constitutional amendment''
because it ``would allow all participants in the federal
criminal justice system to gain experience with the principles
involved without taking the unusual step of amending our
nation's fundamental legal charter.'' \7\
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\7\ Letter from Leonidas Ralph Mecham, Secretary, Judicial
Conference of the United States, to Sen. Hatch, Chairman, and Sen.
Leahy, Ranking Member, Senate Comm. on the Judiciary, Apr. 30, 2003.
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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 ``is more
certain and immediate, an advantage to victims who under the
proposed amendment approach, may wait years for relief during
the lengthy and uncertain ratification process.'' \8\
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\8\ 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 Letter from E. Norman Veasey, Chief Justice,
Supreme Court of Delaware, to Sen. Biden, June 26, 2003 (``The
Conference of Chief Justices has long opposed [the proposed
constitutional amendment''); Letter from Joseph Weisberger, Chief
Justice, Supreme Court of Rhode Island, to Rep. Charles Canady,
Chairman, and Rep. Melvin Watt, Ranking Member, House Subcomm. on the
Constitution, Feb. 8, 2000 (``CCJ concurs with the recommendations of
the U.S. Judicial Conference regarding a statutory alternative to this
issue''); Hearing of Mar. 24, 1999, at 251 (same).
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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 U.S. 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 crime victims.\9\
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\9\ Position paper by the National Clearinghouse for the Defense of
Battered Women, prepared for the Senate Comm. on the Judiciary, Hearing
of Apr. 8, 2003.
Safe Horizon is the nation's leading victims'
assistance organizations, serving over 350,000 victims per
year. In the aftermath of the September 11 attacks, Safe
Horizon distributed over $90 million in financial assistance to
40,000 victims and survivors. This victim assistance agency
also opposes S.J. Res. 1. It wrote to the Committee that the
proposed amendment ``may be well intentioned, but good
---------------------------------------------------------------------------
intentions do not guarantee just results'':
We believe considerable progress with respect to
victims' rights has been made in New York and elsewhere
in recent years, although we recognize that still more
needs to be done. Almost everywhere, statutory
frameworks provide victim protections and a majority of
states have also passed constitutional amendments.
However, these statutory reforms, such as requiring
officials to take steps to notify victims about court
proceedings, must be enforced to be meaningful.
Additionally, services for victims desperately need
more financial support. When so much remains to be done
to enforce existing victims' rights provisions and to
expand the support services so vital to victims, we
find it difficult to justify the extensive resources
needed to pass a Constitutional amendment.\10\
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\10\ Letter from Gordon J. Campbell, Chief Executive Officer, Safe
Horizon, to Sen. Hatch, Chairman, and Sen. Leahy, Ranking Member,
Senate Comm. on the Judiciary, Apr. 7, 2003.
The National Network to End Domestic Violence
cautions that S.J. Res. 1 would ``drain valuable resources from
the system,'' ``prevent innovative solutions,'' ``provide[s]
inadequate protections for victims of domestic violence,'' and
generally constitute ``an empty promise to victims''; it
concludes, ``[T]he objectives of the victims'' rights amendment
can be met more effectively through far less drastic means and
means that can be more easily altered if circumstances change
or experience yields unanticipated consequences.'' \11\
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\11\ Statement of Lynn Rosenthal, Executive Director, National
Network to End Domestic Violence, prepared for the Senate Comm. on the
Judiciary, Hearing of Apr. 8, 2003.
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The Pennsylvania Coalition Against Domestic
Violence states that ``S.J. Res. 1 would fundamentally alter
the nation's founding charter with negligible benefits for
victims and enormous consequences for states.'' In the
experience of this organization, ``victim's rights can be
sufficiently established through the development of state
codes.'' \12\
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\12\ Letter from Susan Kelly-Dreiss, Executive Director,
Pennsylvania Coalition against Domestic Violence, to Sen. Specter, Apr.
7, 2003.
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The NOW Legal Defense and Education Fund writes
that the proposed constitutional amendment ``raises concerns
that outweigh its benefits,'' but ``fully endorse[s] ?
initiatives to ensure consistent enforcement of existing
federal and state laws, and enactment and enforcement of
additional statutory reform that provide important protections
for [victims].'' \13\
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\13\ Position paper by the NOW Legal Defense and Education Fund,
prepared for the Senate Comm. on the Judiciary, July 2003.
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The National Sheriffs' Association, the Leadership
Conference on Civil Rights, the Independence Institute, 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
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
resort, not undertaken as a first option.
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,\14\ 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,\15\ which encouraged the States to maintain
programs that serve victims of crime. The Victims of Crime Act
also established a Crime Victims' Fund, which now matches up to
60 percent of the money paid by States for victim compensation
awards.
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\14\ P.L. 97-291, Oct. 12, 1982, 96 Stat. 1248.
\15\ 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.\16\ 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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\16\ P.L. 101-647, title V, Nov. 29, 1990, 104 Stat. 4789.
---------------------------------------------------------------------------
The Violence Against Women Act of 1994 (VAWA) \17\
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.\18\
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\17\ P.L. 103-322, title IV, Sept. 13, 1994, 108 Stat. 1796.
\18\ VAWA was reauthorized in 2000 and extended in 2003. See P.L.
106-386, Oct. 28, 2000, 114 Stat. 1464; P.L. 108-21, Sec. 612, Apr. 30,
2003, 117 Stat. 650 (authorizing new transitional housing program).
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The Mandatory Victims Restitution Act of 1996 \19\ 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 \20\ 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.
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\19\ P.L. 104-132, title IIA, Apr. 24, 1996, 110 Stat. 1214.
\20\Id., title IIC.
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The Victim Rights Clarification Act of 1997 \21\ 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 (1) excluding a victim from the trial on the ground
that he or she might be called to provide a victim impact
statement at sentencing, and (2) 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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\21\ 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 \22\ 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.
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\22\ P.L. 105-301, Oct. 17, 1998, 112 Stat. 2838.
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The same month, Congress passed the Identity Theft and
Assumption Deterrence Act,\23\ 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.
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\23\ P.L. 105-318, Sec. 5, Oct. 30, 1998, 112 Stat. 3007.
---------------------------------------------------------------------------
Also in October 1998, the Torture Victims Relief Act \24\
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.
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\24\ P.L. 105-320, Oct. 30, 1998, 112 Stat. 3016.
---------------------------------------------------------------------------
The Victims of Trafficking and Violence Protection Act \25\
was signed into law in October 2000. This law requires the
State Department to establish an office to monitor and combat
trafficking in persons and provide assistance to trafficking
victims. It also provides support for victims of international
terrorism, by facilitating the enforcement of court-ordered
judgments against state sponsors of terrorism, and by enabling
the OVC to provide more immediate and effective assistance to
victims of terrorism abroad.
---------------------------------------------------------------------------
\25\ P.L. 106-386, Oct. 28, 2000, 114 Stat. 1464.
---------------------------------------------------------------------------
Congress acted swiftly to help the victims of the September
11, 2001, terrorist attacks. Within 10 days, we passed the
September 11th Victim Compensation Fund of 2001,\26\ to provide
fair compensation to those most affected by this national
tragedy. A few months later, we passed the Victims of Terrorism
Tax Relief Act,\27\ which exempted from income taxes any
individual who died as a result of wounds or injury incurred in
the September 11 attacks, the anthrax attacks in the fall of
2001, or the Oklahoma City bombing in April 1995. In addition,
as part of the USA PATRIOT Act of 2001,\28\ we made several
significant changes to the Victims of Crime Act, aimed at
improving the manner in which the Crime Victims Fund is managed
and preserved.
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\26\ P.L. 107-042, Sept. 22, 2001, 115 Stat. 230.
\27\ P.L. 107-134, Jan. 23, 2002, 115 Stat. 2427.
\28\ P.L. 107-056, title VI, subtitle B, Oct. 26, 2001, 115 Stat.
272.
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All these federal statutes have made an immediate
difference in the lives of victims, including victims of
terrorism. But despite these gains, some constitutional
amendment proponents continue to assert that statutes do not
work to provide victims with participatory rights. In
particular, they cite the Victim Rights Clarification Act of
1997 as evidence that statutes cannot adequately protect
avictim's rights.\29\ Given these assertions, we believe it important
to revisit the history of the Victim Rights Clarification Act.
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\29\ For example, the two lead sponsors of S.J. Res. 1 have
repeatedly stated that the trial judge in the Oklahoma City bombing
case either ignored the Act or willfully refused to enforce it. See,
e.g., Transcript of Markup, Senate Comm. on the Judiciary, July 24,
2003, at 40-44 (Sen. Feinstein); Transcript of Markup, Senate Comm. on
the Judiciary, June 25, 1998, at 16 (Sen. Feinstein); id. at 25 (Sen.
Kyl). The majority report echoes this view, stating (in part IV(3))
that the Act ``did not fully vindicate the victims' right to attend the
trial.''
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On June 26, 1996, during proceedings in the first Oklahoma
City bombing case against defendant Timothy McVeigh, Chief
Judge Richard Matsch issued what many of us thought was a
bizarre pretrial order. He held that any victim who wanted to
testify at the penalty hearing, assuming McVeigh was convicted,
would be excluded from all pretrial proceedings and from the
trial, to avoid any influence from that experience on their
testimony. The prosecution team moved for reconsideration, but
the judge denied the motion and reaffirmed his ruling on
October 4, 1996.
Congress proceeded to pass the Victim Rights Clarification
Act, which President Clinton signed into law on March 19, 1997.
One week later, Judge Matsch reversed his pretrial order and
permitted observation of the trial proceedings by potential
penalty phase victim impact witnesses.\30\ 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.
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\30\ United States v. McVeigh, 958 F. Supp. 512, 515 (1997).
---------------------------------------------------------------------------
Two members of the government team that prosecuted the
Oklahoma City bombing case--Beth Wilkinson and James
Orenstein--attested to the efficacy of the Victim Rights
Clarification Act in their appearances before the Committee.
According to Ms. Wilkinson:
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 * * * whether their testimony
would have been impacted. * * * I am proud to report to
you that every single one of 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 * * * without
even undergoing a voir dire process.\31\
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\31\ Hearing of Mar. 24, 1999, at 65.
Similarly, Mr. Orenstein testified, ``As a result of the
[Victim Rights Clarification Act], no victim was excluded from
testifying at the defendants' penalty hearing on the basis of
having attended earlier proceedings.'' \32\
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\32\ Hearing of Apr. 8, 2003 (statement of James Orenstein).
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The testimony of Ms. Wilkinson and Mr. Orenstein on this
point has never been contested. In addition, we are unaware of
any case after the Oklahoma City bombing trials in which the
Victim Rights Clarification Act has been less than fully
effective.
To summarize, in the Timothy McVeigh case, the trial judge
got the law of victims' rights wrong in an initial pretrial
ruling. That ruling was promptly opposed by prosecutors,
swiftly corrected by Congress, and duly reversed by the trial
judge himself before the trial began. By the time McVeigh's
codefendant went to trial, any uncertainty about the new
legislation had been resolved. What that history shows is not
that statutes don't work; it shows precisely why they do. If we
got the law of victims' rights wrong in a constitutional
amendment, or the Supreme Court interpreted a constitutional
victims' rights amendment wrongly, a solution would not come so
swiftly. That is why Congress has been slow to
constitutionalize new procedural rights that can be provided by
statute, and that is why it should remain so.
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. 1, as well as
others. In addition, some 33 States have amended their State
constitutions to provide a variety of protections and rights
for crime victims. As the majority report notes (in footnote
1), ``These amendments passed with overwhelming popular
support.''
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. 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 asatisfactory job
of keeping them informed, providing them an opportunity to have a say
in certain decisions and notifying them about case outcomes.'' \33\
---------------------------------------------------------------------------
\33\ Susan W. Hillenbrand & Barbara E. Smith, Victims Rights
Legislation: An Assessment of its Impact on Criminal Justice
Practitioners and Victims 26 (May 1989).
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Since 1989, States have continued to strengthen their
victims' rights provisions and services. Indeed, the majority
acknowledges (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,'' and many of the anecdotes sprinkled throughout the
majority report demonstrate that change toward better
implementation of victims' rights is occurring in the States.
Several studies support this assessment. 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.'' \34\ A
1997 report by the National Criminal Justice Association
concluded: ``It appears evident that the trend to expand the
statutory rights of victims on the state level is continuing.''
\35\
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\34\ 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).
\35\ Victims Rights Compliance Efforts: Experiences in Three States
(1997). This publication is available on the Internet at .
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More recently, the Vera Institute of Justice completed a
56-page report on the Effects of State Victims Rights
Legislation on Local Criminal Justice Systems. The Vera
Institute surveyed 396 prosecutors' offices across the country,
in large and small jurisdictions, and found that by and large,
victims' rights were being honored. It states: ``During the
last decade, researchers who studied victim rights tended to be
pessimistic about the extent to which statutes were followed in
practice by local criminal justice officials. In the sites we
visited, however, we are confident that, overall, people are
making a serious effort to implement the state statutes.'' \36\
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\36\ Criminal Justice Newsletter, Vol. 32, No. 10 (June 2002)
(quoting Vera Institute study; emphasis added). The Vera Institute
report has not been released, apparently because the Justice
Department, which funded the research, is unhappy with some of the
findings.
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The majority relies (in part III) on two reports that found
past protections for victims to be inadequate. The first is a
1997 report by the National Victim Center, now known as the
National Center for Victims of Crime (``NCVC'')--a member of
the National Victims Constitutional Amendment Network and a
leading advocate for a victims' rights amendment.\37\ 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.
---------------------------------------------------------------------------
\37\ See Statutory and Constitutional Protection of Victims'
Rights: Implementation and Impact on Crime Victims--Subreport: Crime
Victim Responses Regarding Victims' Rights (Apr. 15, 1997).
---------------------------------------------------------------------------
Another unsurprising conclusion of the NCVC 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
NCVC researchers themselves acknowledged, ``it is reasonable to
assume that States with stronger legal mandates for the
provision of victims' rights tend to provide more funds for
implementation than States with weaker mandates.'' \38\ Before
we conclude that State laws are inadequate to protect victims,
there should at least be such laws, as well as sustained
efforts to fund, implement and enforce such laws. The NCVC
report suggests that we should do more to encourage States to
adopt and enforce victims' rights, not that we should amend the
Constitution.
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\38\ Hearing of Mar. 24, 1999, at 160 (Dec. 1998 summary of NCVC
report).
---------------------------------------------------------------------------
The NCVC 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 NCVC's methodology led the OVC to conclude that ``more
research would be needed before any policy recommendations
could be made based on the data.'' \39\
---------------------------------------------------------------------------
\39\ Letter from Kathryn M. Turman, Acting Director, OVC, to Robert
P. Mosteller, Professor, Duke University School of Law, Sept. 18, 1998.
An earlier intra-office memorandum memorializes the Justice
Department's wish that the complete report not be published at all.
Memorandum from Sam McQuade, Program Manager, National Institute of
Justice, to Jeremy Travis, Director, National Institute of Justice, May
16, 1997 (``OVC has requested that the complete report NOT be published
because, in its view, the report contains contradictory information * *
*.''; emphasis in original). For a detailed critique of the NCVC report
and its flawed methodology, see Robert P. Mosteller, The Unnecessary
Victims' Rights Amendment, 1999 Utah L. Rev. 443, 447-449 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.'' \40\ 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.
---------------------------------------------------------------------------
\40\ New Directions from the Field: Victims' Rights and Services
for the 21st Century vii (May 1998).
---------------------------------------------------------------------------
There has been no impartial, comprehensive analysis done to
indicate that victims' rights cannot adequately be protected by
State and federal laws. Certainly, there is no body of case law
supporting 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 cannot 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. Victims' Rights Do Not Need To Be ``Restored''
The case for a victims' rights constitutional amendment is
based in large part on a faulty premise. Without citing a
single historical source, the majority report asserts (in part
I):
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
reduced from that of the moving party in most criminal
prosecutions, to that of a party of interest in the
proceedings, to that of mere witness.
Based upon this premise, we are told that S.J. Res. 1 would
simply ``restore'' the various notice and participation rights
that victims in the late 18th century inherently enjoyed by
virtue of being parties to the litigation.
History tells us otherwise. There was a place that had a
system of private prosecutions in the late 18th century, and
even well into the 19th century. But that place was England,
not New England. Most American colonies followed the English
model of private prosecutions in the 17th century but, as one
distinguished scholar has written, that system ``proved even
more poorly suited to the needs of the new society than to the
older one.'' For one thing, victims abused the system by
initiating prosecutions to exert pressure for financial
reparation. These colonies shifted to a system of public
prosecutions because they viewed the system of private
prosecutions as ``inefficient, elitist, and sometimes
vindictive.'' \41\ While private prosecutions turn justice into
a variable proposition based on the wealth and power of the
victim, public prosecutions give the chance for equal
justice.\42\
---------------------------------------------------------------------------
\41\ Abraham S. Goldstein, Prosecution: History of the Public
Prosecutor, in 3 Encyclopedia of Crime and Justice 1286, 1286-1287 (S.
Kadish ed. 1983).
\42\ 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. 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 clear trend during the colonial period and immediately
after the Revolution was for the expansion of public
prosecutions and, with it, the decline of private
prosecutions.\43\ These developments, as well as the social,
economic, and intellectual factors that led to these
developments, were clear at the time of the framing and would
have been appreciated by the Framers of the Constitution and
Bill of Rights. In Virginia--home of some of the foremost
architects of these documents--a deputy attorney general was
appointed to each county in the early 1700s and ``had complete
control over all prosecutions within his county'' by 1789.\44\
North Carolina established prosecuting attorneys for each
county in 1738, ``to carry on all Proceedings in the [County]
Courts for the Punishing of crimes.'' \45\ Connecticut adopted
a system of county prosecutors in 1704--over 80 years before
the Constitution was written.\46\ In other colonies,
particularly in areas settled by the Dutch in the 17th century,
public prosecution emerged earlier and more directly.\47\
---------------------------------------------------------------------------
\43\ See, e.g., Goldstein, supra, at 1287 (``[B]y the time of the
American Revolution, each colony had established some form of public
prosecution and had organized it on a local basis. In many instances, a
dual pattern was established within the same geographical area, by
county attorneys for violations of state law and by town prosecutors
for ordinance violations. This pattern was carried over into the states
as they became part of the new nation.''); Juan Cardenas, The Crime
Victim in the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol'y 357, 371
(1986) (``[B]y the time of the American Revolution * * * local district
attorneys were given a virtual monopoly over the power to prosecute.
Crime victims were no longer allowed to manage and control the
prosecution of their crimes.''); Joan E. Jacoby, The American
Prosecutor: A Search for Identity 19 (1980) (``By the advent of the
American Revolution, private prosecution had been virtually eliminated
in the American colonies and had been replaced by [a] series of public
officers who were charged with handling criminal matters.''); Randolph
N. Jonakait, The Origins of the Confrontation Clause: An Alternative
History, 27 Rutgers L.J. 77, 99 (1995) (``By the time of the
Revolution, public prosecution in America was standard, and private
prosecution, in effect, was gone.''); Jack M. Kress, ``Progress and
Prosecution,'' in 423 The Annals of the American Academy of Political
and Social Science 99, 103 (1976) (``[P]ublic prosecution was firmly
established as the American system by the time the Judiciary Act of
1789 created United States district attorneys to prosecute federal
crimes.''); Robert L. Misner, ``Recasting Prosecutorial Discretion,''
86 J. Crim. L. & Criminology 717, 729 (1996) (``By the outbreak of the
Revolution, private prosecution was replaced by public prosecution
through county officials.* * *'').
\44\ Cardenas, supra, at 370.
\45\ Paul M. McCain, The County Court in North Carolina before
1750, at 18-19, 33 (1954).
\46\ Goldstein, supra, at 1287.
\47\ Id.
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Indeed, so established were public prosecutors at the
inception of the new Federal Republic that they were, without
debate, granted exclusive control over prosecutions in federal
courts. In the Judiciary Act of 1789--enacted the same year the
Constitution was ratified--the First Congress created local
U.S. district attorneys offices, appointed by the President,
and granted them plenary power over all federal crimes
occurring in their jurisdictions.\48\ And when, also in 1789,
the First Congress approved the Bill of Rights and transmitted
it to the State legislatures for ratification, it did so
without establishing special rights for victims of crimes
prosecuted in the federal system--then the only criminal
justice system to which the Bill of Rights was directed.\49\
---------------------------------------------------------------------------
\48\ Jonakait, supra, at 99 & n.107; Goldstein, supra, at 1287.
\49\ The Framers never intended the Bill of Rights to be concerned
with the State criminal justice systems; rather, they conceived the
Bill of Rights as a means of protecting Americans against the new
federal government. The Bill of Rights did not apply as against State
action until after ratification of the 14th amendment in 1868, and the
subsequent incorporation of many of the protections afforded by the
Bill of Rights into the 14th amendment's due process clause.
---------------------------------------------------------------------------
In sum, the proposed constitutional amendment cannot be
justified as ``restoring'' victims rights enjoyed in the late
18th century. Public prosecution was the rule, not the
exception, by the time that Mr. Madison and Mr. Hamilton and
all the other Framers of our Constitution got together in
Philadelphia in 1787 to draft our nation's founding charter. If
the Bill of Rights, which was written a few years later,
provides no special rights for crime victims, it is not because
the Framers thought they were protected by a system of private
prosecutions. Rather, if we are to draw any lesson from
history, it is that the Framers believed victims and defendants
alike were best protected by the system of public prosecutions
that was then, and remains, the American standard for achieving
justice.
5. 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, for 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.
First, the paramount purpose of a criminal trial is to
determine the guilt or innocence of the accused, not to make
victims whole. As discussed above (in section (B)(4)), we have
historically and proudly eschewed private criminal prosecutions
based on our common sense of democracy. 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.
Second, 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.
Third, 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.\50\ 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.
---------------------------------------------------------------------------
\50\ 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.\51\
---------------------------------------------------------------------------
\51\ 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)
[hereinafter ``Hearing of 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 in
1999, ``Victims of crime are hardly an insular minority, nor
are they the victims of prejudice and hostility. * * * Special
treatment of victims under the constitution is not necessary to
insure that their interests be preserved or recognized.\52\ She
recently updated her statement, adding, ``No new reason exists
to believe that victims of crime cannot adequately protect
their interests through the democratic political process such
that a constitutional amendment is necessary to protect them.''
\53\
---------------------------------------------------------------------------
\52\ Hearing of Mar. 24, 1999, at 248.
\53\ Letter from Lynne Henderson, Professor, Boyd School of Law, to
Sen. Hatch, Chairman, and Sen. Leahy, Ranking Member, Senate Comm. on
the Judiciary, Apr. 7, 2003.
A recent story out of Lake County, Michigan, illustrates the
political power of crime victims today. In September 2003, Lake County
voters recalled a county prosecutor after a murder victim's family
launched a campaign against him for orchestrating a plea bargain with
the killer. The plea deal had resulted in a 23 to 50-year sentence for
second-degree murder. The prosecutor, who had negotiated 105 guilty
pleas from January 2001 through October 2002, said he was trying to
avoid costly trials on a shoestring $200,000 annual budget. ``Michigan
county votes to recall prosecutor; was criticized by victim's family
for plea deal,'' Associated Press, Sept. 18, 2003.
---------------------------------------------------------------------------
The Bill of Rights is not askew. We do not need to create a
panoply of special rights for victims in order to set it
straight.
6. There Is No Need for a ``One-Size-Fits-All'' Set of Victims' Rights
Another common argument for the proposed constitutional
amendment is that it offers the only way to fix the
``patchwork'' of State victims' rights laws. It is not enough
that every State already protects the rights of crime victims,
whether by statute or by constitutional amendment, or both--
those protections should be made uniform nationwide.
As a preliminary matter, there is some question whether
S.J. Res. 1 would have the desired effect of promoting
uniformity in the protection of victims' rights, given the
majority's insistence that States would retain substantial
authority to implement the amendment and define its key terms.
Rather, as we discuss in section (D), infra, if the rights
established by the amendment carry a different meaning in every
State, the amendment could simply replace one ``patchwork'' of
victim's rights with another.
More fundamentally, the argument that we need to achieve
uniformity in this area is unconvincing. 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. We cannot accept this
assumption; to the contrary, we believe that the States'
continued experimentation in this area is constructive and
valuable.\54\
---------------------------------------------------------------------------
\54\ See section (D)(1), infra.
---------------------------------------------------------------------------
We would agree that there are times when Congress must step
in and ensure a uniform national floor with respect to a
particular policy issue--the Civil War Amendments are good
examples. If States in the 21st century were as unwilling to
protect victims as some States were, in the 19th century, to
end slavery and racial discrimination, we might agree on the
need to set a national floor for victims' rights. But States
are not unwilling to protect victims--far from it. To quote
five Republican law professors who oppose S.J. Res. 1:
In some rare cases, where the nation's stability
demands it, or where fundamental human rights are in
imminent jeopardy, the Constitution might need to be
amended to provide a national standard. That's why the
Civil War amendments, for instance, prohibit race
discrimination, and protect the freedom of speech and
other rights that we have found are vital for our
survival as a strong and decent nation. But though
there may be some faults in the way some states protect
certain victims' rights, there's nothing comparable to
the disaster and oppression that prompted those
Amendments. At most, there's honest and reasonable
disagreement between states on difficult questions
related to balancing the interests of victims, the
interests of criminal defendants, and the limited
resources of the state governments.\55\
---------------------------------------------------------------------------
\55\ Letter from Republican Law Professors Regarding the Proposed
Victim's Rights Constitutional Amendment, to Sen. Hatch, Chairman, and
Sen. Leahy, Ranking Member, Senate Comm. on the Judiciary, July 11,
2003.
Even assuming that a ``one-size-fits-all'' approach to
victims' rights is desirable or even necessary, that does not
mean that we need to amend the Constitution. There are other
ways to achieve uniformity. For example, Congress could simply
pass spending power-based legislation, which conditioned money
to the States on the States' implementing a uniform national
standard of victim rights.\56\ As the Justice Department has
acknowledged, ``such legislation would do away with one of the
main concerns with statutory remedies, the need for
uniformity.'' \57\
---------------------------------------------------------------------------
\56\ See, e.g., United States v. American Library Assn., 123 S. Ct.
2297, 2303 (2003) (``Congress has wide latitude to attach conditions to
the receipt of federal assistance in order to further its policy
objectives.''); South Dakota v. Dole, 483 U.S. 203, 206 (1987).
\57\ Hearing of Apr. 8, 2003 (response of Viet Dinh, Assistant
Attorney General, to follow-up question 2 by Sen. Leahy).
---------------------------------------------------------------------------
7. A Constitutional Amendment Is Unnecessary To Provide Victims With
Legal Standing
Just as a constitutional amendment is unnecessary to
provide uniformity, it is also unnecessary to provide standing.
Indeed, statutes have long been the principal way in which
legislators establish a new cause of action.
As a preliminary matter, let us define our terms. What
would it mean to provide victims with ``standing''? This is not
a question of whether victims should be entitled to attend the
trial, provide victim impact testimony, or receive
restitution--of course they should be. The ``standing''
question is a procedural one, about whether victims' rights and
the interests of an efficient and effective criminal justice
system are best protected by allowing prosecutors to run the
prosecution, or by bringing in teams of victims' lawyers to
argue over how the case should be conducted.
We are committed to giving victims real and enforceable
rights. But we are not convinced that prosecutors are so
incapable of protecting those rights, once we make them clear,
that every victim needs to retain his or her own trial lawyer
to raise claims and challenge rulings during the course of a
criminal case. To the contrary, we believe that prosecutors
have victims' interests at heart.\58\
---------------------------------------------------------------------------
\58\ The majority (in part IV(4)) provides one example. Patricia
Pollard testified in 1996 that after her assailant was released from
prison without any notice to her--in violation of her State's new
constitutional amendment--the county attorney filed an action to stop
the release. As a result, the parole board was ordered to hold a new
hearing and, after hearing from Ms. Pollard, it reversed its prior
decision. See Hearing of Apr. 23, 1996, at 31-32.
---------------------------------------------------------------------------
Assuming that we want to provide standing for victims and
their lawyers to make legal arguments as well as to testify in
criminal cases, we do not need a constitutional amendment to
achieve that. Indeed, the statutory alternative to S.J. Res. 1
that Senators Leahy and Kennedy offered at the Committee's
September 4 markup--the Crime Victims Assistance Act of 2003--
offers one model for giving victims standing. Specifically, it
would amend the Victim Rights Clarification Act of 1997 to
authorize prosecutors and victims to assert the victim's right
to attend and observe the trial.
Constitutional amendment proponents have cited a Tenth
Circuit decision in the Oklahoma City bombing case for the
proposition that ``under Article III of the Constitution of the
United States * * * victims have no standing to assert [their
rights]. Only a constitutional amendment can give themthat
right.'' \59\ In fact, the Tenth Circuit did not hold that no statute
can confer standing on victims; rather, after noting that standing may
derive from various sources, including statutes, the Court held that
the only statute cited by the victims, which explicitly denies any
private cause of action, did not confer standing on victims.\60\
Nothing in the Tenth Circuit decision--and more importantly, nothing in
the U.S. Constitution--prevents us from giving victims a statutory
cause of action to assert all sort of rights. We could do it today.
---------------------------------------------------------------------------
\59\ Transcript of Markup, Senate Comm. on the Judiciary, July 24,
2003, at 44 (Sen. Feinstein).
\60\ United States v. McVeigh, 106 F.3d 325, 334-335 (10th Cir.
1997) (discussing the Victims' Rights and Restitution Act of 1990). The
Court also rejected the victims' argument that the first amendment
right of public access to criminal proceedings provided a
constitutional basis for standing. Id. at 335-336.
---------------------------------------------------------------------------
C. THE PROPOSED AMENDMENT COULD HAVE DANGEROUS AND UNCERTAIN
CONSEQUENCES FOR THE ADMINISTRATION OF JUSTICE
While the proposed amendment is at best unnecessary, at
worst, it could help criminals more than it helps victims and
result in the conviction of some who are innocent and wrongly
accused. Patricia Perry, the mother of a police officer lost
while rescuing victims of the World Trade Center attacks on
September 11, 2001, testified:
[Our family] believes that this constitutional
amendment threatens the system of checks and balances
in the current justice system and that it could
actually compromise the ability of prosecutors to
obtain the convictions of those responsible for the
carnage on 9-11. We believe that to the extent that
this amendment is effective, it is unworkable and even
dangerous. And to the extent that it does nothing, it
is an empty promise among many for victims that need
real resources and real support.\61\
---------------------------------------------------------------------------
\61\ Hearing of Apr. 8, 2003 (statement of Patricia Perry).
We share the Perry family's concerns. Passage of S.J. Res. 1
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.
It could also have serious consequences beyond the criminal
justice system, both in civil and military proceedings.
1. The Amendment Could Impair the Ability of Prosecutors To Convict
Violent Criminals and Disrupt the War on Terror
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 (``NDAA'') cautioned in
1998, 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.\62\ 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.
---------------------------------------------------------------------------
\62\ Letter from William L. Murphy, President, NDAA, to Sen. Leahy,
Ranking Member, Senate Comm. on the Judiciary, May 27, 1998. In a more
recent letter to the Committee, the former NDAA President asks, ``Will
the Amendment be used to call into question the judgment of prosecutors
about how a case is to be handled--to the point of interference and
impedance?'' Letter from William L. Murphy, District Attorney, Richmond
County, New York, to Sen. Hatch, Chairman, Senate Comm. on the
Judiciary, Apr. 3, 2003.
---------------------------------------------------------------------------
Prosecutorial discretion over plea bargaining is
particularly at risk if S.J. Res. 1 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.\63\ 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.\64\
---------------------------------------------------------------------------
\63\ Robert Fichenberg, The Controversial Victims' Rights
Amendment, 30-Oct Prosecutor 38 (1996).
\64\ See Wayne Wilson, Man acquitted in killing after protest by
victim's kin torpedoed plea deal, The Sacramento Bee (July 2, 1997).
Defendant Loren Joost originally pleaded no contest to voluntary
manslaughter, with the understanding that he would be sentenced to no
more than 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 tomake 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 lead prosecutor in 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 a
victims' rights amendment.
Ms. Wilkinson cautioned this Committee that a
constitutional amendment 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 a 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 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.\65\
---------------------------------------------------------------------------
\65\ 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 further 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.\66\
---------------------------------------------------------------------------
\66\ Hearing of Mar. 24, 1999, at 97.
---------------------------------------------------------------------------
James Orenstein, a former federal prosecutor with extensive
experience in organized crime cases, echoed Ms. Wilkinson's
concerns. He gave the following illustration of how the
amendment could make it more difficult for prosecutors to do
their jobs when they need secrecy at some stage of a proceeding
in order to ensure the safety of a witness and the integrity of
an investigation:
When a mob soldier decides to cooperate with the
government, he typically pleads guilty as part of his
agreement, and in some cases then goes back to his
criminal colleagues to collect information for the
government. If his [cooperation] is revealed, he is
obviously placed in great personal danger, and the
government's efforts to fight organized crime are
compromised. Under this Amendment, such disclosures
could easily come from crime victims who are more
sympathetic to the criminals than the government.\67\
---------------------------------------------------------------------------
\67\ Hearing of Apr. 8, 2003 (statement of James Orenstein). The
majority assumes (in part V) that the need for secrecy in certain
proceedings, as when a mob soldier pleads guilty pursuant to a
cooperation agreement, is readily accommodated by closing the
courtroom, thereby rendering such proceedings non-public and not
subject to the proposed amendment. But, in fact, prosecutors rarely
seek such closure due to the high barriers erected by the first and
sixth amendments. Id. See also 28 C.F.R. Sec. 50.9 (``Because of the
vital public interest in open judicial proceedings, the Government has
a general overriding affirmative duty to oppose their closure. There
is, moreover, a strong presumption against closing proceedings or
portions thereof, and the Department of Justice foresees very few cases
in which closure would be warranted.''). The majority also suggests (in
part V) that a State may decide that the victim's right to be heard at
a public plea proceeding does not attach until sentencing, if the court
can still reject the plea at that time. But even if the amendment could
be read to allow such a practice--which we doubt--the problem would
remain, given the victim's separate and independent right not to be
excluded from the plea proceeding.
The rights of victims must be recognized and respected
throughout the criminal process, but 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. We must not create entitlements for
victims that will tie prosecutors' hands and cripple law
enforcement.
There is no doubt that prosecutors would feel personally
constrained by the proposed amendment. The express prohibition
on claims for damages proposed in section 3 of S.J. Res. 1 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
anyperson of any rights secured or protected under the federal
Constitution.\68\ At a minimum, prosecutors who made choices unpopular
with victims would expose themselves to disciplinary action. Meanwhile,
prosecutors who become adversaries to victims because of judicially-
contested conflicts over a case could be required to recuse themselves
from the case in order to defend themselves in the ancillary
proceeding--another unintended consequence that could have significant
adverse effects on the nation's criminal justice system.
---------------------------------------------------------------------------
\68\ United States v. Lanier, 520 U.S. 259 (1997).
---------------------------------------------------------------------------
Other adverse consequences
Creating an absolute right for crime victims to attend
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.
During Committee consideration of S.J. Res. 1 on September
4, Senator Durbin proposed to limit the victim's right to
attend proceedings when ``the victim is to testify and the
court determines that the victim's testimony would be
materially affected if the victim hears other testimony at
trial.'' A lead sponsor of S.J. Res. 1 assured the Committee
that the right to attend proceedings ``is not an absolute
right,'' \69\ and the Committee rejected the proposal by a 7-
to-10 vote. Thereafter, however, the majority report (in part
IV(3)) confirmed that S.J. Res. 1 ``unequivocally recognized''
the victim's right to attend the trial. In so doing, the
majority characterized the ``materially affected'' limitation
as ``inadequate,'' while dismissing as ``implausible'' the very
idea that a victim would ever modify her testimony to comport
with that of earlier witnesses.
---------------------------------------------------------------------------
\69\ Transcript of Markup, Senate Comm. on the Judiciary, Sept. 4,
2003, at 56 (Sen. Kyl; ``It is not an absolute right, and we have
discussed before the ability of the judge to exclude witnesses or
victims under certain circumstances'').
---------------------------------------------------------------------------
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.' '' \70\ Just
three years ago, 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.\71\
---------------------------------------------------------------------------
\70\ 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.
\71\ Portuondo v. Agard, 529 U.S. 61, 67 (2000).
---------------------------------------------------------------------------
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.
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 close the courtroom for certain
proceedings. This could compromise courtroom closure laws
designed to protect child witnesses.\72\ Similarly, it could
cause disruption in the context of juvenile justice
proceedings, which are often closed to the public.
---------------------------------------------------------------------------
\72\ See, e.g., 18 U.S.C. Sec. 3509(e).
---------------------------------------------------------------------------
Finally, S.J. Res. 1's creation (in section 2) of a
victim's right to ``adjudicative decisions that duly consider
the victims' * * * interest in avoiding 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 seek an ``adjudicative decision'' on the timing of
trial, opening the door to victim demands for the immediate
commencement of court proceedings. But forcing prosecutors to
try cases before they are fully prepared plays into the hands
of the defense and could result in cases being dropped or lost.
Military Commissions
We have discussed how the proposed amendment could impair
law enforcement and make it more difficult for prosecutors to
convict criminals. The damage would not stop there, however,
since nothing in the amendment prevents its application beyond
the criminal justice system, both to civil proceedings in
federal and State court (discussed section (E)(3), infra) and
to proceedings held by the U.S. military.
The legislative history of this proposal suggests that it
is intended to apply to military proceedings. While previous
versions specified that the new constitutional rights would
apply in military proceedings ``to the extent that Congress may
provide by law,'' \73\ the current version contains no such
jurisdictional language. Accordingly, the rights it establishes
for ``victims of violent crimes'' would presumptively be held
by all such victims throughout the United States, regardless of
where the proceedings against those accused of victimizing them
may be held. That would mean, at a minimum, military courts
martial, and could also extend to the less traditional tribunal
known as the military commission. If so, the amendment could
impact substantially on any efforts by this or any other
Administration to use military commissions to try suspected
terrorists.
---------------------------------------------------------------------------
\73\ S.J. Res. 3, 106th Cong., Sec. 5 (1999); S.J. Res. 44, 105th
Cong., Sec. 5 (1998).
---------------------------------------------------------------------------
Two months after the devastating attacks of September 11,
2001, President Bush signed a military order authorizing the
use of military commissions to try suspected terrorists.\74\ On
March 21, 2002, the Department of Defense issued an order
prescribing the procedures for such trials.\75\ The order
plainly states that, except in limited circumstances
implicating national security, ``Proceedings should be open to
the maximum extent practicable,'' and ``may include * * *
attendance by the public and accredited press.'' \76\
---------------------------------------------------------------------------
\74\ Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' 66
F.R. 57833 (Nov. 16, 2001).
\75\ U.S. Dep't of Defense, Military Commissions Order No. 1,
Procedures for Trials by Military Commissions of Certain Non-United
States Citizens in the War Against Terrorism (Mar. 21, 2002).
\76\ Id. Sec. 6(B)(3). Even before these procedures issued, the
President's counsel announced that ``Trials before military commissions
will be as open as possible, consistent with the urgent needs of
national security.'' Gonzalez, ``Martial Justice, Full and Fair,'' New
York Times, Nov. 30, 2001.
---------------------------------------------------------------------------
Imagine a trial by military commission post-victims' rights
amendment. With respect to any open proceedings, victims would
presumably enjoy all the rights established in section 2,
including the right to reasonable and timely notice, the right
not to be excluded, and the right reasonably to be heard. With
respect to any proceedings that may be closed for national
security reasons, victims could still enjoy the right to
``adjudicative decisions that duly consider the victim's
safety, interest in avoiding unreasonable delay, and just and
timely claims to restitution.'' \77\ Either way, the amendment
could undermine one of the most cited advantages of military
commissions over civilian trials--the ability to dispense
justice swiftly.
---------------------------------------------------------------------------
\77\ Because the ``adjudicative decisions'' clause lacks the
``public proceeding'' limitation that qualifies other parts of section
2, it arguably applies to decisions made at both public and non-public
proceedings. See section (E)(4), infra.
---------------------------------------------------------------------------
For example, suppose that the defendant being tried by
military commission is charged in connection with the September
11 attacks. Must the military notify the thousands of victims
and families of victims of every open proceeding, and provide
them an opportunity to be heard? Could victims challenge a
decision by the military to hold proceedings at a remote
location outside the continental United States, such as the
naval base at Guantanamo Bay, Cuba, on the ground that it
effectively precludes their attendance and participation? Would
there be a right of appeal, and if so, would it be to an
Article III court (making military commissions subject to the
kind of civilian court review that the President has obviously
taken pains to avoid) or to whatever body may have been
designated to hear appeals by the accused? Both the exercise of
victims' rights and the inevitable litigation associated with
their assertion would substantially increase case processing
times in these highly sensitive cases.
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
involving the crime.'' 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 dozens in 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 Department of Justice once
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.\78\
---------------------------------------------------------------------------
\78\ 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. 131-132 (Apr. 16, 1997) [hereinafter ``Hearing
of Apr. 16, 1997''].
---------------------------------------------------------------------------
The Congressional Budget Office (``CBO'') estimates that
ratification of S.J. Res. 1 would not result in significant
costs for the federal court system because ``the amendment
would apply to crimes of violence, which are rarely prosecuted
at the federal level.'' In fact, thousands of violent offenses
are prosecuted federally each year, 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 did 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, former Attorney
General Janet Reno urged the Committee in 1997 to ``reach out
to all interested parties to explore the serious resource
implications of a constitutional amendment.'' \79\ Six years
later, the Committee still has not done this.
---------------------------------------------------------------------------
\79\ Id. at 132.
---------------------------------------------------------------------------
The potential costs of S.J. Res. 1's constitutionally-
mandated notice requirements alone are staggering, especially
when--as the majority acknowledges (in part V)--``[i]n 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.'' And
that is 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
``reasonably to be heard at public * * * plea * * *
proceedings.'' 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 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. 1 were interpreted
to provide this sort of protection to indigent victims--as the
sixth amendment has been interpreted with respect to indigent
defendants--then we would be confronted with a funding problem
of enormous proportion.
Cognizant of this problem, the majority report (in part V)
purports to find a solution in the amendment's prohibition on
claims for damages. Section 3 of the amendment states in part,
Nothing in this article shall be construed to provide
grounds for a new trial or to authorize any claim for
damages.
According to the majority report, this language ``prevents the
possibility'' that courts might construe the amendment as
requiring the appointment of counsel at State expense to assist
victims. 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'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. As James Orenstein, a former federal prosecutor,
testified,
[If] the current language of the Amendment creates a
right to be present in court proceedings involving the
crime, or at a minimum to be heard orally at some such
proceedings, prison administrators will be faced with
the Hobson's choice between cost- and labor-intensive
measures to afford incarcerated victims their
participatory rights and foregoing the prosecution of
offenses within prison walls. Either choice could
undermine orderly prison administration and the safety
of corrections officers.\80\
---------------------------------------------------------------------------
\80\ Hearing of Apr. 8, 2003 (statement of James Orenstein).
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. 1. 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 2 of the
amendment.
The amendment would also impose a costly, time-consuming
drain on the nation's courts. As we discuss in section (E),
infra, 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. And there would be less court time available for
individual and business users of the courts, including crime
victims.
3. The New Constitutional Rights for Victims Could Undermine Bedrock
Constitutional Protections Afforded to the Accused by the Bill
of Rights
The Bill of Rights has safeguarded the rights of all
Americans for more than 200 years. It has served us well. We
should be very careful about creating new constitutional rights
that may distort or endanger any existing constitutional
rights, of the accused or of anyone else.
During the markup of S.J. Res. 1, the Committee voted down
an amendment proposed by Senator Durbin that stated: ``Nothing
in this article shall be construed to deny or diminish the
rights of the accused as guaranteed under this Constitution.''
This straightforward language would not give criminal
defendants any new rights; it would simply ensure the
preservation of essential constitutional rights that have
protected Americans, albeit imperfectly, from unjust
prosecution and false imprisonment for over 200 years. There is
similar language in the victims' rights provisions of several
state Constitutions, including those of Alabama, Florida,
Indiana, Kansas, Mississippi, Ohio, Oregon, Virginia, and
Wisconsin.
Why the opposition to the Durbin amendment? Over the years,
supporters of the proposed constitutional amendment have said
that it would not affect the rights of criminal defendants.\81\
But if that is true, why the reluctance to say so, clearly, in
the text of the amendment? Why take a chance that courts will
read the victims' rights amendment, as the later in time, to
trump any conflicting rights of the accused under the fifth,
sixth, and eighth amendments? Why run the risk of eroding the
right to a fair trial, and making it more likely that innocent
people will be convicted?
---------------------------------------------------------------------------
\81\ Most recently, at this year's markups of S.J. Res. 1, Senator
Kyl offered several assurances in response to Senator Durbin's
amendment. See, e.g., Transcript of Markup, Subcomm. on the
Constitution, Civil Rights, and Property Rights of the Senate Comm. on
the Judiciary, June 12, 2003, at 44 (``I recognize the legitimate issue
raised, but defendants' rights are fully backed by a couple of
centuries, in some cases, of case law. They are clearly well
established in our jurisprudence and it seems to me that we are not
about to lose those defendants' rights simply by the adoption of these
victims' rights.''); Transcript of Markup, Senate Comm. on the
Judiciary, July 31, 2003, at 43 (``So the language in [S.J. Res. 1] is
simply a reaffirmation of those rights [of the defendant], and nobody
can take those away from a defendant. The record should be absolutely
clear * * * [T]here is ``no later in time'' kind of argument here.'');
Transcript of Markup, Senate Comm. on the Judiciary, July 31, 2003, at
46 (agreeing that ``administration of criminal justice'' language in
section 2 would protect rights of the accused, even if those rights
conflict with newly-created rights for victims).
---------------------------------------------------------------------------
The answer appears to be that the proposed amendment will,
in fact, affect existing constitutional rights, insofar as it
invites courts to ``balance'' the rights of the accused with
the new rights of crime victims. We find this notion troubling.
If the point of the victims' rights amendment is to recalibrate
the balance of liberty struck by the Framers in the
Constitution, there is reason indeed to fear for the rights of
criminal defendants.
Even more troubling, the proposed amendment could be read
to do more than ``balance'' rights: it could be read to
establish the preeminence of victims' rights in all cases.
Section 1 states that victims' rights may never be denied and
may be restricted only under the limited circumstances ``as
provided in this article.'' Section 2 provides the three
exclusive grounds for restricting victims' rights: (1) ``a
substantial interest in public safety''; (2) ``the
administration of criminal justice''; and (3) ``compelling
necessity.'' The constitutional rights of the accused do not
fit comfortably into any of these categories. It is therefore
unclear how a court could ``balance'' those rights with the new
rights that are being established.
The majority report (in part V) points to the precatory
language in section 1 as calling for judicial balancing of
rights. But section 1 does not, by its terms, say that victims'
rights are to be balanced against the rights of the accused.
Instead, it simply declares that those rights are compatible:
``The rights of victims of violent crime, being capable of
protection without denying the constitutional rights of those
accused of victimizing them, are hereby established. * * *''
Nothing in this language suggests how courts are to resolve a
conflict should one arise.
Some proponents of S.J. Res. 1 have argued that nothing in
the Constitution is an absolute and that, therefore, any
conflicts between the constitutional rights of victims and
defendants would inevitably be resolved through balancing. In
fact, some constitutional rights are unquestionably absolute,
including the rights of citizens not to be denied a vote on
account of race (15th amendment) or gender (19th amendment).
But more importantly, no existing constitutional provision
identifies exclusive restrictions upon the rights being
established. By using this novel formulation, S.J. Res. 1 would
appear to establish a novel set of rights that are indeed
absolute, except insofar as they are expressly limited.
Conflicts between the victims' rights established by S.J.
Res. 1 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. 1 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(3)) 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 (in section (C)(1)), 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.
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.\82\ Whether done purposefully
or, more likely, unintentionally, a victim exhibiting such behavior may
unfairly prejudice the defendant.
---------------------------------------------------------------------------
\82\ 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, 1703-1704 (1997).
---------------------------------------------------------------------------
Proponents of S.J. Res. 1 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. But it is not at all
clear how courts could control such conduct if victims have an
unequivocal constitutional right not to be excluded. In sum,
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.
A victim's right to be heard could undermine the accused's
right to due process
The proposed amendment gives victims a constitutional right
``reasonably to be heard'' at many stages in the criminal
proceeding, including guilty pleas and sentencing. While laws
providing for reasonable victim input generally improve the
criminal justice system, inserting this ill-defined right into
the Constitution risks the denial of defendants' due process
rights. That risk is heightened in capital cases where, unlike
most other cases, jurors are asked to determine the sentence
and emotions can easily overcome reason.
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 in the criminal case even before a
conviction. I do not think crime victims should have a
constitutional right to give input into bail decisions
and plea agreements. I think crime victims are too
emotionally involved in the case and will not make the
best decisions about how to handle the case.\83\
---------------------------------------------------------------------------
\83\ Statement of Bud Welch, submitted to Senate Comm. on the
Judiciary, Hearing of Apr. 8, 2003.
Another bereft parent, Patricia Perry, testified, ``Victims
and family members are not dispassionate. We are angry,
depressed, and mourning. As families, we have a torrent of
emotions that are not useful in preparing a legal case. We
usually lack expertise and have a desire for vengeance that we
claim is the need for justice.'' \84\
---------------------------------------------------------------------------
\84\ Hearing of Apr. 8, 2003 (statement of Patricia Perry).
---------------------------------------------------------------------------
We share Mr. Welch's and Mrs. Perry's concern that
injecting too much emotion into criminal proceedings will
increase the chance of unfair and wrongful results, in
violation of a defendant's right to due process. Such problems
are especially troubling in capital cases, where the emotional
impact of the crime is at its zenith and the consequences of
injustice are intolerable. That is why it is particularly
important to preserve the Constitution's careful balance in
such cases between giving victims their voice and protecting
the defendant's right to due process.
The Supreme Court recognized over a decade ago, in Payne v.
Tennessee, that rules prohibiting victims from telling
sentencing jurors about the impact a murder has had on their
lives--and thereby skewing the information available to a
sentencing jury about the defendant's blameworthiness--are ``an
affront to the civilized members of the human race.'' \85\ But
as the Court recognized, there is an important difference
between allowing sentencing juries to learn about the full
impact of a defendant's crime and allowing victims to make a
plea for a certain sentencing result, which carries the very
risks of injustice that Mr. Welch and Mrs. Perry so eloquently
described. For that reason, the Supreme Court interpreted the
Constitution to allow victim impact statements in capital
sentencing hearings, but to prohibit victims--or any other
witnesses--from recommending a sentence.\86\
---------------------------------------------------------------------------
\85\ 501 U.S. 808, 826 (1991).
\86\ Id. at 830, n.2 (preserving prior holding that admission of a
murder victim's family members' characterizations and opinions about
the crime, the defendant, and the appropriate sentence violates the
eighth amendment.)
---------------------------------------------------------------------------
The proposed amendment could undo this delicate balance and
erode capital defendants' due process rights. The majority
report (in part V) suggests in passing that S.J. Res. 1 would
``enshrine and perhaps extend the Supreme Court's decision in
Payne v. Tennessee.'' But there is no need to ``enshrine'' the
decision--the Supreme Court has already done so. And
``extending'' it can only be a euphemism for undoing it--
because the only kind of victim input that Payne forbade was
the kind that would violate a defendant's due process rights.
Thus, if the proposed amendment were read to give victims the
right to recommend for or against imposition of a death
sentence, \87\ there would be a conflict between the rights of
the victim and the accused, despite the assurance to the
contrary in section 1.\88\
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\87\ The majority provides no guidance as to how courts could
implement a victim's right to recommend a sentence to a capital case
jury. What would the judge tell the jurors about how to weigh such
pleas? Normally, judges instruct jurors that they must make their
decisions ``without fear, favor, or sympathy'' to any person--but the
precise point of allowing victims to make such recommendations would be
to permit them to try to persuade jurors to act on the basis of
sympathy. Judges also tell capital jurors that their sentencing
decisions should reflect the community's moral judgment. How could they
reconcile that instruction with a rule allowing victims (but presumably
not other witnesses) to recommend sentences, when, as Mr. Welsh and
Mrs. Perry have shown, it is unreasonable to expect that victims will
discard their personal interests and reflect the dispassionate will of
the community in their recommendations?
\88\ See generally Hearing of Apr. 8, 2003 (response of James
Orenstein to follow-up question 5 by Sen. Leahy).
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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 ``adjudicative decisions that duly consider the
victim's * * * interest in avoiding unreasonable delay.'' Just
as this provision risks forcing prosecutors to trial before
they are fully prepared, it risks forcing defendants to do the
same. Defendants may also seek to postpone the trial to let
prejudicial publicity about the case dissipate. Under the
proposed amendment, the defendant's need for more time could be
outweighed by the victim's assertion of his right to have the
matter expedited, seriously compromising the defendant's
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, ``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.'' Is rights language proposed
to be added to the Constitution only to be reduced to hortatory
sentiment?
Constitutionalizing victims' rights raises equal protection
concerns
We should consider the question of equal protection and
equality of treatment of our defendants. During a hearing on
the amendment in the 105th Congress, 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? \89\ By
the same token, should the amount of time that a defendant
spends in jail turn on the effectiveness of the victim's
attorney?
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\89\ Hearing of Apr. 16, 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 from this system, as the
majority report acknowledges (in part I). 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. 1
maintain that it would not, and was never intended to,
denigrate the rights of the accused in any way. 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 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.\90\
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\90\ 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.
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. Former Attorney General Janet Reno once stated,
``the very best way that [we] * * * can serve victims of crime
is to bring those responsible for crime to justice.'' \91\ 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.'' \92\ 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.
---------------------------------------------------------------------------
\91\ Hearing of Apr. 16, 1997, at 42.
\92\ Letter from William L. Murphy, President, NDAA., to Sen.
Leahy, Ranking Member, Senate Comm. on the Judiciary, May 27, 1998.
---------------------------------------------------------------------------
D. THE PROPOSED AMENDMENT INFRINGES UNDULY ON STATES' RIGHTS
The proposed amendment constitutes a significant intrusion
of federal authority into a province traditionally left to
State and local authorities. Many of our colleagues, in making
their arguments in support of the proposed constitutional
amendment, point out that the overwhelming majority of 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 possess primary authority for
defining and enforcing the criminal law.'' \93\ 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.
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\93\ 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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It has been suggested that this ``States'' rights''
argument is meant to mask resistance to victims' rights, just
as similar arguments were made earlier in the century to mask
resistance to the 19th amendment, giving women the right to
vote. In fact, those of us who oppose S.J. Res. 1--including
many of the largest victims' organizations in the country--are
strong supporters of victims' rights; we differ with the
majority only in that we believe the preferred way to protect
those rights is by statute and not by constitutional
amendment.\94\
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\94\ Beyond that, the current debate over S.J. Res. 1 is simply not
comparable to the last century's debate over women's suffrage. In 1918,
just before the 19th amendment was ratified, only 15 States gave women
full suffrage. See Congressional Research Service, Women's Electoral
Participation and Representation in Elective OffIce, RS20014, Jan. 4,
1999, at 2, n. 4. This amounted to less than one-third of the 48 States
that were members of the Union at that time. By contrast, as the
majority acknowledges (in part II), every State in the Union has passed
rights and protections for crime victims, and 33 have adopted victims'
rights amendments to their State constitutions. The ``States' rights''
argument is therefore not, as it was in earlier times, a smokescreen
masking the unwillingness of many legislators to protect a disfavored
group--to the contrary, it is an affirmation that our colleagues in the
States have already proved themselves willing and able to pass
effective laws on behalf of the crime victims we all support.
---------------------------------------------------------------------------
The majority report attempts to deflect the federalism
concerns raised by S.J. Res. 1 by claiming (in part V) that
``the States will retain their power to implement the
amendment.'' The majority also asserts (in part V) that
``Nothing removes from the States their plenary authority to
enact definitional laws for purposes of their own criminal
justice systems,'' noting specifically that State legislatures
will define key terms such as ``victim'' and determine when the
right to be heardattaches.\95\ If this interpretation were
correct, it would undermine the majority's own rationale for the
amendment, 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.\96\
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\95\ Similarly, a leading advocate of S.J. Res. 1 has explained,
``It is intended that both the word `victim' and the phrase `victim's
lawful representative' will be the subject of statutory definition, by
the State Legislatures and the Congress, within their respective
jurisdictions. No single rule will govern these definition.'' Hearing
of Apr. 8, 2003 (statement of Steve Twist; emphasis added).
\96\ 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).
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More likely, however, is that the majority's
interpretation, while politically expedient, is legally
untenable. For one thing, as we discuss in section (E)(8),
infra, even Congress may be without authority to define the
substance of the rights established by S.J. Res. 1. In
addition, the notion that S.J. Res. 1 empowers States to pass
implementing legislation is flatly inconsistent with the plain
language of section 4: ``The Congress shall have power to
enforce by appropriate legislation the provisions of this
article.'' (emphasis added). Virtually identical language in
earlier constitutional amendments has been read to vest
enforcement authority exclusively in the Congress.
In the case of S.J. Res. 1, moreover, the text is
illuminated by the legislative history. Earlier drafts of the
amendment expressly extended enforcement authority to the
States.\97\ 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. 1 deprives
States of authority to legislate in the area of victims'
rights. Indeed, both Chairman Hatch and the States' Chief
Justices have read the proposed amendment in precisely this
way.\98\
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\97\ 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.''
\98\ See S.J. Res. 44--Proposing An Amendment to the Constitution
of the United States to Protect the Rights of Crime Victims, S. Rep.
No. 105-409, 105th Cong., 2d Sess. 44 (1998) (additional views of Sen.
Hatch); Hearing of Mar. 24, 1999, at 252 (Letter from Conference of
State Justices to Sen. Ashcroft, urging modification of proposed
constitutional amendment that would allow State legislatures to
implement it with respect to State proceedings).
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This is troubling in three regards. First, S.J. Res. 1
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. Beyond
this, S.J. Res. 1 threatens to cut back on the historic power
of our State Governors to grant executive clemency.
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.'' \99\ 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.
---------------------------------------------------------------------------
\99\ 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 few years since the Committee
first 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.\100\
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\100\ Letter from Joseph Weisberger, Chief Justice, Supreme Court
of Rhode Island, to Congressmen Charles Canady and Melvin Watt, Feb. 2,
2000. The Conference recently reaffirmed this position in a letter
dated June 26, 2003, from Chief Justice E. Norman Veasey to Sen. Biden.
Five Republican law professors wrote the Committee to
emphasize the benefits of our current State-based approach to
---------------------------------------------------------------------------
protecting crime victims:
[S]tate legislators can take advantage of the
experience of the other States: Laws that prove too
costly, too vague, or counterproductive can get
replaced. Laws that prove effective can be adopted in
other States. And as time goes on and new needs arise,
State legislatures can adapt to these needs. This
experimentation would be much harder if the matter were
given to the Federal courts.\101\
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\101\ Letter from Republican Law Professors Regarding the Proposed
Victims' Rights Constitutional Amendment, supra.
Former Senator Fred Thompson echoed these same concerns in
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1998, when he served on this Committee:
Our federalist system is not only faster and more
effective than amending the Constitution, but it also
offers the great benefit of flexibility. The victims'
rights movement is challenging us to fundamentally
rethink our approach to criminal justice.
Traditionally, our criminal justice system has focused
on the State's interest in punishment versus the rights
of the accused. Now we are being asked to graft into
this adversarial system constitutional rights of crime
victims. It may well be time to rethink our criminal
justice system. But, if so, the experimentation and
flexibility that the States offer are all the more
important. If the current balance between the interests
of the State and the accused is complex--and it surely
is--then our adversarial system will be vastly
complicated by a three-way relationship among the
State, the accused, and victims. Each crime is
different, and balancing these three interests on a
case-by-case basis would be no small task. It is
critical we learn from the experience of the States
before deciding to add new victims' rights to the
Constitution.\102\
---------------------------------------------------------------------------
\102\ S. Rep. No. 105-409, supra, at 48 (minority views of Sen.
Thompson; emphasis added).
The Pennsylvania Coalition Against Domestic Violence wrote
---------------------------------------------------------------------------
in its letter opposing S.J. Res 1:
Most [State constitutional amendment protecting
victims' rights] have passed only within the last
decade, yielding little opportunity to learn from the
implementation process. It is premature to move forward
on something as sweeping and long-lasting as a Federal
Constitutional amendment without taking the time to
learn from the remedies provided by State
constitutional victims' rights amendments.\103\
---------------------------------------------------------------------------
\103\ Letter from Susan Kelly-Dreiss, Executive Director,
Pennsylvania Coalition Against Domestic Violence, to Sen. Specter, Apr.
7, 2003.
Similarly, the National Network to End Domestic Violence
cautioned the Committee in 1999, ``Without benefiting from the
State experience, we run the risk of harming victims.'' \104\
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\104\ Hearing of Mar. 24, 1999, at 233 (emphasis added). More
recently, the National Network advised, ``we have learned the hard way
in domestic violence cases that remedies need to be flexible and allow
for innovative solutions. Every policy and practice that we have seen
implemented at the State and local level has resulted in unintended
consequences.'' Statement of Lynn Rosenthal, Executive Director,
National Network to End Domestic Violence, submitted to the Senate
Comm. on the Judiciary, Hearing of Apr. 8, 2003.
---------------------------------------------------------------------------
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.''
Of course, the swifter process to providing victims' rights is
by statute, not by constitutional amendment. Years, even
decades, could ensue before real change is seen by means of
such a top-down path.
Moreover, 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
Constitution. We should have more information about what the
States are failing to do before the Federal Government shuts
down their research.
Example: The States' experimentation has not yet led to a
consensus on the appropriate scope of the victim's right to
attend trial proceedings at which they are going to be called
as witnesses. A few States, including Alabama, Arkansas, and
Louisiana, have specifically provided that the rule regarding
exclusion of witnesses does not apply to victims.\105\ 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.\106\ 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 a victim in order to
preserve the defendant's right to a fair trial. 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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\105\ Ala. Stat. Sec. 15-14-55; Ark. R. Evid. 616; La. Code Evid.
Art. 615(B)(4).
\106\ 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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2. The Amendment Would Impose an Unfunded Mandate on the States
We have already discussed (in section (C)(2)) the
potentially staggering costs that S.J. Res. 1 could impose on
the 50 States. 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.
Largely for this reason there is opposition to the proposed
amendment among some of the very people who most strongly
support victims' rights--prosecutors and law enforcement
officers. They are sympathetic to victims, and would welcome
the resources to enable them to provide victims with notice and
other assistance. They do not, however, want another unfunded
mandate that will have the Federal courts and special masters
directing the activities of their under-funded offices. Instead
of unfunded mandates, we need to encourage States to provide
the support and services that many victims of crimes need and
deserve.
3. The Amendment Would Lead to Extensive Federal Court Supervision of
State Law Enforcement Operations
Under S.J. Res. 1, a victim does not have the ability to
sue for damages. A victim may, however, ask a Federal court for
injunctive 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 concern
that the proposed amendment would lead to ``extensive Federal
court surveillance of the day to day operations of State law
enforcement operations,'' and could also result in victims
seeking injunctive relief against State officials in Federal
court.\107\
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\107\ Letter from Joseph Weisberger, Chief Justice, Supreme Court
of Rhode Island, to Congressmen Charles Canady and Melvin Watt, Feb. 2,
2000.
---------------------------------------------------------------------------
Former Senator Fred Thompson characterized the proposal as
``a dramatic arrogation of Federal power'' that would
``effectively * * * amend the 10th amendment and carve away
State sovereignty.'' \108\ 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.
---------------------------------------------------------------------------
\108\ S. Rep. No. 105-409, supra, at 49 (minority views of Sen.
Thompson).
---------------------------------------------------------------------------
``[F]ederalism was the unique contribution of the Framers
to political science and political theory,'' \109\ and it has
served this country well. We do not need a constitutional
amendment to turn this system on its head. We have no pressing
reason to thwart the States' experimentation with innovative
victims' rights initiatives and to displace State laws in an
area of traditional State concern. We have no compelling
evidence pointing to the need for another unfunded mandate. And
we certainly do not need more Federal court supervision and
micro-management of State and local affairs, 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.
---------------------------------------------------------------------------
\109\ Lopez, 514 U.S. at 575 (Kennedy, J., concurring).
---------------------------------------------------------------------------
4. The Amendment Would Adversely Affect the Authority of Governors to
Grant Clemency
At the request of the Administration, this year's version
of the proposed constitutional amendment contains savings
language, in section 4, that expressly reserves the President's
power to grant reprieves or pardons to those convicted in the
Federal system. Although the vast majority of defendants are
convicted in the State systems, section 4 contains no similar
language regarding the clemency power of State governors.
Indeed, during the markup of S.J. Res. 1, the Committee
expressly rejected a proposal by Senator Leahy to modify this
section to read, ``Nothing in this article shall affect the
authority of the President or a Governor to grant reprieves or
pardons.''
The majority argues (in part IV(4)) that Congress already
has the power to ensure that victims are notified and given an
opportunity to be heard before the President exercises his
pardon power. If so, it is further evidence that the proposed
constitutional amendment is unnecessary.
However, because every word in a constitutional amendment
is meaningful, we must assume that without the savings language
in section 4 regarding the President's authority to grant
pardons, S.J. Res. 1 would affect that power in some way. It
follows that, without similar language, S.J. Res. 1 will affect
the clemency authority of State Governors. In fact, by
expressly preserving the President's authority and not the
Governors', S.J. Res. 1 implicitly affirms that it is intended
to affect the Governors' authority.
Executive clemency is the historic remedy for preventing
miscarriages of justice where the judicial process has failed.
Chief Justice Rehnquist wrote in 1993:
Clemency is deeply rooted in our Anglo-American
tradition of law, and is the historic remedy for
preventing miscarriages of justice when the criminal
justice system has been exhausted. * * * It is an
unalterable fact that our judicial system, like the
human beings who administer it, is fallible. But
history is replete with examples of wrongfully
convicted persons who have been pardoned in the wake of
after-discovered evidence establishing their innocence.
* * * Recent authority confirms that over the past
century clemency has been exercised frequently in
capital cases in which demonstrations of ``actual
innocence'' have been made.\110\
---------------------------------------------------------------------------
\110\ Herrera v. Collins, 506 U.S. 390, 411-415 (1993).
Restricting the governors' clemency power risks increasing
the chance that a wrongfully convicted person will remain
incarcerated or, much worse, be put to death. We should not
take that risk unnecessarily. Moreover, basic principles of
federalism dictate that we should not do so at allunless it is
clear on the face of the amendment that this is our purpose, such that
the States, when asked to ratify, understand the consequences with
respect to their governors' historic power to grant clemency.
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. 1 is problematic.
This is not for lack of trying. There have been some 64
drafts of this proposed constitutional amendment, and they have
differed substantially. Indeed, this year's version is
radically different--and about 140 words shorter--than the last
version that the Committee reported, in September 1999. The
fact that this proposal changes in form and substance from year
to year does not inspire confidence that we have discerned the
correct formulation. We continue to believe that 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.
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 would also
enjoy ``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
The most basic point about any constitutional right is,
whose right is it? In August 1997, the ABA House of Delegates
resolved that any measure to recognize victims' rights in the
criminal justice system should, among other things, define the
class of protected ``victims.'' More than six years later, the
proposed constitutional amendment still fails to adhere to this
basic principle.
By contrast, other constitutional provisions are relatively
clear. The 6th amendment, to which the proposed victims' rights
amendment is often compared, guarantees rights to those who
have been formally accused of a crime and (after some
clarification by the Supreme Court) we know who they are. The
5th amendment is equally clear, although written in terms of a
restriction on government power (``No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury * * * nor shall any
person be subject for the same offence to be twice put in
jeopardy. * * *''). The other amendments to our present
Constitution are even more straightforward, since they apply
without exception to ``the people,'' or to ``citizens of the
United States,'' or, in the case of the fourteenth amendment,
to ``all persons born or naturalized in the United States and
subject to the jurisdiction thereof.''
Who would have rights under the proposed victims' rights
amendment? The answer in the text of the amendment is ``victims
of violent crime,'' but what does that mean? Consider the most
obvious violent crime--murder. Ordinarily, we would think of
the victim of this crime as the dead person, but that answer--
what Justice Scalia might call the plain language approach to
interpretation--will not do here. Maybe no one gets the benefit
of the proposed constitutional rights in a murder case. Maybe
the reference in section 3 to ``the victim's lawful
representative'' refers, in a murder case, to the executor or
co-executors of the victim's estate (assuming the victim left a
will), although people selected for their financial management
abilities may not be the people most interested in the criminal
prosecution. Or maybe the amendment's supporters are banking on
so-called ``activist judges'' to add words to the amendment
that are not there and extend the new rights to members of the
murder victim's family. \111\
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\111\ This appears to be the majority's strategy. The majority
report states (in part V): ``In homicide cases, victim's rights can be
asserted by surviving family members or other persons found to be
appropriate by the court.''
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This would raise other questions, like which family members
would be covered. Would the eight-year-old son of a murder
victim be entitled to make arguments in connection with a
negotiated guilty plea? Would unmarried couples, be they
heterosexual or homosexual, count as families? What about
members of the extended family--aunts and uncles, cousins,
grandparents, or in-laws? And what happens when members of the
victim's family hold different views about the death penalty,
or each wants a share of the mandatory restitution order?
Let us consider another sort of violent crime--armed
robbery of a convenience store. Who must be notified of public
proceedings involving this crime: The security guard who was
shot and physically injured? The 10 customers who were
psychologically traumatized but not physically injured? The
store owners (or their insurance company), who were not present
during the robbery but suffered financial loss? Is the answer
the same when it comes time to award restitution, or are the
``victims'' for that purpose limited to those who actually lost
money?
We have discussed two relatively straightforward crimes,
murder and robbery. Other crimes, such as crimes involving
terrorism and mass violence, or compound crimes under the
federal RICO statute that can include lots of different
criminal acts, some violent and some non-violent, over an
extended period of years, will involve even harder problems
when courts try to identify who is, and who is not, a
``victim.'' 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? Would all the relatives of
the thousands killed in the terrorist attacks of September 11,
2001, be entitled to weigh in on any plea bargains offered to
defendants implicated in that catastrophe?
The failure to define ``victim'' raises another set of
problems with respect to crimes committed, or allegedly
committed, in self defense. In a typical case, the police get a
call from neighbors who hear shouting and screaming and pots
and pans being thrown. They reach the house and find the
husband and wife hysterically angry at one another and a young
child cowering in the corner. It is not entirely clear who
attacked whom, but the husband is injured and the police arrest
the wife and charge her with assault. The wife claims it was
self-defense; the husband claims she attacked him without
provocation.
Under current law, it is up to the jury to determine who is
the victim and who is the criminal in this sad domestic
scenario, and the jury makes that determination after hearing
all the evidence from both sides at trial. Under the proposed
amendment, however, that determination must be made at the
outset, before the wife's bail hearing and, in many cases,
before there has been a full investigation of the facts. Once
the wife is charged, the husband gets the special new
constitutional rights of a crime victim. Maybe he will push for
bail or for a plea with a minimum sentence conditioned on his
getting custody of the child, perhaps accompanied by a new kind
of child support called ``restitution.'' Or maybe the husband
will be satisfied with his new constitutional right to notice
of his wife's release from custody, which will help him track
her down and exact revenge. 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,
Wisconsin, Pennsylvania, and Wyoming--all oppose a victims'
rights constitutional amendment for these reasons.
Illustrative of the peculiar problems raised by domestic
violence cases is State ex rel. Romley v. Superior Court.\112\
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 his partner, now the defendant. Moreover, the defendant,
not the husband ``victim,'' 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.
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\112\ 836 P.2d 445 (Ariz. Ct. App. 1992).
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While nothing in S.J. Res. 1 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. 1 want to shelve the difficult
definitional debate until such time as Congress is called upon
to implement the amendment. But it is premature to pass this
proposal on to the States for ratification without providing
clear guidance on this basic issue.
2. The Term ``Violent Crime'' Is Undefined and Arbitrary
The scope of the proposed amendment also turns on a second
undefined term, ``violent crime.'' Ordinarily, violent crimes
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 ``violent crime'' (or the
comparable 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.\113\
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\113\ 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) incorporates felonies under
chapter 109A and chapter 110, relating to sexual abuse and sexual
exploitation of children.
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Other crimes present hard cases, too. Is drunk driving a
crime of violence if the driver physically injures a
pedestrian? What if the driver runs over the pedestrian's dog,
or crashes into a parked car? Can the same offense be a crime
of violence if someone is physically injured, but not
otherwise?
What about elder abuse or child abuse that takes the form
of extreme neglect? Neglect of the weak and vulnerable in our
society by those who have taken the responsibility of being
their caregivers can cause as much harm as almost any violence,
without a hand ever being lifted against them. But are neglect
and psychological abuse ``violence''?
The crime of parental kidnapping raises similar questions.
If a parent who has been denied legal custody of a child
kidnaps the child, is that a crime of violence, and if so, who
is the victim--the child, the custodial parent or both?
The text of the proposed amendment does not answer these
questions. The majority report (in part V) suggests answers,
some of which seem to stretch the concept of a ``violent
crime'' to the breaking point. It suggests, for example, as
possible crimes of violence, burglary, driving while
intoxicated, espionage, stalking, and the unlawful displaying
of a firearm--very serious crimes, but crimes that usually do
not involve ``violence'' in the normal sense of the word.
Again, the sponsors of the proposed amendment leave it to
future legislation and the courts to sort out the meaning of
``violent crime.'' 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.
Beyond the problem of defining ``violent crime,'' limiting
the scope of the amendment to such a concept is unconscionably
arbitrary. Chairman Hatch discussed this problem with respect
to an earlier version of the proposed amendment. He wrote:
I believe we must tread carefully when assigning
constitutional rights on the arbitrary basis of whether
the legislature has classified a particular crime as
``violent'' or ``non-violent.'' Consider, for example,
the relative losses of two victims. First, consider the
plight of an elderly woman who is victimized by a
fraudulent investment scheme and loses her life's
savings. Second, think of a college student who happens
to take a punch during a bar fight which leaves him
with a black eye for a couple of days. I do not believe
it to be clear that one of these victims is more
deserving of constitutional protection than the other.
While such distinctions are commonly made in criminal
statutes, the implications for placing such a disparity
into the text of the Constitution are far greater.\114\
\114\ S. Rep. No. 105-409, supra, at 42 (additional views of Sen.
Hatch).
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The sponsors of S.J. Res. 1 do not in any way disagree that
the scope of their proposed amendment is arbitrary. Instead,
they explain it as a political compromise.\115\ But surely we
owe the American people something more than arbitrary political
compromises when we amend their Constitution.
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\115\ See, e.g., Crime Victims' Rights Constitutional Amendment, S.
Rep. No. 106-254, 106th Cong., 2d Sess., part IX (additional views of
Sens. Kyl and Feinstein).
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3. The Right to ``Reasonable and Timely Notice of Any Public Proceeding
Involving the Crime'' Is Undefined and May Have Unintended
Consequences in Civil and Military Proceedings
The proposed amendment requires that victims be given
``reasonable and timely notice of any public proceeding
involving the crime and of any release or escape of the
accused.'' But, again, key terms are left undefined. Most
importantly, what constitutes ``reasonable and timely 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 and timely notice'' gives no indication as to what
manner of notice a victim must receive. 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.
The term ``public proceeding,'' while seemingly
straightforward, may also be less clear than it seems. For
example, the majority report (in part V), reads section 2's
right to be heard at public release proceedings to apply even
in jurisdictions where parole decisions are not made in public
proceedings. ``For such jurisdiction,'' the majority writes,
``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.'' That reading may have been correct under
the provisions of a previous version of the proposed amendment,
which explicitly extended the right to be heard to the context
of ``a parole proceeding that is not public, to the extent
those rights are afforded to the convicted offender,'' \116\
but it is plainly incorrect now that such language has been
excised from the bill. That the majority blithely assumes the
amendment will mean what they want it to mean, regardless of
its actual text, betrays a cavalier attitude unworthy of either
our Constitution or of the victims to whom they are making
promises they cannot possibly keep.
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\116\ S.J. Res. 3, 106th Cong., Sec. 1 (1999).
---------------------------------------------------------------------------
To what extent would the notification right established by
S.J. Res. 1 apply to civil proceedings? The Justice Department
has said ``not at all,'' \117\ but we are not so sure. Section
2 states that a victim shall have the right to reasonable and
timely notice ``of any public proceeding involving the crime.''
While most public proceedings involving a crime arise from a
criminal prosecution, the plain language of section 2
encompasses some civil proceedings.
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\117\ See Hearing of Apr. 8, 2003 (``I do not believe that the
amendment as written grants victims the right to be informed of civil
actions. * * *''; response of Viet Dinh, Assistant Attorney General, to
follow-up question 6 by Sen. Leahy).
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Consider, for example, a wrongful death action brought by
the mother of a homicide victim against the suspected killer.
Who would have the constitutional obligation to provide
``reasonable and timely notice'' to the plaintiff's estranged
husband (and father of the victim)? The plaintiff (who, as a
crime victim, should not be burdened by this amendment), the
court (which is already overburdened and may lack the
information necessary to provide the required notice), or the
law enforcement agencies that investigated and prosecuted the
crime (which may not even know that the civil action has been
brought)? We agree with one former prosecutor, who argued that
this burden would inevitably fall to law enforcement, even
though it was ``totally unrelated to improving the lot of crime
victims in the criminal justice system and * * * would further
deplete the already strained resources of prosecutors and
police, assuming that they even have sufficient knowledge of
the ancillary suit to fulfill their obligations.'' \118\
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\118\ Hearing of Apr. 8, 2003 (statement of James Orenstein).
---------------------------------------------------------------------------
Just as the amendment could, by its terms, apply in civil
cases, it could also be construed to apply in proceedings
brought by the U.S. military. As previously discussed (in
section (C)(1)), such application could impact substantially on
any efforts to use military commissions to try suspected
terrorists.
4. The ``Adjudicative Decisions'' Clause Creates a Morass of Undefined
Issues and May Effect a Profound Change in Criminal
Adjudication
One of the new features in the latest version of the
proposed amendment is the establishment of a right to obtain
``adjudicative decisions that duly consider the victim's
safety, interest in avoiding unreasonable delay, and just and
timely claims to restitution from the offender.'' This ill-
defined clause will, at a minimum, lead to extensive
litigation, and could have extraordinary adverse consequences.
What are ``adjudicative decisions''? The term is not
defined as a matter of constitutional law, and it appears
expansive. In the typical criminal case, a facially reasonable
interpretation would apply to scores, perhaps hundreds, of
rulings. Moreover, there is no reason to believe that
``adjudicative decisions'' can be made only by judges. Is a
Governor's decision to commute a sentence ``adjudicative''?
What about a jury's verdict or sentencing recommendation in a
capital case?
Virtually the only input we have had on the meaning of the
new language, offered by a leading supporter of the amendment,
confirms that it is intended to be far-reaching:
``'[A]djudicative decisions' includes both court decisions and
decisions reached by adjudicative bodies, such as parole
boards. Any decision reached after a proceeding in which
different sides of an issue would be presented would be an
adjudicative decision.'' \119\
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\119\ Hearing of Apr. 8, 2003 (statement of Steve Twist).
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Further, because the section 2 clause respecting
``adjudicative decisions'' lacks the ``public proceeding''
limitation written into other parts of that section, it will
likely apply to decisions made at both public and closed
proceedings. That fact creates yet another question that the
majority has left unresolved: In a non-public proceeding, at
which the victim has no participatory rights, who will present
the information about victim safety that the decisionmaker must
``duly consider''? If it is the victim, then the participatory
rights granted in section 2 are broader than previously
imagined. If it is the prosecutor, then the mandate in section
3 that only the victim may assert the victim's rights is
narrower than previously imagined. Moreover, if the prosecutor
fails to present information about victim safety that the
victim subsequently articulates, that may open the decision to
challenge, appeal, and rehearing.
As vexing as the attempt to define ``adjudicative
decisions'' may prove, it could pale in comparison to the
daunting task of deciding whether each such decision has ``duly
considered'' the various interests identified in section 2.
Even if the courts eventually decide that only judges make
``adjudicative decisions,'' the requirement that each such
decision ``duly consider the victim's safety, interest in
avoiding unreasonable delay, and just and timely claims to
restitution from the offender'' could lead to endless
litigation in criminal cases. Courts will have to grapple with
any number of questions, the resolution of which could make the
prosecution of offenders a far lengthier and more complicated
process.
Consider the first of the three interests that, under
section 2, must be duly considered in all adjudicative
decisions: the victim's safety. In the typical criminal case,
victim safety is normally considered in relation to bail and
other conditional release decisions, and may also be considered
in relation to decisions involving sentencing, revocation of
probation, parole, and clemency. Victim safety generally is not
considered in relation to decisions that affect, directly or
indirectly, whether the defendant is convicted, such as
decisions involving suppression of evidence on constitutional
grounds, privilege and other evidentiary issues, and jury
instructions. If these types of potentially outcome-
determinative decisions--or the final determination as to guilt
or innocence--must duly consider the victim's safety, the
consequences for the defendant's right to a fair trial could be
severe.
Previous versions of the proposed amendment approved by the
Committee avoided such problems, but only by using a level of
precision more suited to a statute than an amendment to the
Constitution. They provided the right ``to consideration for
the safety of the victim in determining any conditional release
from custody relating to the crime.'' \120\ While unnecessary,
in that there are no current constitutional provisions that
prevent such consideration--and indeed the Supreme Court has
specifically endorsed such consideration as to preventive
detention \121\--the grant of the right was relatively clear,
understandable, and limited. It would have allowed courts to
extend the new right at appropriate points in the proceedings,
and not elsewhere. By contrast, the right granted by S.J. Res.
1 is ill-defined, unjustified, and potentially radical in its
scope and impact.
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\120\ S.J. Res. 3, 106th Cong., Sec. 1 (1999); S.J. Res. 44, 105th
Cong., Sec. 1 (1998).
\121\ United States v. Salerno, 481 U.S. 739 (1987).
---------------------------------------------------------------------------
The other interests of victims that must be ``duly
considered'' under this proposal--i.e., the interests in
``avoiding unreasonable delay'' and ``just and timely claims to
restitution''--also raise troubling questions. Could victims
object to the admission of evidence on the ground that it would
lengthen the trial, and thus impair their interest in avoiding
unreasonable delay? Must every ``adjudicative decision'' in a
criminal case examine the effects of the ruling on the right to
restitution? Examples could be multiplied, and undoubtedly some
would be more fanciful than others. But given the change in
language from the previous proposal, and given the countless
adjudicative decisions that are made in the course of every
criminal prosecution, it seems inevitable that the current
version of the proposed amendment would cause real mischief.
5. The Remedial Scheme Is Uncertain and Could Substantially Increase
Case Processing Times
Unlike every other provision in the Constitution, the
proposed amendment would by its own terms limit the scope of
remedies available for the violation of the rights it purports
to guarantee. Section 3 provides, in part: ``Nothing in this
article shall be construed to provide grounds for a new trial
or to authorize any claim for damages.'' The fact that any such
limitation is necessary highlights the potential for mischief
that the proposed amendment could visit upon our criminal
justice system.
More importantly, the lack of precision as to what remedies
are and are not intended to be permitted by this provision will
lead to more costly and time consuming litigation and could
place an enormous drag on our already overburdened courts. That
is because, unlike past versions of the proposed amendment,
S.J. Res. 1 could be construed to provide grounds to stay
trials, reopen proceedings, and invalidate rulings. Indeed,
such a construction seems likely, given the relevant
legislative history.
The previous version of the proposed amendment stated,
``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.''
\122\ When the Committee approved that version in 1999, it
explained that the prohibitions on judicially-created remedies
``to stay or continue any trial'' and ``reopen any proceeding
or invalidate any ruling'' were added ``because of the concern
that a broad judicial remedy might allow victims to
inappropriately interfere with trials already underway.'' \123\
By omitting these prohibitions--and by specifically rejecting a
proposal to reinsert them \124\--the Committee invites courts
to grant victims' requests for such relief to remedy violations
of their rights.
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\122\ S.J. Res. 3, 106th Cong., Sec. 2 (1999).
\123\ S. Rep. No. 106-254, supra, at 40.
\124\ The vote on this proposal, offered by Sen. Durbin at the
Committee's September 4 markup, was 8 in favor, 10 opposed.
---------------------------------------------------------------------------
The previous Administration, which like the current one
supported a victims' rights amendment, nevertheless expressed
concern that it might ``unduly disrupt the finality of
sentences'' by allowing victims to reopen completed criminal
cases to revisit the issue of restitution.\125\ In commenting
on the current proposal--which allows for even greater
interference with criminal prosecutions-Justice Department
officials have brushed aside such concerns, but made no attempt
to explain why they were unfounded.\126\ Thus, while the
Department professes to believe that ``the proposed amendment
should not be used as a tool to slow down criminal
proceedings,'' acknowledging that this ``would ultimately
benefit the criminal defendant,'' \127\ that is precisely what
S.J. Res. 1 threatens to do.
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\125\ Rights of Crime Victims Constitutional Amendment, Hearing on
H.J. Res. 64 before the Subcomm. on the Constitution of the House Comm.
on the Judiciary, 106th Cong., 2d Sess. 291 (Feb. 10, 2000) (statement
of Eleanor D. Acheson, Assistant Attorney General).
\126\ See, e.g., Hearing of Apr. 8, 2003 (response of Viet Dinh,
Assistant Attorney General, to follow-up question 8 by Sen. Leahy);
S.J. Res. 35, Proposing a Victims' Rights Amendment to the United
States Constitution, Hearing before the Subcomm. on the Constitution of
the Senate Comm. on the Judiciary, 107th Cong., 2d Sess. 48 (July 17,
2002) (response of John Gillis, Director, OVC, to follow-up question 15
by Sen. Leahy).
\127\ Id.
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The current language could cause any number of problems,
but three examples will suffice. First, by failing to stipulate
that a victim has no grounds to reopen a negotiated plea, S.J.
Res. 1 could substantially interfere with the prosecutor's
ability to secure convictions. As explained by the U.S.
Judicial Conference:
Permitting the challenge of a proposed plea interferes
with the prosecutor's ability to obtain convictions of
defendants whose successful prosecution may rest on the
cooperation of another defendant. Guilty pleas are
sometimes also negotiated because the prosecution
witnesses are, for various reasons, not as strong as
they appear to be on paper. Also, the sheer volume of
cases would generally overwhelm any prosecutor's office
and the courts unless the vast majority were settled.
Our federal judges concluded, ``The significance of this issue
should not be underestimated.'' \128\
---------------------------------------------------------------------------
\128\ Letter from Leonidas Ralph Mecham, Secretary, Judicial
Conference of the United States, to Sen. Hatch, Chairman, and Sen.
Leahy, Ranking Member, Senate Comm. on the Judiciary, Apr. 30, 2003.
---------------------------------------------------------------------------
Second, under S.J. Res. 1, if a criminal defendant is
sentenced without prior notice to the victim, his sentence
could potentially be vacated and remanded for a new sentencing
hearing. At a minimum, this re-sentencing would tax the
resources of the court, the prosecutor, the marshal or sheriff,
and possibly prison officials. At worst, if the court imposed a
more severe sentence, the defendant could allege a colorable
violation of the 5th amendment's double jeopardy clause.
Third, suppose that a judge, during the penalty phase of a
capital case, issues an ``adjudicative decision'' that,
according to the victim, did not ``duly consider the victim's
safety * * * and just and timely claims to restitution.'' Under
the previous version of the amendment, the proceeding could not
be stayed pending the victim's appeal of the decision; under
the current proposal, it probably could. Such a delay would at
a minimum complicate the sentencing process, and could possibly
undermine the prosecution's efforts to secure a death sentence.
Among other problems, the delay could result in the loss of
some of the jurors who decided the defendant's guilt, thereby
requiring the empanelment of a new sentencing jury.
The second part of the section 3 remedies clause
establishes a blanket prohibition on ``any claim for damages.''
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 the proposed
amendment does not itself authorize a claim for damages, nor
does it preclude such a claim if established under other
legislation. If so--if Congress could establish a statutory
damages remedy for violations of S.J. Res. 1--then section 3's
``no-damages'' clause is illusory, and promises States more
protection than it actually provides. More likely, however, is
that Congress could not establish such a remedy without
exceeding its section 4 enforcement authority.\129\
---------------------------------------------------------------------------
\129\ See City of Boerne v. Flores, 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Roger Pilon, director of the Cato Institute's Center for
Constitutional Studies, compared an earlier version of the
proposed amendment to the generous legacy in a pauper's will:
It promises much but delivers little.\130\ To the extent that
the remedies it permits undermine the criminal justice system,
it ill-serves the victims whose primary interest is to see that
offenders are convicted and punished. To the extent that it
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.
---------------------------------------------------------------------------
\130\ Hearing of Apr. 16, 1997, at 47.
---------------------------------------------------------------------------
6. The ``Restrictions'' Clauses Are Inflexible And Could Undermine Law
Enforcement
In addition to recognizing the need to limit the remedies
available for violations of the proposed new constitutional
rights, supporters of the amendment have consistently
acknowledged a pressing need to limit the rights themselves, so
that law enforcement and prison officials can continue doing
their jobs effectively. The last version of the proposed
amendment endorsed by the majority attempted to address this
concern by including language that would have allowed
``exceptions'' to the newly-established rights in certain very
limited circumstances.\131\ We expressed the concern then that
the permitted exceptions were too narrow and would undermine
law enforcement. The new version only makes matters worse:
Instead of allowing at least some exceptions, the current bill
explicitly states in section 1 that a victim's rights may never
be ``denied'' but may only be subject to very limited
``restrictions,'' the contours of which are only vaguely
identified in section 2.
---------------------------------------------------------------------------
\131\ S.J. Res. 3, 106th Cong., Sec. 3 (1999).
---------------------------------------------------------------------------
During the Committee markup of S.J. Res. 1, Senator
Feingold offered an amendment to clarify that victims'' rights
can, in certain circumstances, be ``denied'' as well as merely
``restricted.'' This change would have accommodated those
situations where a complete denial of a victim's rights may be
required in the interests of effective law enforcement or
public safety. The Committee rejected this amendment by a 7-to-
10 vote.
In light of this legislative history, as well as the
dictionary definitions of the relevant terms, courts are bound
to interpret the ability to allow ``restrictions'' of victims''
rights to mean something other than permission to ``deny'' or
carve out ``exceptions'' to those rights. As the majority
report (in part V) explains:
[In sections 1 and 2 of the amendment], an important
distinction between ``denying'' rights and
``restricting'' rights is established. As used here,
``denied'' means to ``refuse to grant;'' see Webster's
New Collegiate Dictionary 304 (1977). In other words,
it means to prohibit the exercise of the right
completely. The amendment, by its terms, prohibits such
a denial. At the same time, the language recognizes
that no constitutional right is absolute and therefore
permits ``restrictions'' on the rights, but only, as
provided in section 2, in three narrow circumstances.
As thus interpreted, the proposed amendment could pose enormous
difficulties for law enforcement in a variety of contexts.
In organized crime cases, for example, prosecutors may need
to secure cooperation agreements under which one gangster
agrees to plead guilty and then, upon release on bail,
surreptitiously gather information about others. Often, the
prospective cooperator has previously committed violent crimes
in which the victims are themselves criminals. The proposed
amendment would confer on such victims the right to
``reasonable and timely notice'' of the cooperator's guilty
plea, the same right with respect to the cooperator's bail
hearing, and the rights ``not to be excluded from'' and
``reasonably to be heard at'' both. Those rights could be
``restricted'' in certain circumstances, but not ``denied.''
For the law enforcement interest to be vindicated in this
context, the victims must receive no notice of the cooperator's
plea or release, at least until well after the fact. While
alerting the victims to these events would endanger the
cooperator and undermine his ability to assist law enforcement
by collecting evidence, it may be unavoidable under S.J. Res.
1. The prosecutor might argue that the court should for good
cause postpone the notice required by the amendment, but such
an argument would likely fail. Even if the delayed notice could
be considered ``reasonable,'' it could not be considered
``timely,'' which the amendment also requires.\132\ Moreover,
taking affirmative steps to delay notice would effectively
exclude the victim from the proceeding--that would be the
precise point of the delay--and would make it impossible for
the victim ``reasonably to be heard'' with respect to the plea
or the cooperator's release. And, as previously discussed (in
section (C)(1)), the problem is not easily avoided by closing
proceedings to the public (and so depriving victims of any
rights under the proposed amendment), given the vital first
amendment interest in open judicial proceedings. In short, the
victim's rights would plainly have been ``denied,'' in
violation of section 1.
---------------------------------------------------------------------------
\132\ As one pro-amendment witness told the Committee, `` `Timely'
notice would require that the victim be informed enough in advance of a
public proceeding to be able reasonably to organize his or her affairs
to attend.'' Hearing of Apr. 8, 2003 (statement of Steve Twist).
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None of this would be a problem if the amendment permitted
``denials'' of rights or ``exceptions,'' as the facts would
likely be held to implicate ``a substantial interest in public
safety or the administration of criminal justice.'' But S.J.
Res. 1 allows only ``restrictions'' that do not ``deny'' a
victim's rights--and the necessary restrictions would in most
cases do just that.
The ``restrictions'' language could also cause enormous
problems in mass victim cases. As a practical matter, courts
will sometimes be unable to allow every victim ``reasonably to
be heard'' at every bail, plea, and sentencing proceeding.\133\
The pragmatic approach generally adopted in suchcases is to
hear from a representative cross-section of victims. If the proposed
amendment permitted ``denials'' of, or ``exceptions'' to, victims' * *
* rights in appropriate circumstances, this pragmatic approach would
plainly be constitutional insofar as it is ``dictated by a substantial
interest in the administration of criminal justice.'' But such a
solution would not work under an amendment that permits
``restrictions'' but not ``denials'' or ``exceptions.'' A victim
excluded from the representative group in this scenario could plainly
show that her right reasonably to be heard had been ``denied,'' in
violation of section 1. The fact that others with similar interests had
been allowed to speak might fairly be considered an appropriate
``restriction'' on the collective interest of all victims in being
heard, but the proposed amendment creates rights for individual
victims, not a group.\134\
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\133\ Amendment proponents have suggested that, in mass victim
cases, the right to be heard may be protected by allowing victims to
submit written statements. But this may not be possible given the text
and history of S.J. Res. 1. In the previous version approved by the
Committee, victims had a right ``to be heard, if present, and to submit
a statement'' at certain proceedings. Courts could rule that the switch
to a right ``reasonably to be heard'' was intended to confer a absolute
right to make an oral statement, subject to appropriate limitations on,
for example, scheduling, duration of the live presentation, and subject
matter. A victim permitted only to submit a statement has not been
permitted ``reasonably to be heard''--she has not been ``heard'' at
all--and accordingly her right has been ``denied'' rather than merely
``restricted.''
\134\ It is clear from the language of S.J. Res. 1 that it grants
rights to individual victims, not to victims as a group. As one pro-
amendment witness told the Committee, ``The rights [conferred by S.J.
Res. 1] are individual, even as the rights of defendants are
individual.'' Hearing of Apr. 8, 2003 (response of Steve Twist to
follow-up question 4 by Sen. Leahy).
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In mass victim cases, the right to ``reasonable and timely
notice'' could also put a serious strain on judicial and law
enforcement resources, and divert attention from the effective
prosecution of the case. If the perpetrator of a horrific event
like the September 11 attacks is apprehended, must prosecution
be delayed until all victims can be identified and notified?
Does every victim have standing to challenge a plea or sentence
that was entered in violation of her notice and participatory
rights?
As discussed above (in section (E)(1)), one significant
problem with the proposed 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 (in part V) asserts without explanation that in
such cases, the restrictions clauses offer sufficient
flexibility to modify victims' rights provisions. It is not so
easy. While a court could reasonably decide that allowing a
batterer the full panoply of victims' rights would be abhorrent
to the administration of justice, it could only ``restrict''
and not ``deny'' these rights. As a result, it could be forced
to allow a batterer to use court proceedings to inflict new
trauma on the true victim.
Further, by allowing victims' rights to be restricted only
``when and to the degree dictated by a substantial interest in
public safety or the administration of criminal justice,''
section 2 fails to allow courts to consider an interest in the
administration of civil justice, however substantial. As
Senator Feingold explained during the Committee's September 4
markup of S.J. Res. 1, inclusion of the word ``criminal'' will
prevent courts from limiting a victim's rights, even when the
exercise of such rights would be terribly disruptive of a
proceeding in a habeas corpus or mass tort case involving the
crime.\135\ Surely, the civil justice system is no less worthy
of protection than the criminal justice system. Yet the
Committee inexplicably rejected Senator Feingold's proposal to
strike the word ``criminal'' from section 2.
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\135\ The majority (in part V) asserts without explanation that
``the administration of criminal justice exception covers habeas corpus
filings and proceedings.'' But the Supreme Court has consistently
recognized that habeas corpus proceedings are civil, not criminal, in
nature. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
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As disturbing as the current proposal's rigidity should be
to all of us who favor effective law enforcement, 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 of even greater
flexibility does not mean that we should try to rewrite it for
the 65th time. Rather, it proves yet again that a
constitutional amendment simply is not the right approach.
Finally, the restrictions clause in section 2 is also
problematic because it does not identify who may restrict the
victims' rights. Does the power to allow restrictions, 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
restrictions be crafted by State judges in individual cases?
This runs the risk that federal constitutional rights would,
for the first time, mean different things in different States.
These concerns are just a sampling of the possible problems
that will be confronted by law enforcement officers,
prosecutors, and judges as they grapple with the implementation
and enforcement of the provisions of the proposed amendment. As
the Federal Public Defenders aptly said of an earlier version,
``the proposed amendment is a litigator's dream and a victim's
nightmare.''\136\
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\136\ 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. 170 (Apr. 28, 1998).
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7. The Phrase ``Are Hereby Established'' Is Unnecessary and Does Not
Conform to Existing Constitutional Amendments
No rights in the Bill of Rights or other constitutional
amendments are ``established''; rather, they are simply
recognized. During Committee consideration of S.J. Res. 1,
Senator Feingold offered an amendment to conform the language
of S.J. Res. 1 to existing constitutional amendments by
striking the phrase ``are hereby established'' from section 1.
The Committee rejected this amendment by a 7-to-10 vote.
In drafting an amendment to the United States Constitution,
we must be especially deliberative and careful. The operative
language of the proposed amendment should be consistent with
language that protects other individual rights in the
Constitution.
For example, the fourth amendment states, ``The right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.'' The fourthamendment does not say that these
rights are ``established.'' The fifth amendment provides that ``No
person shall be * * * deprived of life, liberty, or property, without
due process of law.'' Again, like the fourth amendment, the fifth
amendment's due process and other rights and protections are not
``established'' by the amendment.
It has been argued that the phrase ``are hereby
established'' is necessary because the rights of victims were
not protected by the original Bill of Rights, so we need to
call more attention to them in this constitutional amendment.
But the adoption of a constitutional amendment is a very
significant event--it does not need to be underscored by
textual surplusage. Beyond that, it is not how we have
proceeded in the past. Women were not given the right to vote
in the original Constitution, yet the 19th amendment did not
``establish'' the right to vote for women, it simply stated:
``The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any state on
account of sex.''
If the current version of the victims' rights amendment
were enacted and ratified, it could be interpreted to undermine
other constitutional rights long recognized, even though these
rights are not described as ``established'' by the
Constitution. This may be unlikely, but we see no reason to
permit such an interpretation by including the words ``are
hereby established.'' They serve no real purpose, and they are
inconsistent with the way that amendments to our great
governing document have been drafted in the past.
8. The Definitional Failures of S.J. Res. 1 Cannot Be Cured Through
Enforcement Clause Legislation
We have discussed several ways in which the proposed
constitutional amendment is vague and subject to competing
interpretations, and there are others. It has been suggested
that the answer lies in section 4, which provides that
``Congress shall have the power to enforce by appropriate
legislation the provisions of this article.'' For example, one
of the lead sponsors of S.J. Res. 1 said at this year's
hearing, ``It was our intention that questions such as
definitions of who are victims, what kind of notice is required
and by whom, and * * * the definition of violent crime, could
well be dealt with by appropriate congressional legislation
[enacted under section 4].'' \137\ But this use of the section
4 enforcement power may not be possible given well-established
constitutional precedent.
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\137\ Transcript of Hearing of Apr. 8, 2003, at 46-47 (Sen. Kyl).
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As witnesses on both sides of the constitutional debate
agreed, ``the power to enforce is not the power to define.''
\138\ In recent years, the Supreme Court has issued a series of
decisions interpreting the enforcement clause of the 14th
amendment, upon which section 4 of the proposed amendment is
modeled. Those cases state that Congress may not, under the
guise of ``enforcing'' a constitutional amendment, either
diminish the rights of the persons it was designed to protect
or impose substantive new restrictions on State governments.
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\138\ Hearing of Apr. 8, 2003 (statement of Steve Twist); id.
(response of James Orenstein to follow-up question 6 by Sen. Leahy).
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Thus, in the leading case of City of Boerne v. Flores,\139\
the Court struck down a federal statute that purported to
redefine the scope of the 1st amendment right to the free
exercise of religion (which is incorporated in the fundamental
concept of liberty embodied in the 14th amendment's due process
clause). In so doing, the Court explained the difference
between measures that remedy or prevent unconstitutional
actions, and measures that make a substantive change in the
governing law:
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\139\ 521 U.S. 507 (1997).
Congress' power under Sec. 5 [of the Fourteenth
Amendment] * * * extends only to ``enforcing'' the
provisions of the Fourteenth Amendment. * * * The
design of the Amendment and the text of Sec. 5 are
inconsistent with the suggestion that Congress has the
power to decree the substance of the Fourteenth
Amendment's restrictions on the States. Legislation
which alters the meaning of the Free Exercise Clause
cannot be said to be enforcing the Clause. Congress
does not enforce a constitutional right by changing
what the right is. It has been given the power ``to
enforce,'' not the power to determine what constitutes
a constitutional violation.\140\
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\140\ Id. at 519 (emphasis added).
Post-Boerne case law has further clarified the limits of
Congress enforcement power. Just this Term, for example, that
Court confirmed that ``it falls to this Court, not Congress, to
define the substance of constitutional guarantees.'' \141\
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\141\ Nevada Dept. of Human Resources v. Hibbs, 123 S. Ct. 1972,
1977 (2003). See also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88
(2000) (assessing the constitutionality of enforcement clause
legislation requires court to determine whether statute ``is in fact *
* * an appropriate remedy or, instead, merely an attempt to
substantively redefine the States' legal obligations''); Fla. Prepaid
Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627,
637-648 (1999) (invalidating Patent Remedy Act because historical
record and scope of the Act's coverage demonstrated that it was not
merely remedial or prophylactic, but changed States' substantive
obligations); Saenz v. Roe, 526 U.S. 489, 508 (1999) (``Congress' power
under Sec. 5, however, `is limited to adopting measures to enforce the
guarantees of the Amendment; Sec. 5 grants Congress no power to
restrict, abrogate, or dilute these guarantees.' '') (quoting
Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966)).
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Given this case law, any attempt by Congress to define the
proposed amendment's key terms could well be held invalid. Such
legislation would necessarily either restrict the rights of
some persons who might otherwise be considered victims of
violent crimes, or expand the substantive obligations of States
whose laws would otherwise exclude certain persons from the
protected class of victims. Either way, it would exceed
Congress' enforcement power under section 4.
Despite the need for something other than an enforcement
provision, this version of the proposed amendment, unlike
earlier versions, contains nothing else that could be construed
as granting Congress, or even individual States, the power to
define key terms.\142\ As a result, key termsare likely to be
defined piecemeal by individual judges interpreting the new
constitutional language, compounding the problem of a ``patchwork'' of
victims' rights, and making the amendment the vaguest, blankest check
that has ever been written to the judiciary.
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\142\ Compare S.J. Res. 44, 105th Cong., Sec. 3 (1998) (``The
Congress and the States shall have the power to implement and enforce
this article. * * * ''); S.J. Res. 3, 106th Cong., Sec. 1 (1999) (``A
victim of a crime of violence, as these terms may be defined by law. *
* * ''). For a detailed account of the relevant legislative history,
see Hearing of Apr. 8, 2003 (response of James Orenstein to follow-up
question 6 by Sen. Leahy).
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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 administration of justice; 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 Kohl.
Russ Feingold.
Charles E. Schumer.
Richard J. Durbin.
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. 1.