SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCPROPOSALS TO PROVIDE RIGHTS TO VICTIMS OF CRIME
WEDNESDAY, JUNE 25 1997
House of Representatives,
Committee on the Judiciary,
The committee met, pursuant to notice, at 9:39 a.m., in room, 2141, Rayburn House Office Building, Hon. Henry J. Hyde (chairman of the committee) presiding.
Present: Representatives Henry J. Hyde, James F. Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Bob Goodlatte, Ed Bryant, Steve Chabot, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A. Pease, John Conyers, Jr., Robert C. Scott, Zoe Lofgren, Sheila Jackson Lee, Martin T. Meehan, William D. Delahunt, and Robert Wexler.
Also present: Thomas E. Mooney, chief of staff/general counsel; Joseph Gibson, counsel; Daniel Freeman, counsel/parliamentarian; and John Flannery, minority counsel.
OPENING STATEMENT OF CHAIRMAN HYDE
Mr. HYDE. The committee will come to order. Good morning.
The reason for the light membership here is, unfortunately, the Republicans have called a conference for all members, and you have a choice of being a good Republican or being a good member of the Judiciary Committee. I chose the Judiciary Committee. But I am a cult of one.
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In any event, we do have enough to proceed with a hearing. And so this morning we are going to consider two proposals to provide rights for victims of crime. One is a constitutional amendment, H.J. Res. 71; and the other is a corresponding implementing statute, H.R. 1322.
[The bills, H.J. Res. 7 and H.R. 1322, follow:]
INSERT OFFSET RING FOLIOS 1 TO 15 HERE
Mr. HYDE. Violent criminals damage and destroy the lives of innocent victims every day. When law enforcement officials accuse people of committing violent crimes, those individuals have a wide array of legal rights, many of which are constitutionally guaranteed. They include the right to be free from unreasonable searches and seizures; the right to a grand jury indictment; the right to be free from double jeopardy; the right against self-incrimination; the right to due process; the right to a speedy and public trial; the right to an impartial jury; the right to be tried in the district where the crime occurred; the right to be informed of the charges; the right to confront the witnesses against the accused; the right to compel witnesses for the accused; the right to counsel, at public expense if necessary; the right to reasonable bail; and the right against cruel and unusual punishments.
Are these rights necessary and important? Of course, they are. We fought a revolutionary war to establish them. Those rights protect accused persons against unjust convictions and allow them to present their side of the story.
Page 3 PREV PAGE TOP OF DOC But what about the victims? Do they have any rights? Well, they don't have any that are protected by the Federal Constitution. Unfortunately, the criminal justice system can overlook the legitimate concerns of crime victims. Constitutional rights for accused persons exist primarily not to protect the guilty but to protect the innocent person who is falsely accused. Crime victims are innocents dragged into the criminal justice system against their will, just like the falsely accused. They deserve constitutional protections, just as the falsely accused do.
For that reason, I believe we should provide specific defined rights under the Federal Constitution for crime victims. I have worked with Senator Kyl and Senator Feinstein at great lengthand I do mean at great lengthover the last year to refine the language of the proposed constitutional amendment. I believe both versions of the amendment that we have introduced this year are vast improvements over the versions from last year.
In addition, I am encouraged by our continuing efforts to come to one version of the amendment. I think we are pretty close, and I am hopeful we will come to agreement in the near future.
Before recognizing anyone else for a statement, I do request that because of the large number of witnesses we have today, other Members who may have statements either put them in the record or give them during their question time.
Because our congressional panel Members have other time commitments, I request that Members refrain from questioning the congressional panel, which consists of Congresswoman Deborah Pryce at the moment.
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Finally, I want to note that this is a hearing about H.J. Res. 71 and H.R. 1322. Some Members may be tempted to ask questions about other topics, and they should be aware that the chair is prepared to enforce the requirement that questions be pertinent to the subject matter at hand.
And with that, I recognize Ms. Lofgren.
Do you have an opening statement?
Ms. LOFGREN. I will be happy to do what the chairman suggests.
Mr. HYDE. Very well. Thank you.
And Mr. Delahunt, do you have an opening statement?
Mr. DELAHUNT. I will defer to the chairman.
Mr. HYDE. Thank you.
Mr. Gekas, do you have an opening statement.
Mr. GEKAS. What were the guidelines?
Mr. HYDE. The guidelines are that anybody named Gekas does not have time to make an opening statement.
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Mr. GEKAS. I will try to find someone.
Mr. HYDE. A surrogate Gekas.
Mr. GEKAS. I will await the question and answer period to assert my claims to this committee. Thank you.
Mr. HYDE. Thank you very much, Mr. Gekas.
Our first panel was supposed to consist of three distinguished Members of Congress. Unfortunately, Senator Kyl and Senator Feinstein are detained by votes on the Senate floor, and they can't be with us at this time. They may appear later in the day.
Notwithstanding that, we are delighted to have Congresswoman Deborah Pryce, who represents the 15th District of Ohio. She is an original cosponsor of my proposed amendment. She is a longtime advocate of victims' rights, dating back to when she was a municipal court judge.
We welcome you, Congresswoman Pryce, and very much appreciate your taking time to be with us today, and we look forward to your statement.
STATEMENT OF HON. DEBORAH PRYCE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
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Ms. PRYCE. Thank you very much, Mr. Chairman and members of the committee. It is a great opportunity to be able to testify before you today.
After years of elevating the rights and the needs of criminals, the American public is beginning to recognize that crime victims have very real needs as well. Their voices are being given a meaningful role in the public policy process, helping them turn their personal anguish into positive action. Despite this progress, victims' rights are still often overlooked and additional reforms are needed to bring some balance into an often one-sided process.
I come before you today with a unique perspective with having been a prosecutor, a judge, a victims' rights advocate, and now a legislator. I am the first to say that the Constitution is a brilliant and thoughtful document. Amending it is not a matter to be taken lightly.
Later today you will hear from several opponents of a victims' rights constitutional amendment. And with all due respect to their views, I know from experience that an obvious discrepancy exists in the Constitution that can no longer be overlooked. If we rely on Federal statute, the rights of only 2 percent of crime victims will be affected. The other 98 percent would see no benefit to this approach, and, in my opinion, that is unacceptable. Fifteen clearly defined provisions protect the rights of the accused. However, there is not one word in our Constitution that addresses the rights of victims of crime.
A victims' rights constitutional amendment will change that and give victims the right to be informed, present, and heard at critical stages throughout their ordeal. Victims suffer enough at the hands of criminals. They should not have to suffer at the hands of our justice system as well.
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We, as a nation, are recognizing the importance of establishing and protecting the rights of crime victims. In my experience as a judge and a prosecutor in Columbus, OH, I did my best to help victims be a part of the process in all the courtroom proceedings, but I found that the system worked against them. The deck is stacked in favor of the accused, and until we enact a constitutional amendment, a defendant's constitutional rights will always trump a victim's statutory rights.
Defendants or criminals have had their rights guaranteed since 1789, when the U.S. Constitution was written, and, as I said before, there is still not one word in our Constitution on behalf of the victims of crime.
Doesn't the other face of crime, the face of the victim, deserve to have some rights? The Framers of the Constitution allowed for the discussion of amendments for the reason of the most compelling State and national and public interest. The rights of the victims of crime fit into all of these categories. The time is now to balance the scales of justice and make victims' rights an integral, meaningful part of our judicial criminal system.
Tragically, 40 million people fall victim to crime every year in the United States. That is more people than were inhabitants of the 13 Colonies when the Constitution was ratified. In too many courts in America, victims of crime are excluded from public proceedings and not given the opportunity to testify. Many times, a victim's safety is not considered and often put in jeopardy upon an offender's parole or release on bail.
Over half of the States in the Union29, to be exacthave enacted amendments to their own State constitutions for crime victims' rights, and many, many more have statutes designed to protect crime victims.
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Unfortunately, there is no uniformity to crime victims' rights between the States. Just as no one would argue that the basic rights of the accused should not shift from State to State, the rights of a victim should not be so arbitrary as to depend upon which side of the State line the crime happened to occur. Only an amendment to the U.S. Constitution can guarantee victims equal rights and equal protection under the law, regardless of the State in which the crime occurred.
I believe embodied in the proposed victims' rights constitutional amendment, H.J. Res. 71, and the Senate version, S.J. Res. 6, are the core principals we believe crime victims should have. And although legislation cannot erase victims' suffering, it is an important step toward giving more equality toward victims of crime, for we must always remember that when we speak of crime, we aren't speaking of statistics or anonymous news stories but of real, caring, feeling people whose lives will never ever again be the same, of people whose voices have been drowned out for far too long by the clamor for defendants' rights.
The victims of crime in America do not ask for our pity or our sympathy, they simply ask to be treated with the respect and compassion their circumstances deserve. They seek safety, dignity, and justice, and these basic rights should be guaranteed by our Constitution.
Again, I thank the committee for affording this opportunity to testify on this most important issue, and I appreciate the attention you are giving it.
[The prepared statement of Ms. Pryce follows:]
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PREPARED STATEMENT OF HON. DEBORAH PRYCE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Thank you, Mr. Chairman and Members of the Committee, for the opportunity to testify today.
After years of elevating the rights and the needs of criminals, the American public is beginning to recognize that crime victims have very real needs as well. Despite this progress, victims' rights are still often overlooked.
I come before you today with the unique perspective of having been a prosecutor, a judge, a victims' advocate, and now a legislator. I am the first to say that the Constitution is a brilliant and thoughtful document. Amending it is not a matter to be taken lightly. I also know from experience that an obvious discrepancy exists in the Constitution that no longer can be overlooked. Fifteen clearly-defined provisions protect the rights of the accused. However, there is not one word in the Constitution that addresses the rights of victims of crime. A Victims' Rights Constitutional Amendment will change that, and give victims the right to be informed, present, and heard at critical stages throughout their ordeal. Victims suffer enough at the hands of criminals, they should not have to suffer at the hands of our justice system as well.
That is why I commend Chairman Henry Hyde for his leadership on this important issue and I strongly support his proposed Victims' Rights Constitutional AmendmentH.J. Res. 71. I believe it is important to note that we, as a nation, are recognizing the importance of establishing and protecting the rights of crime victims. In my experience Asia judge and prosecutor in Columbus, Ohio, I did my best to help victims be a part of courtroom proceedings, but I found the system works against them. I believe embodied in the proposed Victims' Rights Constitutional Amendment (H.J. Res. 71) are the core principles that we believe crime victims should have.
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Let me stress three things:
1. The time is now. Defendantscriminalshave had their rights guaranteed since 1789, when the United States Constitution was written. There is not one word in the Constitution on behalf of victims of crime. How many more women's pleas to be notified of their offender's release do we want to ignore? The time is now to balance the scales of justice and make victims' rights an integral part of our criminal justice process.
2. Victims' rights should be meaningful. Tragically, 40 million people fall victim to crime every year in the United States. That is more than were inhabitants of the thirteen colonies when the Constitution was ratified. In too many courts in America, victims of crimes are excluded from public proceedings and not given the opportunity to testify. Many times a victim's safety is not considered and put in jeopardy upon an offender's parole or release on bail.
3. Victims' rights should be enforceable. Over half of the states in the Union, 29 to be exact, have enacted amendments to their state constitutions for crime victims' rights, and many more have statues designed to protect crime Victims. Unfortunately, there is no uniformity of crime victims' rights between the states. Just as no one would argue that the basic rights of the accused should shift from state to state, the rights of victims should not be so arbitrary as to depend on which side of the state line the crime happened to occur. Only an amendment to the U.S. Constitution can guarantee victims equal rights and equal protection under the law regardless of the state in which the crime occurred.
Page 11 PREV PAGE TOP OF DOC Although legislation cannot erase victims' suffering, it is an important step to give some equality to victims of crime. For we must always remember that when we speak of crime, we aren't speaking of statistics or anonymous news stories, but of real caring, feeling people whose lives will never again be the same of people whose voices have been drowned out for far too long by the clamor for defendants' rights.
Who would argue that the Oklahoma City bombing victims should not be present at every important court proceeding?
Who would argue that a rape victim should not have the right to be told of an offender's release or escape?
Who would argue that a victim of domestic violence should not have the right to have their safety considered in determining a criminal's release from custody on bail?
I would hope that the answer to these questions is ''no one.'' Unfortunately, that's not the case. These are the very rights H.J. Res. 71 seeks to ensure.
The victims of crime in America do not ask for our pity or our sympathy. They simply ask to be treated with the respect and compassion their circumstances deceive. They seek safety. They seek protection. They seek Justice.
Again, I thank the Committee for affording me the opportunity to testify on this important issue.
Page 12 PREV PAGE TOP OF DOC Mr. HYDE. Well, thank you very much, Congresswoman Pryce. We deeply appreciate your contribution. And we will forbear from asking questions of congressional witnesses, so you can get about your other important duties. And we thank you so much.
Ms. PRYCE. Thank you, sir.
Mr. HYDE. Thanks.
Our next panel consists of one witness, the Attorney General of the United States, Janet Reno. Attorney General Reno is a graduate of Cornell University and Harvard Law School. After a number of years in private practice, she became the State's attorney for the Eleventh Judicial Circuit in Florida in 1978. She served in that post until 1993, when she became Attorney General of the United States. Thus, in addition to bringing us the administration's position, Attorney General Reno can offer a unique perspective on this debate, having been both a State and Federal prosecutor.
Madam Attorney General, we welcome you and look forward to your testimony.
Ms. RENO. Mr. Chairman, thank you.
Mr. HYDE. Madam Attorney General, if you would forbear for a second, Mr. Conyers is here.
And would you like to make an opening statement?
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Mr. CONYERS. No, sir, but I would like to put my written statement in the record. I would like to welcome the Attorney General, and explain that we only have a few Democrats here because we are caucusing to see what happens at the Republican Caucus. And if what we think happens there, we might be referring to Speaker Hyde instead of Chairman Hyde.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Conyers, follows:]
PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I come into this hearing with great sympathyand great supportfor the victims of crime. I can think of no category of individuals in our criminal justice system more deserving of special attention and protection. For they are victimized not just by the acts of violence, but are then victimized again, a second time, by an uncaring and insensitive criminal justice system. And I am here today to pledge my strongest support for doing everything that I can to help this tragic plight.
And make no mistake about it. Democrats and Republicans are in agreement about this. The 1994 Crime Bill, under the leadership of this Committee and President Clinton, contained critical statutory provisions for victimsprovisions dealing with compensation, notification, victim participation and the like.
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The victims rights contained in the proposed Constitutional Amendment today are very important. They include 1) Victims' rights to presence in the court room; 2) Victims' rights to participation in the various stages of the criminal justice process, 3) Victims' rights to notification of parole, early release, or escape, 4) Victims' rights compensation, 5) Victims' rights to have their safety taken into account, 6) Victims rights to timely resolution of the matter, and 7) notice to Victims what their rights are.
I agree with every one of these rights, and I believe that Congress should do everything it can to enshrine them in law. The fundamental question before us today, however, is should we reflexively and emotionally respond to this desire to help victims by amending the nation's founding charter. A number of questions should be examined first.
First, I have studied the case law on each of these rights. I cannot come up with a single Supreme Court precedent that holds any of these rights are impeded by current constitutional precedent or doctrine. In other words, no statute conferring these rights would appear vulnerable to Constitutional challenge. Why then the need for a Constitutional Amendment?
Second, the argument that might then be made in response to the first question is that this amendment is needed because the states either don't have the money or the political will to conform their criminal justice system with these principles. That to me is not a compelling standard that ought be used in deciding whether to amend our most precious guiding document.
Page 15 PREV PAGE TOP OF DOC Third, we have to ensure that any constitutional amendment that is passed will do more good than harm. Mandating that victims have the right to participate in and possibly block plea agreements could result in a significant increase in a prosecutor's workload and make it far more difficult to use pleas to go after more dangerous criminals. And I'm also concerned that the new ''speedy trial'' provisions could force a prosecutor to go to court before he or she is fully prepared, and could operate as a new limitation on the accused's right to habeas corpus review. We already have very clear statutory guidance on these matters, so creating entirely new constitutional issues could merely cloud the issues.
Fourth, is it possible to develop an intelligent scheme for enforcing this broad new set of rights? Allowing victims to seek monetary damages against states which fail to honor the new rights could financially hamstring many jurisdictions. But if monetary damages are barred we risk creating a right with little meaningful remedy.
And fifth and most seriously, can we be sure that adopting these new constitutional rights will not result in a paring back of our citizens' fair trial rights under the fifth and sixth amendments? Once we enter down the path of encouraging the courts to ''balance'' a defendant's due process rights against other legal interests, we increase the risk of unfair and improper convictions. The last thing I as a legislator want to be responsible for is supporting a proposal which results in the partial repeal of the bill of rights.
So I am opposed to this Constitutional Amendment. However, as an alternative I am open to considering whether it is appropriate to introduce legislation that can immediatelythat is without the delay entailed in ratification of an amendmentestablish a federal baseline of victims rights, without altering our constitutional framework.
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Thank you for bringing this issue before the Committee's attention, Mr. Chairman, and I am looking forward to today's testimony.
Mr. HYDE. Actually, Mr. Conyers and I exchanged notes but they are encrypted; right?
I am sorry, Madam Attorney General. Please proceed.
STATEMENT OF JANET RENO, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Ms. RENO. Mr. Chairman, Mr. Conyers, Congressmen, I know that you and each member of this committee share with the President and with me a very deep and abiding respect for the Constitution. That profound document, I think, reflects the true genius of this Nation's Founders. Particularly in these last 4 years, I have had occasion to marvel at them every time I have had to deal with that wonderful document. It has an enduring vitality over these last 200 years that is a true testimony to their genius.
This administration does not lightly endorse any effort to amend the Constitution. In fact, we recognize that, as is the case with any treasure of enduring value, this Nation should proceed only with the greatest caution to alter its fundamental charter. But it is also important to recognize, however, that in their genius, these same Founders also anticipated that for a nation to survive and to prosper, it must reserve the opportunity to alter its fundamental charter through a well ordered process.
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Article 5 of the Constitution provides just such a process. That process has been used successfully but sparingly throughout our Nation's history. This administration believes that the guarantee of rights for the victims of crime requires that we employ that process once again.
During my work on this issue, I have been struck by your leadership, Mr. Chairman, and others who have demonstrated support for victims' rights, by your introduction of a resolution proposing language for a victims' rights amendment. And in so many other ways, including countless hours of hard work and consultation, your commitment has been truly inspirational to those of us who have a vision of a justice system which accords crime victims the respect they deserve. I urge other members of this committee to join with you in this important effort.
The President and I have also had a longstanding interest in and commitment to safeguarding and bolstering the rights of victims of crime. The President's involvement in this area dates back to his days as Attorney General for the State of Arkansas, and he has remained steadfast in that interest since.
While serving as a State attorney in Dade County, FL, for 15 years, I had the opportunity to learn how importanthow criticalit is to give crime victims the opportunity to be heard. I know that we can afford victims the dignity and the respect they deserve without breaching the constitutional protections our system guarantees to those who stand in criminal jeopardy. During my time in Dade County, I also supported a victims' rights amendment to the State constitution, and I was there as it was implemented.
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Based 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. We have come to that conclusion for a number of important reasons that I outline more fully in my written testimony, but let me touch on them briefly here.
First, unless the Constitution is amended to ensure basic rights to crime victims, we will never correct the existing imbalance in this country between defendants' constitutional rights and the current haphazard patchwork of victims' rights.
While a person arrested or convicted for a crime anywhere in the United States knows that he is guaranteed certain basic minimum protection under our Nation's most fundamental law, the victim of that crime has no guarantee of rights beyond those that happen to be provided and enforced in the particular jurisdiction where the crime occurred.
Second, 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 20 years, and many States have responded with State statute 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 or comprehensive or authoritative to safeguard victims' rights. Rather, instead of forming a minimum base line of protections, the State protections have produced a hodgepodge of rights that vary from jurisdiction to jurisdiction.
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Third, the victims' rights amendment that the President and I envision will do no more than to secure for crime victims the same types of rights that are secured for others elsewhere in the Constitution. The rights we believe should be protected by a constitutional amendment primarily are intended to guarantee crime victims the opportunity to participate in proceedings related to the crimes committed against them.
Fourth, the 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 tryingstrivingto treat them with respect and to recognize their central place in any prosecution.
As we go forward with the process of developing the text of that amendment, however, I want to encourage you to keep several principles in mind.
First, the amendment should clearly and unambiguously set out what specific rights it is expanding to victims of crime. The President supports an amendment that provides the right of victims to be told about public court proceedings and not to be excluded from them, to make a statement to the court, if present, about bail, about sentencing, and about accepting a negotiated plea, to be told about parole hearings and to attend and to speak if present, to notice when the defendant or convict escapes or is released, to appropriate restitution from the defendant, to reasonable conditions of confinement and release to protect the victim from the defendant, and to notice of these rights.
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Second, the amendment must be carefully crafted to ensure it does not unintentionally hamper the ability of criminal investigators and prosecutors to do their jobs. We should never lose sight of the fact that the very best way that those of us in the criminal justice system can serve victims of crime is to bring those responsible for crime to justice.
Third, an amendment protecting the rights of victims should not deprive those accused of crimes of their rights. We can have a criminal justice system that protects the victims of crime as well as ensures those accused of such crimes the right to a fair trial. We cannot accept less.
One of the real challenges we face is to craft a victims' rights amendment that protects the rights of victims without eroding defendants' rights. We believe this particular goal can be achieved most effectively if the amendment includes express language to that effect.
I do not mean to suggest that defendants will always prevail if they challenge the victims' rights to participate in the process. On the contrary, I believe that the two sets of rights can coexist. However, on those rare occasions where, after a serious and searching analysis of the claim, it is clear that the vindication of a victim's rights will indeed violate a defendant's right to a fair trial, we must, as a society, ensure that that fair trial is not jeopardized. This approach strikes the balance the administration is seeking to achieve, and we look forward to working with you to craft language that produces this result.
Finally, all of this must be done in the context of the Constitution. We are not writing a statute to add to the United States Code that can go on for many pages and resolve every question of application. Every word in an amendment takes on great significance. In our work together, we must choose the words for this amendment with great care.
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In short, the administration supports an amendment that will bring balance to the criminal justice system. We are committed to continuing to work with Congress, with State and local prosecutors, with Federal and State judges, victims and victims groups, and others involved in the criminal justice system as we develop an amendment that gives real rights to victims and preserves the protections accorded to the accused.
Such an amendment must be flexible enough to permit judges, prosecutors, and other justice system actors to deal appropriately and effectively with the variety of difficult circumstances that arise in the course of a criminal case.
As a final but certainly important note, I want to address two things that the administration is doing to make sure that the Federal system is keeping its commitment to victims of crime.
Last year, the President directed that the Department of Justice take the lead on a number of fronts concerning victims' rights. The Department has been hard at work to improve how we deal with victims in our own law enforcement efforts.
Secondly, the administration has transmitted to the Congress a compact and targeted legislative package that will, among other things, protect victims when exercising their rights as victims against adverse action by employers for absences due to participation in criminal proceedings; establish and operate an automated victim information and notification system to cost-effectively and efficiently implement Federal victims' rights to notice and information; authorize pretrial detention of Federal offenders who seriously threaten victims, regardless of the nature of the pending charge; and fully implement victims' rights to restitution and compensation.
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We look forward to working with you on this legislation in the coming weeks. I also look forward to working with you and your staff to address the important issues related to a victims' rights constitutional amendment. I hope that we can achieve this balance that is so important in this area, and I am pleased to answer any questions that you may have.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Reno follows:]
PREPARED STATEMENT OF JANET RENO, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Good Morning. I appreciate the opportunity to appear before this Committee to express this Administration's views regarding an amendment to the United States Constitution to guarantee rights for the victims of crime.
Mr. Chairman, I know that you and each member of this Committee share with the President and me a deep and abiding respect for the Constitution. That profound document reflects the true genius of this nation's Founders, and its enduring vitality over the last 200 years is a testament to that genius. This Administration does not lightly endorse any effort to amend the Constitution. In fact, we recognize that, as is the case with any treasure of enduring value, this Nation should proceed only with the greatest caution to alter its fundamental charter.
It is also important to recognize, however, that in their genius, those same Founders also anticipated that for a nation to survive and prosper, it must reserve the opportunity to alter its fundamental charter through a well-ordered process. Article V of the Constitution provides such a process. That process has been used successfully, but sparingly, throughout our nation's history. This Administration believes that the guarantee of rights for the victims of crime requires that we employ that process once again.
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A constitutional amendment provides the best means to protect the rights of crime victims. I am here today to explain why. I also would like to describe the progress that has already been made to achieve this goal, as well as the issues that remain unresolved.
THE RATIONALE FOR A CONSTITUTIONAL AMENDMENT
As the President said on June 25 of last year, in announcing his support for a constitutional amendment to protect the rights of crime victims:
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.
The President and I have longstanding interests in and commitments to safeguarding and bolstering the rights of victims of crime. The President's involvement in this area dates back to his days as Attorney General for the State of Arkansas, and he has remained steadfast since then. I, too, have long been an advocate of treating victims with the respect and dignity they deserve. While serving as State Attorney in Dade County, Florida, I had the opportunity to learn how important it is to give crime victims an opportunity to be heard. I also learned that we can accord victims dignity and respect without breaching the constitutional protections our system guarantees those who stand in criminal jeopardy. During my time in Dade County, I also supported a victims rights amendment to the Florida Constitution.
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Based 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 Constitution to protect victims' rights is warranted. We have come to that conclusion for a number of important reasons.
First, unless the Constitution is amended to ensure basic rights to crime victims, we will never correct the existing imbalance in this country between defendants' constitutional rights and the current haphazard patchwork of victims' rights. While a person arrested or convicted for a crime anywhere in the United States knows that he is guaranteed certain basic minimum protection under our nation's most fundamental law, the victim of that crime has no guarantee of rights beyond those that happen to be provided and enforced in the particular jurisdiction where the crime occurred.
A victims rights amendment would ensure that courts will give weight to the interests of victims. When confronted with the need to reconcile the constitutional rights of a defendant with the statutory rights of a victim, many courts often find it easiest simply to ignore the legitimate interests of the victim. A constitutional amendment would require courts to engage in a careful and conscientious analysis to determine whether a particular victim's participation would adversely affect the defendant's rights. The result will be a more sophisticated and responsive criminal justice system that both protects the rights of the accused and the interests of victims.
Second, 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. Rather than form a minimum baseline of protections, the state provisions have produced a hodgepodge of rights that vary from jurisdiction to jurisdiction.
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In addition, state efforts often have not been able to protect crime victims from feeling re-victimized by a criminal justice system that is at times insensitive to their needs. In one case, for example, the victim notified the court that she wished to provide a victim-impact statement in open court, as was her right under the state's constitutional amendment. The judge denied her request because he said he had a ''busy docket.'' Similar instances of mistreatment of victims by the system have occurred across the country.
Rights that are guaranteed by the federal Constitution receive greater recognition and respect. If a victims' rights amendment is adopted, a permanent, uniform baseline of rights for crime victims will be in force in each and every state.
Third, the victims rights amendment that the President and I envision will do no more than secure for crime victims the same type of rights that are secured for others elsewhere in the Constitution. The rights that we believe should be protected by a constitutional amendment primarily are intended to guarantee crime victims the opportunity to participate in proceedings related to the crimes committed against them.
By protecting the rights of free speech, free press, peaceable assembly and petition for redress of grievances, the First Amendment guarantees all Americans the opportunity to participate in our country's political and social discourse. The most basic participatory right in democracythe right to votehas been the subject of four constitutional amendments, which have guaranteed that right to adult citizens regardless of race, gender, financial means or age.
Page 26 PREV PAGE TOP OF DOC In the criminal justice context, all affected individuals, except for the victims of crime, are afforded some basic constitutional rights. The defendants have the right to be informed of the accusation against them, the right to be represented by counsel, and the right to confront those witnesses who testify against them. The Constitution provides the community affected by a crime both access to public court proceedings and the opportunity to participate as jurors in criminal trials. Ironically it is those most directly affected by a crimethe victimswho have no guaranteed constitutional rights.
Fourth, the 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 the 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.
Several of the rights we would guarantee in such an amendment would provide law enforcement with additional benefits on top of the benefit of victims' increased resolve to participate in the process. If victims are notified of public proceedings and allowed to attend, they will be able to alert prosecutors to distortions of fact in defendants' and defense witnesses' testimony. Allowing victims to be heard during critical phases of the trial will increase the likelihood that courts will engage in better decision-making. Victim testimony can provide courts with additional relevant information and impress upon them that an actual human being has suffered as a result of the defendant's conduct. Having had an opportunity to be heard, victims likely will be better able to accept a court's decision, whatever it may be. Notice of release of the defendant or offender will enable victims to take precautions that may prevent the commission of more crime. By holding offenders financially responsible through restitution for the harm they caused, they will be more clearly required to acknowledge and accept responsibility for that harm.
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Having made a commitment to seeing a constitutional amendment adopted, this Administration has been hard at work to deal with the range of important issues that must be addressed in moving forward to put such an amendment in place.
Last spring, Chairman Hyde introduced a resolution proposing language for a victims' rights amendment here in the House. Senators Kyl and Feinstein also introduced proposals in the Senate. In that way, and in so many other ways, Chairman Hyde, along with Senators Kyl and Feinstein, have demonstrated truly impressive leadership on this issue. Your commitment has served as a beacon for those in this nation who have a vision of a justice system which accords crime victims the respect they deserve. I hope other members of this Committee will join with the Chairman in this important effort.
In announcing his support for the amendment, the President stated that the amendment should guarantee certain basic rights for victims: the right to notice of public court proceedings and to attend them; the right to be heard; similar rights relating to parole hearings; the right to notice of release or escape; the right to an order of restitution; the right to protection from the defendant; and the right to notice of these rights.
The President made clear that the amendment should be drafted with great caution to ensure that it does not impede legitimate law enforcement functions or work inadvertently to provide defendants and convicted offenders with tools or arguments that could impair the criminal justice process. We must never lose sight of the fact that the very best way the criminal justice system can serve victims is to bring responsible criminals to justice.
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Once the President announced his support for a victims' rights amendment, I in turn, asked then-Associate Attorney General John Schmidt and Assistant Attorney General Eleanor D. Acheson to review the proposed resolutions and discuss our concerns with Congressional staff. I know they have met with Chairman Hyde and his staff. Those meetings helped to identify important issues that must be addressed in drafting an amendment and to educate everyone at the table. I commend the Chairman and his staff on the hard work that has taken place to date.
There is still much work to be done. Our efforts at the Department of Justice have included gathering input from a wide variety of sources, particularly the law enforcement community. We have sought guidance from not only the United States Attorney's Offices nationwide, but also state prosecutors through organizations like the National Association of District Attorneys and the National Association of Attorneys General. I know that each and every member of this Committee has district attorneys and attorneys general in their states who have sought to meet the needs of victims, and I encourage you to work with them and to seek their input as you move forward with this important amendment. I have met with state and federal judges as well, and the Department has also met with representatives from key civil rights organizations.
In addition, we have met with representatives from a variety of key civil rights organizations to solicit their views. We will continue to consult with those leaders as we work to craft an appropriate victims' rights amendment that accords victims the participatory rights they deserve without eroding an essential aspect of what makes our system specialthe fundamental bedrock of constitutional protections for those who stand accused of a crime.
Our efforts at the Department also have included productive discussions with victims' rights organizations that cut across and through all partisan and ideological lines. These groups are not out to achieve any extraneous political objectives or to foster public relations victories. Rather, they are real peopletypically victims themselves or family members of victimswho are driven by a wholehearted belief that the criminal justice system must neither disregard nor neglect the rights of crime victims. These groups have encouraged me, correctly so, to support a victims' rights amendment that protects victims and gives them a voice at critical stages of court proceedings.
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The Administration is committed to continuing to work with Congress, state and local prosecutors, federal and state judges, victims and victims' groups, and others involved in the criminal justice system as we develop an amendment that gives real rights to victims and preserves the protections accorded to the accused. Such an amendment must be flexible enough to permit prosecutors, judges, and other justice system actors to deal appropriately and effectively with the variety of difficult circumstances that arise in the course of a criminal case.
ISSUES TO BE RESOLVED
During our discussions with Members of Congress, their staffs, and others, some important outstanding issues have been identified. We have been seriously examining these difficult matters. I would like to take this opportunity to address one of those issues.
Many have expressed concern regarding whether the adoption of a victims' rights amendment would effectively undercut those rights guaranteed to those who stand accused of a crime. Among the challenges we face in the effort that draws us here today is to craft a victims' rights constitutional amendment that protects the rights of victims without eroding those fundamental protections. We believe this goal can be most effectively achieved if the amendment includes express language to that effect. I do not mean to suggest that defendants will always prevail if they challenge the victims' rights to participate in the process. On the contrary, I believe that the two sets of rights can co-exist. However, on those rare occasions where, after a serious and searching analysis of the claim, it is clear that the vindication of a victim's rights will indeed violate a defendant's rights to a fair trial, we must as a society ensure that a fair trial is not jeopardized. This approach strikes the balance the Administration is seeking to achieve, and we look forward to working with you to craft language that produces this result.
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Of course, there are other important issues to resolve and I look forward to working with you to resolve them. There is one issue in particular I would like to note for your attention this morning. Any attempt to create rights for individuals requires a commitment of resources. The problem with many state efforts to provide rights for victims is that they have not been accompanied by the resources required to make those rights meaningful. A federal constitutional amendment will require the creation of effective systems of notification and other efforts that could be costly. While the text of an amendment is not the place to address such resource concerns, we must recognize that these issues exist and commit ourselves to deal with them if we truly seek to achieve the full measure of what a victims' rights amendment can offer.
As a final, but certainly important, note, I want to address two things the Administration is doing now to make sure that the federal system is keeping its commitment to victims of crime. First, last year the President directed that the Department of Justice take the lead on a number of fronts concerning victims' rights. The Department has been hard at work to improve how we deal with the victims in our own law enforcement efforts. That work is described in a report I submitted to the President in April.
Second, the Administration has transmitted to the Congress a legislative package that will accomplish the following in federal cases:
Establish a right of victims to be present throughout all public court proceedings to the maximum extent consistent with the Constitution;
Give victims who miss work to attend proceedings the same protection accorded to jurors against adverse action by employers;
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Establish rights of victims to be heard both orally and in writing concerning release decisions, plea acceptance, and sentencing;
Broaden victims' rights to be informed, to attend, and to be heard, in juvenile proceedings;
Authorize prosecutors to enforce victims' rights to be present and to be heard through applications for mandamus and appeal;
Authorize pretrial detention of defendants who seriously threaten victims regardless of the nature of the charge;
Strengthen victims' rights to restitution and compensation, and the remedies for collecting and enforcing restitution; and
Authorize funding for an automated victim information and notification system, to ensure consistent notice to victims concerning proceedings and other important occurrences in their cases.
We look forward to working with you on this important legislation in the coming weeks.
I look forward to working with you and your staffs to address these and other important issues. I would be pleased to answer any questions the Committee may have.
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Mr. HYDE. Thank you very, very much, Madam Attorney General.
Mr. Gekas, have you any questions?
Mr. GEKAS. Yes, I do. Thank you, Mr. Chairman.
Recently, we have had some hearings, General, on the question of witness protection; that is, the custom that we have of making sure that witnesses who might be subject to intimidation or, worse, to be shot to death, be given the opportunity to become a part of our Witness Protection Program. Many times, the victim or potential victim is also a witness, as we know.
Does your concept of the constitutional rights to be accorded to a victim also include the rationale of allowing that victim to be part of a witness protection program?
Ms. RENO. It would not accord them the right to that. But what we are trying to do in legislation that we have proposed is to make sure that there are provisions that we carefully craft, provisions that would provide for detention when there is an immediate threat or action against a victim.
One of the key issues that all of us face in law enforcement, not just for those in the Witness Protection Program but those who choose not to participate in the Witness Protection Program, is, how do we protect them? And I think that is an issue that we have to address with all citizens.
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Mr. GEKAS. But you feel that we can do that separate and apart from specific language in a proposed constitutional amendment?
Ms. RENO. I think it is very difficult to draft a constitutional amendment. If I could draft a constitutional amendment and enforce it that says that I will provide for the safety of all Americans, I would do it tomorrow. To try to draft something like that, that had efficacy, would be very difficult.
I think what we need to do is to work with the committee and with Congress to ensure that law enforcement and the U.S. attorneys have the tools they need to provide for short-term witness protection, when appropriate, and other methods of protection.
Mr. GEKAS. In one of the proposed articles in section 1, we have toto consider the safety of the victim in determining any release from custody. I suppose we mean from the release of the custody of the accused that we would then make sure that the victim be protected. So that is specific in the proposed resolution.
Ms. RENO. I think that, as proposed, the resolutionand the chairman can speak to itis consideration for the protection of the victim. And one of the keys to that, from my experience, is notification to the victim when the person is being released so that appropriate action can be taken.
Mr. GEKAS. You don't interpret.
Page 34 PREV PAGE TOP OF DOC Ms. RENO. I would be happy to work with the committee in terms of trying to address, on an ongoing basis, how we might perfect the language that the chairman has proposed from the draft.
Mr. GEKAS. The Florida Constitution, the constitutional amendment that you supported, as you stated in your statement, is that comparable to the resolution that we have in front of us for the eventual Federal Constitution changes?
Ms. RENO. I don't have the exact language of the Florida Constitution, and I have not compared the Florida constitutional provision with the committee's proposal. But I will get you the exact language so that we might do so.
[The information follows:]
FLORIDA STATUTES 1996
CONSTITUTION OF THE STATE OF FLORIDAARTICLE I DECLARATION OF RIGHTS
(Fla. Const., Art. I, 16)
Section 16. Rights of accused and of victims
(a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation against him, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties he will be tried. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.
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(b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
History: Am. S.J.R. 135, 1987; adopted 1988.
Mr. GEKAS. I have nothing further. I thank the Chair and yield back the balance of my nontime.
Mr. HYDE. Thank you, Mr. Gekas.
Mr. Conyers wishes to pass this round.
Mr. SCOTT. Thank you, Mr. Chairman.
I would like to welcome the Attorney General. I have a few questions. I will try to get through as many as I can.
Madam Attorney General, I understand that you support the amendment but only if it includes a provision like the Florida provision that the victim's right won't trump the defendant's rights.
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Ms. RENO. I think we have to work together to carefully craft it so that we are clear that the defendant has a right to a fair trial, and that is protected. But I think we can draft language that requires a searching and very thorough analysis that seeks to accommodate the rights of victims and defendants. Where, in those few instancesand I think there will only be a fewthat the defendant's right to a fair trial would be impaired by the enforcement of victims' rights, then I think the defendant's right to a fair trial should prevail.
Mr. SCOTT. Are there any present rights that a defendant has that ought to be diluted in order to accommodate the victims' rights amendment?
Ms. RENO. I don't think you have to dilute the defendant's rights to accommodate the victim's rights. I think the old
Mr. SCOTT. And therefore, if you have a provision that specifically says that the defendant's rights will not be trumped by this constitutional amendment, it will be a better amendment.
Ms. RENO. I think we have got to work together on the precise language of it. But I think we canit is very clear to me that there will be only a few instances where, if we craft the language carefully and if it is enforced in a thoughtful and very careful way, that we can accommodate both victims' and defendants' rights.
Mr. SCOTT. Now, your experience in Florida is with the constitutional amendment that had that provision.
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Ms. RENO. It had a provision. I don't ascribe particularly to the language of the provision. I think we need to work together to draft language that can appropriately protect the defendant's rights while at the same time ensuring the enforcement of victims' rights.
Mr. SCOTT. Now, if we don'tif we are not abridging the defendant's rights with this constitutional amendment, why do you need a constitutional amendment?
Ms. RENO. For 15 years, Congressman, I watched people say, well, we have got to focus on the defendant's rights, the court's caseload is too crowded, we can't have time for victims.
I think you can focus on defendants' rights while, at the same time, developing a baseline right for the people of this country to ensure that victims can participate, that they can be given an opportunity to be heard, that they can be advised when the person who has hurt them is going to be released. And I think that it is imperative that we recognize the rights of victims and that, through this procedure, we eliminate the patchwork of rights that exists across the country, some more effectively enforced than others, and establish in the criminal justice system that people who are victims are entitled to the right to participate.
Mr. SCOTT. Well, let me get to a specificunder this amendment, would the witness have a right to attend the trial without being excluded, as is traditionally the case for witnesses that are going to testify?
Page 38 PREV PAGE TOP OF DOC Ms. RENO. You could conceivably have a situation where eyewitness testimony is critical, where identification is critical, and there is a question, and the court might determine that the defendant's right to a fair trial would require the exclusion of a victim where the identification of the defendant is key.
Mr. SCOTT. Well, so that if the defendant's fair trial required the exclusion of a witness, which is traditional, to eliminate collaborated testimony, you would supportyou wouldn't want this amendment to prohibit the exclusion of the victim witness from the trial?
Ms. RENO. I think what we have got to look at is what constitutes a fair trial for the defendant. And I think we have got to all work together to ensure that the victim has
Mr. SCOTT. Let me ask it another way. Would you want to dilute the defendant's right to exclude witnesses under this constitutional amendment?
Ms. RENO. I would want to dilute anything that is not essential to a right to a fair trial, if it was necessary to enforce the right of a victim to participate. And so I think what we have got to do is to look carefully and very searchingly at all of these issues, because it was my experience that judges, prosecutors, and lawyers working together in the courtroom could, when they really put their mind to it and address the issues, accommodate the rights of all concerned.
Mr. HYDE. The gentleman's time has expired.
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The gentlelady from Texas, Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Thank you for holding this hearing.
I thank the Attorney General as well for her presence.
It is good to see you again. I am extremely sympathetic to these issues and values, and I would like to have you help me work through this. I have an abiding and standing aversion to the amendment of our Constitution. It is obviously a very serious document and of course has withstood the test of time.
I cannot deny, however, the values and the premise upon which the victims' rights amendment has been offered and the goodwill and intent. And also, tragically, the heinous crimes that so many of us have experienced over these past decades seem to beg the question that we have to respond to an increasing number of victims.
But I would like your comment on the ultimate, or seemingly final, response of the Judicial Conference led by Chief Justice Rehnquist in preferring a statute over a constitutional amendment. If you could share with me how we could differ with that perspective and why there would be an enhanced need for constitutional amendment from your perspective, if I may just add an additional thought on that issue, and we have a circumstance where crime, as I said, has become heinous. We are glad to see numbers going down, but we can read the newspapers and find some things that we could not fathom decades ago. Suppose one of the victims was engaged in the act and could claim a victim status; how would we respond to that?
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I raise those two questions, and I will have others.
Ms. RENO. Let me take the first question. If Congress were to pass a statute forwarding the same rights, it would really apply only to the Federal system. There is still a patchwork of constitutional amendments, and some States have no constitutional amendments, some States have statutes, some States have funded their statutes, some States really haven't provided for significant funding. And there is a patchwork that does not permit a victim in this country to know that, wherever they are in this country, they are entitled to some basic rights.
I think it is important not only to establish the baseline, but by enacting a constitutional amendment, I think it gives us the opportunity to bring up the level across the country of attention to victims' issues that is so critically important. I have just seen so many situations where a statute says one thing, it is helped immeasurably when you can point to the U.S. Constitution as the source for the authority.
And if peopleI touched on it earlier in my testimony; there are too many victims in this country who just feel like they are left out of the system. And I think it is important that we have a go through the amendment process and use the Constitution to create the recognition that victims are entitled to rights.
With respect to the situation where you may have a victim and who becomes the defendant, or vice versa, I think we can address this. And I think the committee's and the chairman's proposal recognizes that there may have to be certain situations where you can, through legislation, create an appropriate recognition of the dual character of the people involved.
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Ms. JACKSON LEE. Would that be a subsequent modification? Or as we are drafting, should we look at it in the course of drafting an amendment? Or would we talk about that subsequently?
Ms. RENO. I think we need to look at that very issue in drafting the amendment. And as I understand the chairman's work, it is recognized that there may be a need for exceptions that can be created. But you have got to be very careful, and that is the reason it is important we all work together to try to draft it with as much foresight in mind with the possibilities that can arise.
Ms. JACKSON LEE. Let me follow up and simply say, in testimony you gave before the Judiciary Committee, you offered the President's hesitancy on the issue in terms of being supportive but questioning an issue of a clean criminal investigation and prosecution. And if we looked at the most recent large and tragic case, that of the McVeigh trial, with many accolades to the prosecution, the greatest joy, I think, for the victims was to see a conviction based upon a cleanly presented case.
How would such an amendment potentially contribute to questions and concerns about a clean criminal investigation and prosecution?
Ms. RENO. Let me not discuss the McVeigh trial.
Ms. JACKSON LEE. And I am not asking you. I am using that as a comparison in terms of what victims feel good about, that is a conviction.
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Ms. RENO. If there were a comparable trial, one of the hallmarks of this case has not been just the presentation in court but the attention to the victims and to their survivors. And it was from the beginning that we tried to do everything we could to organize the forces of the Justice Department to respond to victims, to respond to survivors, to keep them advised, to develop a notification system that let them know that the work that everyone did, the judge did in making sure that there were opportunities for victims to see the process and to understand the process, even with so many people involved, I think is a testimony to the effect that you can present a case in the fashion that that was presented while at the same time attending to the rights of victims.
Mr. HYDE. The gentlelady's time has expired.
Ms. JACKSON LEE. Thank you very much.
Mr. HYDE. Mr. Sensenbrenner of Wisconsin says he has no questions at this time. And so Mr. Goodlatte of Virginia is recognized.
Mr. GOODLATTE. Thank you, Mr. Chairman. I have no questions either.
Mr. HYDE. I thank the gentleman.
Page 43 PREV PAGE TOP OF DOC Mr. CHABOT. I have no questions, Mr. Chairman.
Mr. HYDE. I doubly thank the gentleman.
The gentleman fromby the way, we expect a series of up to five votes around 10:30. So if we could finish with the Attorney General, that would be wonderful.
Mr. Meehan is recognized.
Mr. MEEHAN. Thank you, Mr. Chairman.
And, Attorney General Reno, again, thank you for appearing once again before the Judiciary Committee. I am particularly interested in your testimony today, because I believe that this administration has special credibility on criminal justice issues. According to the Uniform Crime Reports and the National Crime Victimization Survey, serious violent crime is on the decline in America. Between 1994 and 1995, murders fell by 7 percent, forcible rape decreased by 5 percent, robberies dropped by 6 percent. And I believe that this is a trend, and a welcome trend, is in no small part due to the administration's policies and, in particular, your policies relative to crime. The 1993 Brady bill, the 1994 crime bill, the 1996 antiterrorism bill are all working to make our streets and our communities stronger and safer.
Despite our best efforts, however, there will always be victims of crime, and we in Congress are morally obliged to assure that our criminal justice system treats these victims with fairness and dignity and respect. And myself, Mr. Delahunt, and those of us who have worked in the DA's office in Massachusetts have a great victims' right statute that has had an enormously positive effect in Massachusetts.
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The question is whether we need a Federal constitutional amendment to achieve this important objective and, if so, how that amendment and any implementing legislation should be drafted. Your testimony today obviously will help us answer both questions.
Along those lines, I want to pursue Mr. Scott's inquiry a little bit. I note that you have stated that if a victim's right were to conflict with a defendant's right to a fair trial, the defendant's rights must not be jeopardized. There seems to be some debate over whether this scenario would ever arise. Many proponents of a Federal victims' rights amendment insist that victims' and defendants' rights coexist without ever colliding. On the other hand, others claim we need such an amendment precisely because defendants' constitutional rights often trump victims' statutory or State constitutional rights, a claim that suggests victims and defendants' rights are frequently in conflict.
So the question is, when might a victim's rights conflict with the defendant's right to a fair trial, specifically? And also, should a Federal victims' rights amendment contain specific language, stating that the defendant's rights to a fair trial trump the victim's rights in the case of a conflict?
Ms. RENO. First of all, in my statement I have indicated that we want very much to work with you to draft language that would address the protection of defendants' rights.
With respect to a possible example, one example might be if eye witness identification of the defendant is key, and there is question about it, and if there are witnesses in the courtroom before specifically saying that is the man who did it, there might be issues that arise there.
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But it is my experience, Congressmanand I suspect that you and Congressman Delahunt have had the same experiencethat if everybody involved in the system will recognize that there are victims' rights as well and take the time to work them out and to look at how it can be adjusted the right way, you can do so much.
And that is the whole purpose of this amendment, is to make sure that we recognize that there are victims' rights, too, under the Constitution, not just in Massachusetts, not just in Florida, but across this country, and that there is a base line for what those rights should be. I think then the participants in the criminal justice system can more effectively address and engage in that searching analysis that will permit the accommodation of the rights.
Mr. MEEHAN. What about specific language relative to when there is a conflict between the defendant's rights to a fair trial and victims' rights? I mean, should that specifically be mentioned?
Ms. RENO. That is the point I am making. We want to work together with you to draft language that would recognize the defendant's right to a fair trial should be unimpaired. But I think we can draft it, and I think there are going to be very, very few instances where one conflicts with the other to the extent that one has to give way.
Mr. HYDE. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
Page 46 PREV PAGE TOP OF DOC Mr. DELAHUNT. Yes, thank you, Mr. Chairman. And, again, I want to reiterate the welcome to the Attorney General. I also want to acknowledge the work that the Attorney General has done in her previous life as a State's attorney in Dade County in terms of victims' rights. And, again, I know that she is aware that we both share the same priorities when it comes to victims.
I think it is important to know that in a historical context, the victims' rights movement in this Nation is a recent phenomenon, and it really only became a matter of public awareness and consciousnessand became part of the public policy debate among criminal justice professionalswithin the past two decades. It has really only been 20 years. And my sense is that we have made tremendous strides in that 20 years.
My experience as a district attorney 25 years ago was that the victim was totally ignored by the system. And in your written testimony you indicate that despite the fact that there were significant efforts at the State level, they are still inadequate.
As my friend and colleague from Massachusetts, Representative Meehan indicated, I am very proud of what we accomplished in the Commonwealth of Massachusetts, and I know that there are other States that have introduced significant initiatives in terms of victims' rights, whether it be the victims of sexual abuse, domestic violence, civil rights, et cetera. As I would attend various conferences throughout the Nation, I sensed this tremendous support nationally for victims' rights. I wonder if there has been any hard data, any studies done by the Department of Justice, to indicate and to provide the evidence for the conclusionsand I say this respectfullythat the Department has reached in terms of inadequacy at the State level.
Page 47 PREV PAGE TOP OF DOC In regard to the anecdotal situation with the judge, that is going to occur whether we have a Federal Constitution, a State constitution, Federal statutes, or State statutes. That is part of the human condition. We don't live in a perfect world. And my own sense is that it is a question of resources and that some States that have less resources available to the criminal justice system need help financially.
I will conclude there. It is more of a statement than a question. But I guess the question is, have we actually gone into the field, done a full and thorough survey of the various States, to see which States aren't performing to what would be a reasonable standard to expect for victims of crimes?
Ms. RENO. First of all, the whole Constitution in some respects is about resources, whether it be representation for indigent defendants, whether it be having court systems that can afford appropriate rights for defendants. It is all about resources, with some States funding their systems better than others.
But one of the keys to resources has been the requirement that they be provided and a baseline requirement that is recognized across the Nation. I will provide you with such reports as we have. I can't tell you that each State has been analyzed in terms of the percentages that have received notification or not, but I would agree with you that through the leadership of victims and prosecutors like yours, tremendous efforts have been undertaken.
But let me give you my own example. I developed a victim witness coordination unit early on in my office. I tried to fight for resources to provide the support, to provide the notification, to let victims know what was going on. It was so frustrating when I was told, sorry, we are too busy, we have got to move on, when I wanted to make sure that that victim had the right to be heard. And I think it is imperative that we recognize what everyone agrees is an appropriate recognition if it does not violate the defendant's rights to a fair trial. And I think we can work together to achieve that.
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Mr. DELAHUNT. I would hope that the Department would consider conducting a full and extensive and exhaustive study of the various States and also provide to this committee and to Congress an estimate, if you will, of what we are talking about in terms of fully implementing a system of victims' rights throughout this Nation, whether it be done by amendment or whether it be done by an appropriate Federal statute.
Mr. HYDE. The gentleman's time has expired.
Mr. DELAHUNT. Thank you.
Mr. HYDE. I thank the gentleman.
The gentleman from Florida, Mr. McCollum.
Mr. MCCOLLUM. Thank you very much, Mr. Chairman.
I am sorry I wasn't here earlier, Attorney General Reno. And I understand you touched on this briefly, but I would very much like to get you to elaborate on a concern that I have had because of the involvement this committee had after enduring the McVeigh trial.
The judge out there, as you know, ruled initially that the victim who came to the trial and sat in and watched the main proceedings on guilt or innocence would not be allowed to testify under the law we passed last Congress in the sentencing phase. However, Congress passed a law that intervened in that process, not specifically for the McVeigh trial but for all trials, that clarified and really overrode the judge's position at that juncture.
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He then came back and ruled, as I understand it, that he would consider on a case-by-case basis whether the person who is testifying, later in the sentencing phase, had been unduly influenced potentially by what that person may have heard if they sat in on the trial of guilt or innocence.
I wonder if you could comment on your reaction to that procedure the judge set up, whether a proposed constitutional amendment on victims' rights, in light of what we are experiencing here, needs to take any of this into account; if we can, how we might do that.
I gather that all went well ultimately in the McVeigh trial. I do not recall the judge excluding anyone who was a victim who wanted to testify from testifying because they sat in on the main trial in chief. But I do recall all that discussion happening.
Ms. RENO. Congressman, would you bear with me?
Mr. MCCOLLUM. Certainly.
Ms. RENO. I am under an order not to discuss the case. And what I would like to do, so that I do not in any way violate that order, is find out what information we may provide to you appropriately in connection with that order and do so immediately. But I would not, I thinkI think it would be inappropriate to comment on it.
Mr. MCCOLLUM. I understand that. And let me say I certainly appreciate that. I put my question in a more hypothetical way and ask you not to comment on the McVeigh case in any way, shape, or form, but just say that wewe all know that there are problems that emanate from a concern over whether a witness who is appearing before the trial and sitting and watching the guilt or innocence phase might face some kind of degree of influence in his or her testimony when they might get an opportunity to testify in the sentencing phase.
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Do you think there are concerns that are legitimate that we should be addressing in any constitutional amendment with that? And is your Department analyzing that question?
Ms. RENO. What we have done is suggest that we can carefully craft an amendment that gives a person a right to participate. There will be certain situations where that may impair a right to fair trial; for example, with respect to an eye witness identification of the defendant in the courtroom where the issue of identification is problematic and is in serious question. But I think, and the whole thrust of our support of this constitutional amendment is, that if you have two balancing rights, if people thoughtfully and searchingly analyzed the issue, they can, in most instances, accommodate the rights of both.
Mr. MCCOLLUM. Well, thank you.
I realize it is a difficult question for me to ask you in light of the ongoing process, but it is definitely integral to our decisionmaking. And I, for one, want to see the witness be able to testify in terms of a victim in every case and be able to vent those feelings that I think are very importantthat they be heard in the sentencing phase of major criminal trials in this country, whether they be State trials or Federal trials.
And I personally don't think that you are going to see very many cases where a victim is going to be influenced in any way by what they hear at the trial in chief, because I also think that it is very important for the witness to be able to sit in at the trial in chief. It is very much a part of what victim's rights are all about. And I just encourage you to help us resolve this as we go through it.
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Thank you, Mr. Chairman.
Mr. HYDE. The gentleman's time has expired.
The gentleman from Florida, Mr. Wexler, is recognized.
Mr. WEXLER. Well, thank you, Mr. Chairman. I just enjoy listening to the Attorney General. I don't have any questions.
Mr. HYDE. Well, I thank the gentleman for his cooperation.
And, Mr. Conyers, are you satisfied?
Mr. CONYERS. Yes.
Mr. HYDE. Very well.
Well, we thank you, Attorney General Reno. It has been very helpful and stimulating and informative, and we will study your views and continue to work with you and Mr. Fois to try and solve this problem.
Ms. RENO. Thank you, Mr. Chairman.
Mr. HYDE. Thank you very much.
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Our third panel consists of three witnesses who represent the Federal and State judiciary. First, we have two judges to appear here today on behalf of the Judicial Conference of the United States, Chief Judge George Kazen of the Southern District of Texas and Judge William Terrell Hodges of the Middle District of Florida. Chief Judge Kazen will present the statement of the Judicial Conference and both he and Judge Hodges will answer questions.
Chief Judge Kazen is a graduate of the University of Texas and its law school. After a tour in the Air Force, he was in private practice for many years. He became a judge in the Southern District of Texas in 1979, and became Chief Judge in 1996. He is currently Chairman of the Committee on Criminal Law of the Judicial Conference.
Judge Hodges is a graduate of the University of Florida and its law school. After many years in private practice, he became a judge in the Middle District of Florida, in 1971. He also served as Chief Judge of that court for a number of years. Currently, he is Chairman of the Executive Committee of the Judicial Conference.
On behalf of the State courts, we have Chief Justice Joseph Weisberger of the Supreme Court of Rhode Island. Chief Justice Weisberger is a graduate of Brown University and Harvard Law School. After service in the Navy and in private practice, he became a justice of the Superior Court of Rhode Island in 1956, serving there until he was elevated to the Supreme Court of Rhode Island in 1978. He became Chief Justice in 1995. He appears here today on behalf of the Conference of Chief Justices, the national organization of the State courts.
I believe we will proceed with Judge Kazen, if you would, Judge, and if you can try to confine your remarks to about 5 minutes, we will put your entire statement in the record, and what I feared, has just transpired, we will have some votes, so you willif you don't mind waiting, we will vote and then come back. And if the committee would come back as soon as we are finished with the last vote, there may be more than one vote. The committee stands in recess.
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Mr. HYDE. The committee will come to order and the Chair recognizes the gentleman from Florida, Mr. McCollum, for purposes of a more fulsome introduction.
Mr. MCCOLLUM. Well, thank you. I just wanted to welcome Judge Hodges with us. He is from my district, the Middle District of Florida. We are delighted to have a Floridian up here today, and I heard the chamber's introduction, but I just wanted to be gracious and be sure I publicly acknowledged the fact that you and I shared that commonality and welcome.
Mr. HYDE. Thank you very much. Judge Kazen.
STATEMENT OF HON. GEORGE P. KAZEN, CHIEF JUDGE, U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
Judge KAZEN. Thank you, Mr. Chairman, and we appreciate the opportunity to be here today. We are especially grateful to you and to the members here for your obvious willingness to consider all facets of this very difficult problem. I will be very brief. We have submitted our paper.
At the very beginning, less there be any doubt, and I certainly hope there would not be, I would like to say that Judge Hodges and I and indeed any Federal judge that I know, are fully sympathetic with the victim of any crime. Neither we nor our loved ones are immune from criminal activity, and as you know, many of us have been subjected to threats and even worse, just by the very fact that we are judges. So we understand the problem.
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We do, however, have serious concerns about the workability of a proposal to constitutionalize victims' rights and we welcome this opportunity to present our views. Our position is basically reflected and illustrated to a certain extent by the dialog you just had with Attorney General Janet Reno; namely, that while the goal itself is a worthwhile ideal, like so many other things the devil is always in the details.
I will highlight a couple of our concerns. The first is that, at least in H.J. Res. 71, the kind of crimes described is extremely broad. It essentially covers every felony because every crime that carries a maximum sentence of more than a year is a felony. Then it also includes other crimes of violence, which therefore means all felonies, plus all misdemeanors involving violence. That is a lot of cases.
In fact, as we put in our paper, there were 34,000 felonies filed last year in the Federal court system, many thousand more misdemeanors, 1.7 million felonies in State court and 9.4 million misdemeanors. Also, the definition of victim not in the constitutional provision but in the proposed accompanying statute, is broad, in that it also includes persons claiming emotional distress from some crime. If you combine those two things, we are talking virtually about every crime on the books, and anyone who is claiming to have suffered physical or monetary or emotional harm from the crime. Quite frankly, you are talking about potentially overwhelming the very finite resources of the court system, Federal and State.
Like any other entity, whether it be commercial or governmental, if the courts try to do far more than its resources allow, the end result is that they don't do it well for anybody, and they don't really accomplish anything for anybody by trying to do too much for everybody. So one proposal that we would make is that you seriously consider limiting whatever you do here to crimes of violence.
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The victims rights movement is largely the product of people being offended by violent crimes, which we all are, and limiting the proposal to violent crimes would at least make it much more manageable. If you do that, I would also urge you to be careful about defining what a crime of violence is, because it has many definitions, even in the Federal system. The other thing we would urge is that, whatever is enacted, to the extent that it puts obligations to send out notices and keep in touch with all the various victims, you give very strong consideration to not placing that responsibility on the judicial branch for various reasons, policy and pragmatic.
The statute says the courts and all other agencies, without distinction, shall do all the various things required. On the policy side, in court trial, the judge's role is to be a neutral arbitrator, a neutral referee, between the prosecution and the accused. I think the more natural role for somebody to be protecting the victim and shepherding his rights through the system would be the prosecutor.
We have to remember that, at least up to the time of the plea of guilty or conviction, we are still talking about an accused person, and woe to us if we blur that distinction. The accused is still a person charged with a crime but presumed to be innocent.
The practical aspect is that as a case unfolds, it takes awhile in the natural progress of the case for the judge or court personnel to be familiar enough with the facts to know the alleged victims. The statute contemplates notices even from the time of arrest and bail stages and then even after trial at parole hearings and prison releases. Therefore, we feel that as a practical matter, the prosecution, the executive branch, would be much more able to efficiently deal with those notices.
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I would also mention the cost. We simply don't have the personnel or the money to assume these added responsibilities. As you know, the total judiciary budget is something like 1 percent of the Federal budget. A victims rights group sent me material the other day and, looking through it, I noticed in Arizona, there was an audit in the various counties, and I saw the report that in Maricopa County, AZ, for fiscal year 1994 and 1995, the prosecutor's office estimated implementation of victims' rights requirements in Arizona cost his office $1,400,000.
Now, if you take that sum and add it to the amount from the rest of Arizona and then consider places like New York City, Los Angeles, Washington, DC, or Buffalo, you are talking about a lot more money than the Federal court system is ever going to be appropriated. Finally, I would note that the Department of Justice, as we understand it, already has persons in each office designed as victim coordinators, and therefore would already be equipped to handle notice obligations.
We also urge you to take extreme caution to prevent placing the State and Federal court systems in an adversarial position. The proposed constitutional amendment provides that the defendant cannot obtain any relief from violations of the amendment, and also provides that there are no damage awards allowed. It does not foreclose injunctive relief. We understand it is contemplated by many victims' rights groups, that if a victim felt he was not getting any of the rights described in the constitutional amendments, he could immediately seek injunctive relief from a court, and, of course, any right in the Federal Constitution is enforceable in Federal court.
That puts the Federal courts in the position of being a watch dog over the State court system. I would question whether Congress wants to take that step, since many in the Congress have lately expressed strong concern about the role of the Federal judiciary in State government. I realize that the accompanying statute would eliminate all relief, and provide no cause of action at all. That of course, raises the question of what is the point of the enactment. In any event, it is a serious issue for you to consider as you proceed on this issue.
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Another point is that the statute and the Constitution simply provide that all victims get restitution. If you combine that with the fact that they would apply to almost every crime, the question we ask you to consider is how this would relate to the much more carefully crafted Mandatory Restitution Act that has just recently been passed. Is it simply a restatement of that act, or does it override the existing act?
Finally, the Judicial Conference has gone on record as saying if you decide something is required in this area, we strongly encourage that it be done by way of a statute, rather than a Federal constitutional provision. The speakers before us said what we would all say, that before putting something in the Constitution, there ought to be a clear understanding of why we are doing it. I applaud the earlier suggestion that a careful study ought to be made, beyond mere anecdotal recollections of a particular case, to determine the true extent of the problem.
A thorough study would help to resolve the many very serious questions of how this proposal would play out in the real world, in the courtrooms. A statute would allow for these concepts to be tested in the Federal system. There are also 29 States with constitutional amendments that could furnish more information for a study. In fact, I am told that all the rest of the States, even if they don't have a constitutional amendment, at least have addressed many of these rights by statute.
I agree with the gentleman that sat here, that this is a relatively new jurisprudential concept in the history of our Republic, and we ought to be sure what we are dealing with before it becomes a part of the U.S. Constitution. So that is a summary of our position, Mr. Chairman. I will be happy to answer questions, and our complete statement has been submitted. Thank you very much for your courtesy.
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[The prepared statement of Judge Kazen follows:]
PREPARED STATEMENT OF HON. GEORGE P. KAZEN, CHIEF JUDGE, U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
Mr. Chairman, and Members of the Committee, I am George P. Kazen, Chief Judge of the United States District Court for the Southern District of Texas. I am appearing before you today in my capacity as Chairman of the Committee on Criminal Law of the Judicial Conference of the United States. Appearing with me is Wm. Terrell Hodges, United States District Judge for the Middle District of Florida. Judge Hodges is the Chairman of the Executive Committee of the Judicial Conference.
On behalf of the Judicial Conference I appreciate the invitation to testify today. We in the judiciary recognize that the ultimate decisions about how best to control crime in our society are policy decisions for the Congress. However, federal judges directly participate in the criminal justice system on a daily basis, and I believe it is also fair to say that federal judges feel as strongly as you do that the effective control of crime is a priority goal which must be achieved.
We also agree that everyone involved in the system, from both the judicial and executive branches, must ensure that the victims of crime are appropriately recognized in the process. We hope that the testimony we provide here today is useful to you.
As you requested, I will comment on two proposals to provide rights to victims of crime, H.J. Res. 71, proposing an amendment to the Constitution of the United States to protect the rights of crime victims, and H.R. 1322, the ''Victims' Rights Constitutional Amendment Implementation Act of 1997.'' I will also discuss the Judicial Conference's recent statement regarding a statutory alternative to this issue. In the event that Congress chooses to affirmatively act on the issue of victims' rights, the Judicial Conference would strongly prefer that Congress pursue a statutory approach to this issue as opposed to a constitutional amendment.
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H.J. RES. 71 AND H.R. 1322
In March of 1997, the Judicial Conference resolved to take no position at that time on the enactment of a victims' rights constitutional amendment. The Conference did direct the Committee on Criminal Law to maintain contact with Congress as Congress deliberates enactment of a victims' rights constitutional amendment to inform how the amendment may impact the administration and costs of operating the federal courts. Although the Conference has taken no position on H.R. 1322, I have included in my remarks here comments on certain aspects of the bill that are important in relation to the proposed constitutional amendment.
While H.J. Res. 71 appears to have less potential adverse impact on the federal judiciary than previous amendment proposals, there remain a number of fundamental concerns. Among the most important of these are the kinds of crimes to which the amendment will apply, the remedies for violations of the proposed rights, the implications that enforcement of the proposed rights has for our federal system, the need for exceptions to the proposed rights necessitated by considerations of the administration of justice, speedy trial rights of victims, and the allocation of responsibility for providing notice to victims.
Classes of Crimes and Victims To Which the Amendment Will Apply
Under H.J. Res. 71, the proposed amendment will apply to each ''individual who is a victim of a crime for which the defendant can be imprisoned for a period longer than one year or any other crime that involves violence.'' The scope of the class of crimes and victims to which the amendment applies will have a fundamental effect upon the impact of the proposal.
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Essentially, this provision applies the amendment to all felony offenses and all violent misdemeanors. This comprises the vast majority of cases in the federal criminal justice system.
To put this sweeping proposal in perspective, nearly 48,000 criminal cases were commenced in the federal courts during Fiscal Year 1996. Of this total more than 34,000 were felonies. Our statistics do not readily indicate how many of the nearly 12,000 misdemeanors filed involved violence. Although the impact of this provision upon the federal courts would be substantial, that effect will pale by comparison to the impact it will have upon the states, where more than 13 million criminal actions were filed during 1995, including more than 1.7 million felonies and nearly 9.4 million misdemeanors.
Closely associated with this issue is the definition of the term ''victim.'' While the proposed amendment includes no definition of victim, H.R. 1322 defines ''victim'' as a person ''that has suffered direct physical emotional, or pecuniary harm as a result of the commission of a crime.'' The effect of this extraordinarily broad definition of victim becomes particularly important in light of the broad classes of crimes to which the amendment applies. If the proposed amendment were limited to crimes of violence, the impact would be more manageable. Most crimes that can be classified as crimes of violence (excluding terrorist attacks) involve few victims (although in the state courts the number of these cases is quite large). However, H.J. Res. 71 appears intended to apply to all felonies, with potentially dramatic results.
For example, many districts in our country are currently handling large numbers of telemarketing fraud cases. Thousands of victims can be involved in a single case. The numbers of victims in a single environmental case could be even more extensive, particularly in the context of a toxic discharge into the air of a large metropolitan area or into the watershed of a heavily populated region. Providing the rights enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty.
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Extending the definition of victim to those who claim ''emotional'' harm from criminal offenses dramatically exacerbates the potential impact of this broad definition. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Additionally, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury.
We urge Congress to evaluate the extensive reach of this proposal and the inevitable costs and impact that it will have upon our criminal justice system. In these increasingly lean budgetary times, Congress may wish to consider narrowing the sweep of the amendment, dedicating scarce public resources to reach the victims of violent crimes, where the rationale for considered treatment of the victim is most compelling.
The application of the amendment to ''any other crime that involves violence'' is also problematic. It is unclear to what crimes this provision would apply. Even the term ''crime of violence,'' which is much more commonly utilized in legal parlance, has many meanings under state and federal law. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term will inevitably result in protracted and unnecessary litigation that will likely take years and great expense to resolve.
In this context, I should note here that it is not entirely clear whether Section 3 of the proposed amendment would provide sufficient authority for Congress to legislatively determine any or all of the matters proposed in H.R. 1322. Consideration should be given to adding specific Congressional authority to define critical aspects of the amendment, most particularly the crimes and the classes of victims to which the amendment would apply. This could be accomplished by simply adding the words ''as defined by Congress'' at appropriate places in H.J. Res. 71, and it would assure Congressional power to provide reasonable, workable definitions for these important concepts.
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Unlike some previously introduced victims' rights constitutional amendment proposals, H.J. Res. 71 stipulates that a victim has no grounds to challenge a charging decision, a conviction or a sentence already imposed on a defendant. The addition of sentencing in this context is a particularly significant and valid limitation. Allowing victims to challenge sentences would not only erode the fundamental principle of finality of sentencing, but would also result in significant operational problems.
We suggest that the Committee consider modifying the proposed amendment to additionally prohibit a victim from challenging a ''negotiated plea.'' 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. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated.
The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights.
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Administration of Justice Exception
H.J. Res. 71 permits Congress and the state legislatures to ''enact exceptions when required by the public interest.'' While this is a very valid and useful provision, the Committee should carefully consider the need for a further exception based on adverse impact on the administration of justice. Inevitably, courts will handle cases where the rights of victims collide with the functional administration of justice. Such cases might fall into two general categories. The first category relates to the very real practicalities of the administration of justice. One example would be an action involving exceptionally large numbers of possible victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. A similar problem would be encountered if large numbers of victims wished to exercise their rights to allocution at sentencing, unduly prolonging the proceedings and pushing back other cases that need to be heard. The second category of cases are those in which the rights of victims, exercised under certain circumstances, may have a substantive effect upon the rights of defendants or others, impairing due process or the right to a fair trial. An example of such a case would be if a victim wished to both attend the trial and testify at the guilt phase of the trial. This could impair the fundamental integrity of the trial. In that regard, we must never lose sight of the bedrock principle of our democracy that the defendant is presumed innocent until a guilty plea is entered or a verdict is reached.
Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress and the states to statutorily enact exceptions in ''aid of the administration of justice.'' At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not ''interfere with the constitutional rights, including due process rights, of the person accused of committing the crime.'' It could also be accomplished through a more narrow provision, similar to that in the Wisconsin and Ohio constitutions, by the addition of a phrase allowing sequestration when ''necessary to provide that a defendant is afforded a fair trial.'' Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration ''to protect overriding interests that may be prejudiced by the presence of the victim.''
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Speedy Trial Considerations
The proposed amendment includes a victim's right to ''seek relief from an unreasonable delay of the final disposition of the proceedings relating to the crime.'' Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation.
In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. 31613173, not only guarantee and explicate the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. 3161. This mechanism is an integral part of the criminal justice system, which balances the desirability of a speedy trial with the realistic requirements of a fair proceeding.
The right to seek relief from unreasonable delay apparently presupposes that either the public prosecutor or the presiding judge, or perhaps both, are indifferent to a reasonably prompt disposition of the case. A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court? And what is the meaning of ''final disposition?'' Does it include the appellate process? What forum and mechanism would determine whether the appellate process is proceeding at a reasonable or unreasonable pace?
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The same question could be asked of collateral relief through habeas corpus proceedings, including the requirement that persons challenging state court convictions must first exhaust state remedies before even going to court.
With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, clamoring for speedier proceedings, could potentially cause severe internal conflicts within units of the same court.
It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to thousands of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better and possibly worse in the state court systems.
PREFERENCE FOR A STATUTORY ALTERNATIVE
If the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. This position was determined by the Judicial Conference in April 1997, in a unanimous vote of those members participating. The Judicial Conference authorized me at that time to send a letter to the members of the Senate Judiciary Committee explaining why we believe a statutory approach is clearly preferable.
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A statutory approach has a number of distinct advantages over a constitutional amendment. Of critical importance, such an approach is significantly more flexible. It would more easily accommodate a measured approach, and allow for ''fine tuning'' if deemed necessary or desirable by Congress after the various proposed concepts are applied in actual cases across the country. At that point, Congress would have a much clearer picture of which concepts are effective, which are not, and which might actually be counterproductive.
A statutory approach 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, with its concomitant application to the various state systems. Many of the principles contemplated in H.J. Res. 71 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could conceivably take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process.
A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, a proposed amendment potentially would not be effective for many years, awaiting the lengthy, ponderous and uncertain ratification process required under Article V.
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We note that H.R. 1322, although introduced as an implementing statute for a constitutional amendment, could potentially be crafted as the basis for a statutory approach to the issue of victims' rights. While the Judicial Conference has taken no position on H.R. 1322, or any specific statutory alternative, we hope that you will extend to us an appropriate opportunity to comment upon the specifics of any such alternative, and we would be pleased to respond.
The members of the federal judiciary, like all Americans, share a profound concern for the victims of crime. Neither judges nor their loved ones are immune from the results of criminal activity. However, we believe that the interests of crime victims are best served by a system which will provide adequate protection for the rights of victims while balancing the need to ensure a fair trial for persons accused of a crime but who are presumed to be innocent. That is our goal. It is one we should share together.
We also believe that crime victims are not served when false expectations are raised by enactments that describe various rights but exclude any practical enforcement of those rights. However, if real enforcement mechanisms are provided, we risk creating a dual system of public and private prosecutors in the same proceeding who could well end up at cross purposes, thereby frustrating the original intent of the enactment. Finally, a constitutional amendment significantly affects our system of federalism. A federal constitutional right is necessarily enforceable in federal court. Federal judges would inevitably be asked to enforce the new federal right when it is allegedly not being honored in state court proceedings. Unlike post-conviction habeas review, enforcement of these victims' rights would have to occur during the pendency of the state court proceedings to have any meaning. The ramifications of this federal supervision should be carefully considered, especially since many in Congress have expressed deep concern over perceived federal judicial intervention in state governmental matters. If the response is that only state courts would be allowed to police state criminal proceedings with respect to the new federal constitutional right a novel solution one must then wonder what the purpose of the amendment is in the first place.
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Once again, I thank you for the opportunity to appear before you today. I am prepared to respond to any questions you might have about this issue.
Mr. HYDE. Thank you, Judge. And now Chief Justice Weisberger, you are recognized for 5 minutes. And if you could pull that microphone over closer to you, that is fine.
STATEMENT OF HON. JOSEPH R. WEISBERGER, CHIEF JUSTICE, SUPREME COURT OF RHODE ISLAND, ON BEHALF OF THE CONFERENCE OF CHIEF JUSTICES
Judge WEISBERGER. I hope that works, Mr. Chairman. Thank you very much for the opportunity to come and testify on behalf of the Conference of Chief Justices. I would begin by adopting virtually everything that my brother, Judge Kazen, has just told you about the dangers of a constitutional amendment, as opposed to a statutory provision that would entrench victims rights in the Federal system.
As he has pointed out, 29 States have constitutional provisions, including my own State of Rhode Island. All States have statutory provisions, guaranteeing victims rights. I think we are completely at one in terms of our support for the rights of victims. We are completely at one in our concern for the rights of victims.
We do believe, however, that our Federal system has a great genius behind it, and that is, diversity. With all due respect to the Attorney General, and I applaud her efforts on behalf of victims' rights, what she describes as a patchwork is really a description of Federalism. All States are not exactly the same.
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I think that generally all of the States are making an effort to recognize and protect the rights of victims, particularly of violent crimes. We, of course, would very much fear the oversight, as my brother has suggested, of the Federal judiciary in providing remedies for victims. We can see the possibility of a victim seeking enforcement, for example, of the speedy trial provision, in a Federal court. That could create considerable havoc in a State court, which systemically may have problems in reaching a case as rapidly, perhaps, as a victim might hope that it should.
After all, 98.5 percent of all criminal activity takes place in State courts. The numbers of felonies, the numbers of misdemeanors are positively overwhelming. The mere recitation of the millions of cases is illustrative of a problem that creates tension between the rights of the victim and the needs of the prosecution.
You have discussed sequestration of witnesses. This is another problem that requires judicial determination. We would ask you to allow the States to make these determinations within their own jurisdictions. We would suggest that you follow the statutory route. This will give you an opportunity to investigate those tensions in the Federal system. And then if you are determined to go forward with a constitutional amendment, that you restrict its operation to the Federal system, and that in any event, that oversight of the remedies, which are given to victims, either constitutionally or statutorily, in implementation, thereof, be subject to State determination in the individual jurisdictions, and that any oversight be limited solely to discretionary review by the Supreme Court of the United States, on petition for certiorari.
Thank you very much, Mr. Chairman, for this opportunity. I will be happy to answer any questions.
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[The prepared statement of Judge Weisberger follows:]
PREPARED STATEMENT OF HON. JOSEPH R. WEISBERGER, CHIEF JUSTICE, SUPREME COURT OF RHODE ISLAND, ON BEHALF OF THE CONFERENCE OF CHIEF JUSTICES
Mr. Chairman and Members of the Committee, my Statement is submitted on behalf of the Conference of Chief Justices at the request of the Conference's President, the Honorable Arthur A McGiverin, Chief Justice of the Supreme Court of Iowa. I am Joseph R. Weisberger, Chief Justice of the Supreme Court of Rhode Island and Chairperson of the Conference's Task Force on Victims Rights.
The Conference of Chief Justices (CCJ) is the primary representative of the State courts, providing them with national leadership and a national voice. It is composed of the highest judicial officers of the 56 State, Territorial and Commonwealth court systems and the District of Columbia. CCJ represents the State courts similar to the way that the National Governors Association represents the executive branch of State governments.
This Statement is prompted by an invitation from the House Judiciary Committee to CCJ to comment on the proposals for victims rights embodied in H.J. Res. 71, a proposed Federal constitutional amendment regarding victims rights and H.R. 1322 the Victims Rights Constitutional Amendment Implementation Act of 1997. We are grateful for this opportunity to make our position known to the Committee. This Statement expresses CCJ's long-standing position on issues of sound judicial Federalism, and our escalating concern about the unforeseen and sobering consequences of a U.S. Constitutional preemption of State Constitutions and statutes.
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The Conference of Chief Justices welcomes needed reforms to preserve the rights of victims of crimes and applauds the noble goals of H.J. Res. 71 and H.R. 1322. The Conference supports efforts to accord all rights to victims of crime that are consistent with the paramount duty of insuring public safety by the adjudication of criminal offenders. Those reforms have been or are being passed in every State by statute and State Constitutional provision.(see footnote 1)
Furthermore, all States have some form of statutory guarantee designed for the protection of victims' rights. Information gathered by the National Conference of State Legislatures indicates that there were 51 State enactments in this area in 1995, 61 enactments in 1996, and 33 pieces of legislation pending or passed so far in 1997 (please see Appendix A). We believe that these extensive State efforts provide a significantly more prudent and flexible approach for testing and refining novel legal concepts.
If the search is for a single settled law, the goal will not be achieved through a Federal Constitutional 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, while unnecessarily depriving victims of crime of the thoughtfully reasoned principles and procedures already being developed carefully at the State level.
I might point out, for instance, that in Rhode Island, rights for victims of crime are controlled by provisions of the Rhode Island Constitution Article I sec. 23 which reads as follows:
Page 72 PREV PAGE TOP OF DOCA victim of crime shall, as a matter of right, be treated by agents of the state with dignity, respect and sensitivity during all phases of the criminal justice process. Such person shall be entitled to receive from the perpetrator of the crime, financial compensation for any injury or loss caused by the perpetrator of the crime, and shall receive such other compensation as the state may provide. Before sentencing, a victim shall have the right to address the court regarding the impact which the perpetrator's conduct has had upon the victim.
In addition to this constitutional provision, Rhode Island has adopted an entire chapter detailing victims rights, Chapter 28 of Title 12 of the General Laws of Rhode Island. I have added a copy of this chapter to my Statement (please see Appendix B). You will note that it includes every guarantee that would be found in the proposed Federal constitutional amendment as well as the detailed implementation of H.R. 1322. If H.J. Res. 71 and H.R. 1322 were passed it would have the effect of pre-empting or superseding these provisions of the Rhode Island Constitution and its implementing statutes. At best, the occupation of this field by a Federal constitutional amendment would be redundant and at worst it might lead to ambiguity and confusion until the respective roles of the state and Federal constitutional requirements were set in place by court decision.
Considering only the general concepts behind H.J. Res. 71 and H.R. 1322, the Conference of Chief Justices finds that the Federal statutory approach has a number of distinct advantages over a U.S. Constitutional amendment. Most importantly, a statutory approach is significantly more flexible. It would more easily accommodate a measured approach, and allow for fine tuning if deemed necessary or desirable by Congress after the various concepts in the Act are applied in actual cases across the country. At that point, Congress would have a much clearer picture of which concepts are effective, which are not, and which might actually be counterproductive.
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The statutory approach 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, with its concomitant application to the various State systems. Many of the principles contemplated in the Act represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated.
Up to this time, the rights and protections afforded to citizens under the Constitution were part of the fabric of the law known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the Federal system. It could conceivably take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process. The inherent prudence of a statutory approach is that it enables Congress simply to amend any provisions of the law which, subsequent to enactment, appears in need of refinement.
The statutory approach also would lessen the potential specter of significant surveillance by Federal District Courts of the operations of the State criminal justice systemsat the expense of State Appellate Courts, which could occur with a U.S. Constitutional amendment. For example, the Conference of Chief Justices notes that, under certain Congressional proposals previously introduced, victims would be able to seek injunctive relief against State officials for violation of their new constitutional rights. Such claims are almost inevitably filed in Federal court and may result in significant Federal court supervision of State criminal justice systems for the purpose of enforcing the U.S. Constitutional amendment.
Page 74 PREV PAGE TOP OF DOC The Conference cannot emphasize too strongly our great concern with creating the potential for extensive lower Federal court surveillance of the day to day operations of State law enforcement operations. We note that under Section 2 of H.J. Res. 71, a victim does not have an ability to sue for damages. However, an alternative remedy which could be pursued against State officials would be injunctive relief, and possibly mandamus which, as indicated above, is usually sought in Federal court. This type of litigation is reminiscent of Federal civil rights cases under 42 U.S.C. 1983, which the Congress just recently abolished by statute (Sec. 309 of S. 1041887, P.L. 104317).(see footnote 2)
In our concern with creating new grounds for injunctive relief against State officials, we would like to bring to the attention of the Committee a recommendation offered in a Resolution adopted this past March by the National District Attorneys Association concerning proposed Federal Constitutional Victim Rights Amendment (please see Appendix C). The National District Attorneys Association urges that the abridgment of any right of the victim shall not be a cause for liability or a cause for injunctive relief which affects the ability of the prosecutor to move the case forward effectively to full disposition.
In addition, we note that a similar concern with injunctive relief against State officials was raised in a recent legislative analysis prepared by the National Association of Attorneys General. The recommendations in their analysis call for a prohibition on ''damage suits against government officials and agencies and limitations on injunctive relief regarding matters where prosecutorial or judicial discretion is vital to the operation of an effective criminal justice system:''(see footnote 3)
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It is almost a forgone conclusion that if a Federal victims rights constitutional amendment is enacted, then there would be an increase in oversight by the lower Federal Courts of State officials. This would be particularly true for potential litigation over:
a definition of who is a ''victim'';
a conflict between the right ''to notice of, and not to be excluded from, all public proceedings relating to the crime'' and the common law rationale for witness sequestration;
the parameters over whether a victim could, ''... seek relief from an unreasonable delay of the final disposition of the proceedings relating to the crime''; and,
the implications of the amendment for the numerous States where juvenile proceedings are kept confidential.
There are also numerous practical questions about the ancillary costs of a Federal constitutional amendment for the State court systems. For instance, it is not clear which State entity would be responsible for the notice requirements proposed in H.J. Res. 71. Under State procedures at the present time, the State executive agencies, often the prosecutors' offices, perform this function. An Amendment also raises resource issues for States handling indigent crime victims and their need for court-appointed counsel. All of these issues eventually would involve increased conflicts between State and Federal judiciaries similar to the habeas corpus litigation of the past.
Page 76 PREV PAGE TOP OF DOC Not of least concern, a statutory approach holds a more immediate advantage to victims who, under the proposed amendment approach, may wait years for relief during the lengthy and uncertain ratification process required under H.J. Res. 71. At the present time the States are actively involved in accommodating the rights of victims, some law enforcement duties and the rights of defendants. The resolution and balance of these tensions has brought into play considerable delicate decision-making. The balancing of victims' and defendants' rights in particular is not a simple task, but the State courts already are making these determinations as they arise.
It is the position of our Conference that the protection of victims' rights emanates from the general police power of the States. Since the Federal government does not have this power, it should leave this constitutional issue to the States.
I do not believe there is really any question that the Founding Fathers envisioned a criminal justice system administered primarily at the State level. As a matter of fact, only three areas of Federal crimes are specifically mentioned in the Constitution: (1) counterfeiting of securities and currency; (2) Piracies and Felonies committed on the high seas and offenses against the Law of Nations; and (3) treason. Since that time there has been a slow but inexorable expansion of the Federal involvement in the criminal area, usually through an expansive interpretation of the Commerce clause (U.S. Constitution, Art. I, Sec. 8, cl. 3). However, even the Constitutionality of this intervention is being increasingly questioned. For instance, in striking down a Federal law regulating guns in a local school zone, the U.S. Supreme Court recently held that:
We start with first principles, The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art I, Sec. 8. As James Madison wrote, ''(t)he powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.''(see footnote 4)
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In the event that the House of Representatives is determined to embark upon the process of a constitutional amendment, the Conference of Chief Justices recommends that its provisions be applicable only to Federal criminal proceedings. In this way, experience in these novel concepts would be gained within the Federal judiciary concerning the identification of and solution to problems that would invariably arise in this 5% cross section of criminal cases.
The Conference recognizes that H.J. Res. 71 in its present form would be applicable both to the Federal and to the State judiciaries. Section 3 of H.J. Res. 71 provides that ''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 when required by the public interest.'' The Conference would urge the Committee, in light of the Supremacy clause, to clarify this section by providing that Congress shall pass no statute designed to enforce this article in respect to State proceedings. Such power should be exercised only by State Legislatures within their respective jurisdictions. The Conference would further urge your Committee to include language that would prohibit Federal judicial oversight of the implementation of this article in the State courts save by the Supreme Court of the United States through its discretionary review by writ of certiorari.
We in the State justice systems are very concerned and active in protecting victims' rights. H.J. Res. 71, the proposed U.S. Constitutional Amendment is a radical departure from our current legal regime, and is neither justified by experience nor wise as a matter of policy.
I would earnestly suggest that this Committee consider recommending to the House of Representatives a comprehensive victims rights statute regarding the Federal system. This statute would then set in place a framework for the implementation and enforcement of victims' rights within the judiciary. The experience thus gained would expose the strengths and weaknesses of the proposed Federal legislation without the cumbersome mechanics required for a Federal Constitutional Amendment.
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Once again, I thank you for this opportunity to convey the thoughts of the Conference of Chief Justices on this most important issue. I will consider any questions that Committee members may have.
APPENDIX A.''STATE LEGISLATIVE ENACTMENTS FOR VICTIMS' RIGHT, 19951997''
1997 CRIMINAL JUSTICE ENACTMENTSNCSL
Victims and Witnesses
AR H.B. 1063, Last-Action: March 21, 1997; Signed by Governor, Requires prosecuting attorneys to notify victims of critical events in the criminal justice process.
AR H.B. 1309, Last-Action: March 26, 1997; Signed by Governor, Includes residents of Arkansas who are injured or killed by an act of terrorism in the definition of ''victim'' for purposes of the Arkansas Crime Victims Reparations Act.
AR H.B. 1834, Last-Action: March 27, 1997; Signed by Governor, Changes the definition of ''victim'' with regard to crime victims reparation.
AR S.B. 188, Last-Action: March 5, 1997; Signed by Governor, Provides civil relief to victims of crime.
AR S.B. 575, Last-Action: March 31, 1997; Signed by Governor, Revises the procedures and requirements for release of inmates to jail facilities; provides for notice of releases to prosecutors and victims.
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AR S.B. 650, Last-Action: April 4, 1997; Signed by Governor, Authorizes crime victims to testify by video before the Post Prison Transfer Board.
CO S.B. 34, Last-Action: March 21, 1997; Signed by Governor, Relates to the rights of families of homicide victims; clarifies that members of the family of a homicide victim have the right to testify at the penalty phase of a class 1 felony trial.
DE H.B. 36, Last-Action: April 7, 1997; Signed by Governor, Makes it clear that a Delaware resident who is the victim of an act of terrorism, committed outside the United States, may receive assistance under the Crime Victim Compensation Act.
GA H.B. 324, Last-Action: April 1, 1997; *****To Governor, Requires all courts to impose costs against criminal offense and ordinance violations for funding victim assistance programs.
GA S.B. 90, Last-Action: April 4, 1997; Signed by Governor, Relates to victim compensation, so as to provide for eligibility for compensation of victims of certain crimes committed outside the state.
IA S.B. 251, Last-Action: March 31, 1997; Signed by Governor, Provides for compensation to victims of international terrorism who are residents of Iowa and provides an effective date; provides that benefits are effective for crimes committed outside of the United States.
Page 80 PREV PAGE TOP OF DOC ID H.B. 254, Last-Action: March 5, 1997; Signed by Governor, Relates to restitution for crime victims; defines victims to include the crime victims compensation account and certain third parties making payments to or on behalf of a directly injured victim and to provide for restitution to the directly injured victim of losses not paid by a third party and to make a technical correction; provides for payment by the convicted person to the crime victims compensation account of benefits paid to or on behalf of victims and their dependents.
ID S.B. 1060, Last-Action: March 15, 1997; Signed by Governor, Relates to crime victims compensation; amends existing law to add terrorism to definition of criminally injurious conduct under the crime victims compensation act.
KS H.B. 2211, Last-Action: March 31, 1997; Signed by Governor, Concerns criminal procedure and the Kansas parole board; deletes certain sections; provides the governor may pardon or commute the sentence of any person convicted of a crime in this state upon such terms and conditions as prescribed; requires notification of prosecuting attorney and the judge of the court in which the defendant was convicted and any victim of the crime and or the family of the victim; provides for the duties of the secretary of corrections; requires publication. (Also see Parole/Community Supervision).
MD H.B. 187, Last-Action: April 18, 1997; Signed by Governor, Includes as a crime, for purposes of the Criminal Injuries Compensation law, an act committed in a foreign country against a resident of this State that is a terrorist act under federal law.
MD S.B. 173, Last-Action: April 7, 1997; Eligible for Governor's desk, Expands and clarifies the right of victims to participate in sentencing and parole hearings and to be notified of various proceedings concerning the defendant; expands certain victim's rights laws to include juvenile proceedings and victims who file a notification request form; establishes that specified evidence relating to a victim's prior sexual conduct is not admissible in a prosecution for attempted rape or attempted sexual offense in the first or second degree.
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ME H.B. 227, Last-Action: March 27, 1997; Signed by Governor, Public Law No. 30., (LD 291) Concerns defendants' ability to attack orders of restitution (Also see Probation/Alternatives)
MS H.B. 482, Last-Action: April 1, 1997; Eligible for Governor's desk, Provides that the owner of stolen goods which are pawned shall not be liable for the pledged amount if the rightful owner can provide that the stolen items are his; allows the district attorney to prosecute the person who pawned the stolen goods for any applicable criminal violations if the identity of the person can be proven.
MT H.B. 540, Last-Action: April 1, 1997; Signed by Governor, clarifies laws requiring criminals to pay restitution to their victims; requires restitution to be paid in full; provides that the duty to pay restitution remains with the criminal until restitution is paid; provides credit for community service by a criminal unable to pay restitution; allows a court to take action to ensure that assets of a person charged with a crime can be used to pay restitution are not dissipated. (Also see Probation/Alternatives)
MT S.B. 54, Last-Action: April 1, 1997; Signed by Governor, Revises the laws pertaining to crime victims and victims compensation; prohibits imposition of charges for filing a petition for an order of protection; provides that a victim must be given notice of an opportunity to be heard on a petition for destruction, disposal or use of evidence; clarifies that restitution payments will be made to the crime victim's compensation and assistance account if the account has paid benefits to the victim.
Page 82 PREV PAGE TOP OF DOC NM S.B. 774, Last-Action: March 21, 1997; Eligible for Governor's desk, Relates to criminal sentencing; increases penalties for bribery or intimidation of a witness or retaliation against a witness.
NM S.B. 1150, Last-Action: March 21, 1997; Eligible for Governor's desk, Relates to Crime Victims Reparation; amends eligibility requirements for persons who seek reparation awards.
SD H.B. 1267, Last-Action: March 11, 1997; Signed by Governor, Requires the convicted offenders pay restitution to victims.
SD S.B. 68, Last-Action: February 6, 1997; Signed by Governor, Relates to moving the Crime Victims Compensation Program from the Department of Corrections to the Department of Social Services.
UT H.B. 121, Last-Action: March 21, 1997; Signed by Governor, Relates to Criminal Justice Board and Commissions Amendments. Integrates the anti-violence subcommittee into the four remaining committees of the Utah Substance Abuse and Anti-Violence Coordinating Council; clarifies the Crime Victims' Reparations Board provisions by extending the definition of victim to include those injured physically and psychologically in the zone of danger, lengthens the period of eligibility for discovery of remains of homicide victims. (Also see Miscellaneous.)
VA H.B. 150, Last-Action: March 19, 1997; Signed by Governor, Relates to satisfaction and discharge of criminal assault charge; provides that an assault charge against a family or household member may not be dismissed upon a satisfaction and discharge; the acknowledgment by the victim that he has been compensated for the civil wrong will not suffice to dismiss the criminal charge.
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VA H.B. 2174, Last-Action: March 22, 1997; Signed by Governor, Requires arresting officers or any public safety officer who is being assisted by a private citizen to be the one to implement the procedures set forth in this law on behalf of victims of or witnesses to the specific crime or any person providing assistance to a public safety agency employee, if such victims or witnesses or assisting persons have possibly been exposed to blood-borne pathogens as a result of the specific crime or specific circumstances.
VA H.B. 2545, Last-Action: April 2, 1997; Senate accepts Governor's, Requires the appointment of a victim of crime to the Criminal Justices Services Board, the Virginia Criminal Sentencing Commission, and the Parole Board.
VA S.B. 936, Last-Action: March 19, 1997; Signed by Governor, Requires health care providers, upon request, to give medical reports to the Workers' Compensation Commission for the Criminal Injuries Compensation Fund relating to an injury upon which a claim is based; defines ''victim'' to allow recovery from the fund by a person who suffers emotional injury as a result of being stalked. (Also see Stalking and Harassment.)
WY H.B. 208, Last-Action: February 28, 1997; Signed by Governor, Relates to Crime Victims Compensation; provides a mechanism whereby profits from a criminal act that are received by a person convicted of the crime are available as restitution.
WY S.B. 65, Last-Action: February 25, 1997; Signed by Governor, Relates to Crime Victims Compensation Act; authorizes compensation to residents of the state who are injured or killed by acts of terrorism committed outside the United States.
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Victims and WitnessesChild Victims
GA H.B. 211, Last-Action: April 1, 1997; *****To Governor, Relates to child molestation and aggravated child molestation, so as to authorize the court to require that a person convicted of a first offense of aggravated child molestation when the victim is 14 years of age or younger at a time of the offense undergo medroxyprogesterorne acetate treatment or its chemical equivalent as a condition of eligibility for probation; provides for informed consent, for immunity for providers, for outpatient mental health treatment and costs. (Also see Sex OffendersGeneral and Sex OffendersChild Related.)
UT H.B. 92, Last-Action: March 21, 1997; Signed by Governor, Relates to the Criminal Code; defines the crime of child abuse; makes it a criminal offense to commit a crime of domestic violence in the presence of a child. (Also see Miscellaneous.)
1996 CRIMINAL JUSTICE ENACTMENTSNCSL
AL H. 552, Guin: Allows members of a victim's immediate family to be present at an execution. Status: 05/28/96. Signed by Governor. (See also Capital Crimes/Capital Punishment.)
AZ S. 1166, Noland: Extends the rights of victims in cases involving juveniles to include all postadjudication release, review and appellate proceedings and the discharge of all proceedings related to restitution. In cases involving both adults and juveniles, if the victim is physically or emotionally unable to request or waive rights, the agency shall note this on a form and other agencies shall presume that the victim has not waived the rights. Status: 04/12/96. Signed by Governor.
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CA A. 1205, Morrissey: Provides that upon conviction of a felony for theft, embezzlement, or extortion the fact that the victim was an elder or dependent adult is a circumstance in aggravation. (See also SentencingGeneral.)
CT S. 615, Committee on the Judiciary: Requires information regarding an inmate's release be provided to the victim prior to, rather than after, release; extends to thirty days the time period for review of a determination on an application for compensation or restitution services; allows the Office of Victim Services computer access to information held by criminal justice agencies for the purpose of victim notification. Status: 05/08/96. Signed by Governor.
DE H. 208, Expands the definition of victim to include qualifying neighborhood or homeowners associations. Includes provision for residents of neighborhoods where illegal drug activity occurs to be entitled to the rights, privileges and notice requirements to other victims. Outlines notification requirements for neighborhood of homeowners' groups. Status: Signed by Governor.
FL H. 2215, Stafford: Requires the Department of Juvenile Justice to develop and implement guidelines for notifying victims and witnesses of the release of certain defendants. Revises guidelines for awards and increases the maximum amounts of awards. Provides conforming references with respect to the juvenile justice system. Provides for awards by Legal Affairs Dept. to elderly persons or disabled adults for property loss, under specified circumstances. Status: 05/30/96. Became law without Governor's signature. (See also Juvenile Justice-General.)
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HI H. 2526, Amaral: Includes the prevention of domestic and sexual violence and the protection and treatment of victims of domestic and sexual violence as responsibilities of the Department of Health. Creates an ad hoc Committee on Domestic and Sexual Violence to develop a transition plan for the continuation of prevention and protection programs. Status: 06/17/96. Signed by Governor.
IA S. 2430, Committee on Judiciary: Requires the juvenile court to provide certain information to a victim of a juvenile delinquent act, including the names and addresses of the child and of the child's custodial parent or guardian, the rights to restitution, and the availability of assistance through the crime victim compensation program. Status: 04/16/96. Signed by Governor.
ID H. 553, Committee on Judiciary, Rules: Amends existing law to enhance penalties for battery if the victim is pregnant and the defendant knows this information. Status: 03/14/96. Signed by Governor. (See also SentencingGeneral.)
ID S. 1426, Committee on Judiciary: Requires a report containing the results of an inquiry into the home environment, past history, competency development, prevention and placement services provided, and the social, physical and mental condition prior to an entry of an order of adjudication. Establishes dispositional options for the juvenile offender based on this report. Requires the court to levy fees against the juvenile for every petition filed against him/her. Includes provisions for restitution to victims and parental responsibility for this restitution. Status: 03/18/96. Signed by Governor. (See also Juvenile JusticeGeneral, Juvenile JusticeParental Responsibility.)
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IL H. 3669, Ciarlo et al.: A crime victim or ''any other concerned citizen'' may get from the Prisoner Review Board a recent photograph of a convicted felon being released. Status: 06/18/96. P.A. 89481 Signed by Governor.
KS H. 2012/Kline Phill: Relates to restitution paid to the victims. Requires restitution be ordered to a victim of a crime, whether caused by an adult defendant or a juvenile offender. Restitution will be enforced the same as a civil judgment and will not be dischargeable in bankruptcy. Allows the Parole Board to set aside restitution if there are compelling circumstances that would make such a plan unworkable. Status: 05/03/1996. to Governor. Signed by Governor.
KY H. 309, Nunn: Addresses domestic violence; requires training of Department of Social Services staff; establishes training for staff of agencies providing protective shelter services for victims of domestic violence; develops training courses for mental and health care providers; revises membership of the Crime Victims Compensation Board; requires training for Commonwealth's and county attorneys; requires development of prosecutor's and law enforcement manuals; requires agency statements. Status: 03/12/96. Signed by Governor.
KY S. 108/Green: Relates to confinement release notification; creates a new section of statute to require Department of Corrections to operate or contract for the operation of a prisoner release notification system; amends statute relating to causes of action for failure to notify crime victim to provide immunity from civil and criminal liability for failure to do so; amends various other sections to conform. Status: 03/26/1996. Signed by Governor.
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MD H. 530, Sponsor?: Allows the Criminal Injuries Compensation Board to adopt procedures for the review and evaluation of claims. Adds psychological or emotional injuries resulting from sexual assault or child abuse to those injuries for which the Board may make an award. Status: Signed by Governor.
MD S. 254, Collins: Allows the victim of a violent crime or the victims' representative to present oral testimony at a parole hearing of the offender. Establishes the authority of the Parole Commission to determine the manner in which such testimony may be given. Requires that the hearing examiner and parole Commission member to consider the testimony of the victim before reaching a decision. Status: Signed by Governor. (See also Parole/Community Supervision.)
MD S. 456 (Same as H 576): Reorganizes existing law concerning victims and witnesses of crime currently found in various sections of the Annotated Code of Maryland. Status: Signed by Governor.
MD S. 741, Miller: Extends for Fiscal Year 1997 authorization for the collection of an addition $5 court cost from defendants who are found guilty, enter a plea of guild or nolo contendre, or are given probation before any judgment for an offense under criminal or motor vehicle law to be credited to the Maryland Victims of Crime Fund. Status: Signed by Governor. (See also Offender Fees.)
ME H. 1234 (LD 1694), Kerr: Concerns juveniles adjudicated to have committed gross sexual assault. Authorized sharing of records to the Department of Human Services, law enforcement agencies, relevant school administrators and others whom the Department of Corrections determines is appropriate to ensure public safety. Requires a diagnostic evaluation for offenders adjudicated with crimes of gross sexual assault. Makes provisions for victims and restitution. Status: 04/11/96. Signed by Governor. (See also Juvenile JusticeRecords/Proceedings, Sex OffendersJuvenile Sex Offenders.)
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ME H. 1263 (LD 1738), Wheeler: Requires prisoners to pay their fair share of victim restitution. Status: 03/12/96. Signed by Governor. (See also Offender Fees.)
MI S. 346/Steil: Notifies victim of name change by criminal. Status: 03/04/1996 Signed by Governor. Public Act 106.
MN H. 3242/S. 2856 Omnibus Crime Bill includes provisions to provide victims with access to 24-hour crisis intervention, safe housing, counseling and peer support, legal assistance, medical care. Also creates ''crime victim services roundtable'' at which several state agencies and organizations that deal with crime victims meet four times a year to discuss methods for improving delivery of services, increased funding for victims services. Chapter 408, Article 7, Sec. 11. Bill also creates pilot program ''group conferencing'' as an administrative alternatives to courtroom prosecution. Alleged offenders will meet with victims family members of victims, law enforcement, prosecutors, others to discuss impact of the crime on the victim and the community, and the group with determine an appropriate sanction in which the offender makes reparations. Chapter 408, Article 2, Section 9.
MN H. 2847/S. 2275 Provides further for warnings to victims of domestic abuse when the perpetrator is about to be released from custody. Extends notification to local battered women's shelters, sexual assault programs, and local law enforcement agencies involved with the case, with the intention of increasing changes of reaching victims who may not be at their usual residence following an assault. Also provides that prosecutors must represent to the judge relevant information regarding the victim's account of the alleged domestic abuse crime before the court decides whether to grant pretrial release. Chapter 380.
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MS H. 451, Moody: Requires that notification to be sent to the victim at least 10 days before the sex offender is released from prison. Status: 03/18/96. Signed by Governor. (See also Sex OffendersRegistration and Notification.)
MS H. 1040, Rotenberrry: Creates felony offense and order restitution for auto theft makes exemptions for enforcement of a security interest in a vehicle. Status: 04/12/96. Signed by Governor. (See also Miscellaneous.)
MS S. 2050, Frazier: Revises certain definitions under the Mississippi Crime Victims' Compensation Act; for establishes the position of victim compensation director; revises the duties of the victim compensation director and provides for an internal appellate process; revise the circumstances under which compensation shall not be awarded; limits a claimant's recovery for economic loss; revises the penalty for false claims; and for related purposes. Status: 04/12/96. Signed by Governor.
NE L. 1213, Pirsch: Addresses law enforcement agencies; requires payment of forensic medical examination of victims of sexual assault. Status: 04/12/96. Signed by Governor.
NH H. 301, Synder: Mandates the exclusion of evidence relative to the victim's manner of dress in sexual assault cases. Status: 03/18/96. Signed by Governor.
NH H. 1291, Mirski: Requires courts to order persons convicted of criminal mischief and minors who have committed vandalism to pay restitution to the victim and to perform community service; requires courts in certain circumstances to order parents of minors convicted of vandalism to pay restitution to the victim; authorizes courts to require restitution by minors and parents of minors if the minor has been found to have committed vandalism. Status: 06/10/96 Signed by Governor. (See also Juvenile JusticeGraffiti/Vandalism, Juvenile JusticeParental Responsibility, Probation/Alternatives.)
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NY A. 2593 (Same as S. 6909), Robach: Allows a family member of a person killed by a defendant not charged with homicide to speak at the defendant's sentencing. Status: 06/18/96. Signed by Governor.
NY S. 3769 (Same as A. 4306), Volker: Prohibits the requesting of any victim of sexual assault to submit to a polygraph test. Status: 02/27/06. Signed by Governor.
NY S. 6135, Maltese: Broadens application of the law that permits family members or guardian of a crime victim to make a statement before sentencing of a defendant. By removing the words ''a child'' from current law, the right of family members or guardians to speak on behalf of a victim would not be limited by the age of that victim. Ch. 198.
NY S. 6909, Alesi: Allows family members of a deceased crime victim to speak at the sentencing of a defendant who killed that victim but is charged with a crime other than homicide. Ch. 173.
OH H. 363 Prohibits granting an award of reparations if the victim or claimant is convicted of a felony or, or engaged in felonious conduct during the pendency of the claim or if the victim through whom a claimant claims an award was convicted of a felony or engaged in felonious conduct within ten years prior to the criminally injurious conduct that is the basis of the claim. L447.
OK H. 2692, Benson Strengthens role of the Office of Juvenile Affair in alleviating juvenile crime. Allows for the creation of juvenile work programs and requires that the juvenile pay 75 percent to the earnings to the victim; creates a pilot program for Community Intervention Centers, which are receiving centers for children who are taken into custody, and provides for limited, short-term holding of juveniles; requires students expelled from school be placed in supervised, structured settings which provide education and monitoring of the student; and requires that every school district by 20002001 school year provide alternative education programs for at-risk students. Status: 05/28/96. Signed by Governor. (See also Probation/Alternative's Victims.)
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OK SJR 24, Douglass: Proposes constitutional amendment providing for a Bill of Rights for victims that ensures them a role in the criminal justice process. Requires that victims and their families be informed when the accused or convicted person is released or has escaped from incarceration, to be notified of all court proceedings and be awarded restitution by the convicted person for damages or losses. Status: 04/24/96. Enrolled.
SC H. 4344, Jennings: Relates to disposition of juvenile cases; deletes the cap on the amount of restitution that a court may order a juvenile to pay; provides that this amount is in the court's discretion; provides factors to be considered in amount established. Status: 06/18/96. Signed by Governor.
SC S. 1050, McConnell: Relates to the Declaration of Rights; provides for a ''Victim's Bill of Rights''; proposes an amendment to the Constitution; relates to the right of bail, cruel or unusual punishment, and detention of witnesses; provides that bail may be denied to persons charged with violent offenses. Status: 05/30/96. Passed Both Houses. (See also Bail.)
SC S. 1293, Thomas: Provides that all law enforcement agencies shall provide crime victims with a copy of the crime incident report relating to their case; requires a criminal sentencing judge to apply amounts forfeited to the court toward the payment of restitution; requires the State Supreme Court to promulgate rules to allow an appeal of certain court orders if a victim impact statement was not considered by the court or if a reasonable amount of restitution was not ordered. Status: 06/04/96. Signed by Governor.
Page 93 PREV PAGE TOP OF DOC SD H. 1099, Committee on Judiciary: Allows the court to order certain juveniles to make restitution for medical expenses. Status: 02/05/96. Signed by Governor. (See also Juvenile JusticeGeneral.)
SD H. 1162, Matthews: Revised certain provisions relating to the suppression of names and details in rape, incest, and sexual contact prosecutions until the accused is arraigned, the charge is dismissed or the case is otherwise concluded. Status: 03/04/96. Signed by Governor.
SD H. 1245, Hunt: Permits the victims of crimes committed by juveniles to attend juvenile hearings. Status: 02/15/96. Signed by Governor. (See also Juvenile JusticeRecords/Proceedings.)
SD S. 273, Committee on State Affairs: Establishes a new parole system for inmates of the adult prison system. Requires the Department of Corrections to develop files on the history of a defendant, including record of conduct and infraction. Outlines duties of the Executive Director of the Board of Pardons and Paroles. Establishes criteria for initial parole dates and minimum sentences. provides for parolee restitution in some cases. Adds provisions for victim notification for parole hearings and offender's release. Includes provisions for testimony at certain hearings when the offender poses danger to the community. Status: 03/08/96. Signed by Governor. (See also Parole/Community Supervision.)
TN H. 2758, Purcell, Jones: Requires determination of monetary damages actually resulting from an adjudicated juvenile's conduct. Allows the court to order the child to make restitution for such damages. Requires the Tennessee Commission on Children and Youth to review existing restitution programs from around the country and report to the Assembly in the 1997 legislative Session. Status: 05/13/96. Signed by Governor. (See also Juvenile Justice-General.)
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TN S. 2633 (Same a H. 2074), Haynes: Authorizes payment of restitution to victims as an additional punishment for criminal offenses; institutes sentencing requirements for restitution payment including payment to victim's next-of-kin in cases where victim is deceased. Status: 04/02/96. Signed by Governor.
UT H. 378, Chard: Addresses restitution amendments. Allows unclaimed restitution for crime victims to be transferred to the Crime Victims' Reparations Trust Fund. Requires the Department of Corrections to promulgate rules regarding restitution payments. Status: 03/15/96. Signed by Governor.
UT S. 44: Enacts the Juvenile Court Act of 1996. Establishes the juvenile court. Creates the Board of Juvenile Court Judges to establish uniform rules and practices for the operation of the juvenile court system. Requires the administrator of the juvenile court to obtain mental health and health services for juveniles alleged and adjudicated delinquent and in need of these services. Obligates the adjudicated offender to pay for the treatment of the victim of child abuse or child sexual abuse. Requires parents to attend juvenile court hearings. Gives victims access to juvenile hearings; allows the court to exclude the general public. Allows waiver to adult criminal court at age 16 for certain crimes; provides criteria for the juvenile court to consider before jurisdiction transfer. Allows photographing, fingerprinting and/or HIV testing of juveniles age 14 or older; provides for their expungement. Status: Signed by Governor (See also Juvenile Justice1995 Criminal Justice EnactmentsNCSL.)
1995 CRIMINAL JUSTICE ENACTMENTSNCSL
Page 95 PREV PAGE TOP OF DOC Corrections. The Office also will supervise the victim notification presently conducted by the Board. 3/22/95 Signed by Governor. Act 8 of Special Session 1 of 1995.
RI H. 6634/Ferguson Simonian: Requires a person to make full restitution, or make arrangements to pay full restitution, prior to being eligible for parole, community confinement, or work release; places the burden of showing that full restitution has been made on the convicted person. Status: 06/26/95. Signed by Governor. (See also Parole/Community Supervision.)
SC H. 3096/Thomas: Relates to prisoners; defines ''no parole offense;'' provides conditions a prisoner must meet to become eligible for early release; revises the agencies whose victim restitution programs are coordinated by the State Office of Victim Assistance; provides for other related matters. Status: 06/07/95. Signed by Governor. (See also Parole/Community Supervision and SentencingGeneral.)
SC S. 180/Rose: Requires the Director of the Department of Probation, Pardon and Parole to develop written policies and procedures for parole hearings to be held by video camera. Allows crime victim for which a prisoner has been sentenced to submit on film, video tape, or other electronic means or in the form of a recording or testimony at the prisoner's parole hearing information for consideration by the Board of Probation, Pardon and Parole. Allows the same procedure for the prosecuting solicitor. Signed by Governor. (See also Parole/Community Supervision.)
SD S. 46: Expands rights of victims of crime to include notice of release from incarceration. Status: 02/10/95. Signed by Governor.
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TX S. 39/Brown: Authorizes court statement by crime victim or victim's relative/guardian.
TX S. 46/Shapiro: Adds the right of notification of escape to a crime victim's rights.
TX S. 48/Shapiro: Relates to crime victim's right to appear in person before a parole panel of the Board of Pardons and Paroles. Status: 05/29/95. Signed by Governor. (See also Parole Community Supervision.)
TX S. 1049/Whitmire: Relates to comprehensive revisions to the Code of Criminal Procedure and the Crime Victims' Compensation Act; provides for civil and administrative penalties. Status: 06/16/95. Signed by Governor. (See also Other.)
WA H. 1047/Sheahan: Directs the court to identify in the judgment and sentence the victim(s) entitled to restitution and what amount is due each victim. Authorizes enforcement of the court-ordered restitution in the same manner as a judgment in a civil action. Status: 05/05/95. Signed by Governor.
WA H. 1610/Delvin Costa: Increases involvement of victims in criminal prosecutions; directs a court to inquire on the record whether the reasons for a plea agreement have been communicated to the victims in all offenses covered by the plea agreement; authorizes discussions with a victim regarding the selection or disposition of charges prior to filing. Status: 05/09/95. Signed by Governor.
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WA H. 1858/Ballasiotes: Establishes the office of crime victims advocacy in the Department of Community, Trade, and Economic Development; directs the office to administer grant programs for sexual assault treatment and prevention services. Status: 05/05/95. Signed by Governor.
1996 CRIMINAL JUSTICE ENACTMENTNCSL
General, Juvenile JusticeParental Responsibility, Juvenile JusticeRecords/Proceedings, Juvenile JusticeWaiver, Offender Fees, Sex OffendersChild Related.
UT S. 213, Hillyard: Repeals provisions on proceeds received by criminals. Enacts provisions on the court's and board of pardons and parole's authority to prohibit profit-making from speech about criminal conduct. Creates the court's option to create a condition of sentence or probation. Creates the Board's option to create a parole. Establishes penalties and makes technical changes. Status: 03/12/96. Signed by Governor. (See also Parole/Community Supervision.)
VA H. 251, Jones J.: Broadens application of the serious juvenile offender statute and clarifies that the circuit court can commit juveniles under the serious offender statute. Requires notice of release hearings be given to victims of such offenders and allows the transfer of certain such offenders and allows the transfer of certain such offenders to the youthful offender program. Opens juvenile court transfer hearings to the public. Requires mental health screening for juveniles placed in secure detention. Status: 04/06/96. Signed by Governor. (See also Juvenile JusticeGeneral, Juvenile JusticeRecords/Proceedings, Juvenile JusticeYouthful Offender Programs/Extended Jurisdiction.)
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VA H. 554, McDonnell: Requires certain funds collected from convicted criminals and traffic defendants are payable to the Victim-Witness Fund and crime victim compensation fund whether or not the offenses are charged as violations of the Code of local ordinances. Status: 04/17/96. Became law without Governor's signature.
VA H. 555, McDonnell: Allows the court to require that interest be paid on any restitution ordered, from the date of the loss or injury at the judgment rate of interest. Status: 04/03/96. Signed by Governor.
VA H. 556, McDonnell: Requires a Victim Impact Statement, when one is not ordered by the court as a part of a presentence investigation, shall be submitted on request of a victim and shall be prepared by the victim or his designee. Status: 03/31/96. Signed by Governor.
VA S. 15, Potts: Allows imposition of the death penalty in any case involving the willful, deliberate premeditated killing of another in the commission of an abduction for pecuniary gain or with intent to defile. Currently, the victim of this offense must be under age 12 in order to invoke the capital murder statute. The bill also creates a new capital offense that involves the willful, deliberate, premeditated killing of a child 15 or younger. Status: 04/10/96. Signed by Governor. (See also Capital Crimes/Capital Punishment.)
VA S. 44, Earley: Prescribes a procedure for treating certain habitual and violent juvenile offenders as adults for trial and sentencing by circuit court; determines that, if the family or juvenile court to be a chronic or violent offender, the district court is limited a preliminary hearing, but the juvenile may challenge the determination of being chronic or violent. Makes provisions for risk and need assessment for juvenile offenders, graduated sanctions. Requires parents, in some cases, to pay for support and/or treatment of incarcerated juvenile. Requires notification of the offenders' hearings to victims. Requires notification of school officials of juvenile incarceration. Makes provisions for juvenile offenders to report to the state's Sex Offender Registry. Status: 04/17/96. Became law without Governor's signature. (See also Juvenile JusticeGeneral, Juvenile JusticeParental Responsibility, Juvenile JusticeRecords/Proceedings, Juvenile JusticeWaiver, Sex OffendersJuvenile Sex Offenders.)
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VA SJR 49, Earley: Adds a provision to the Virginia Bill of Rights to accord the victims of crime certain rights as may be defined and provided by law by the General Assembly. The amendment provides that victims of crime should be afforded fair and respectful treatment by public officers and employees, restitution for harm, protection from further harm, information on relevant judicial proceedings and on the releases and escape of the offender. Status: 02/23/96.
VT S. 33, Sweetser et al.: Creates a Victims Bill of Rights; makes the Rape Shield Law applicable in lewd and lascivious conduct cases, and in civil cases involving actions arising from wrongful sexual activity and in Professional Licensing Board administrative hearings; revises the Vermont Rules of Criminal Procedure relating to severance of defendants. Status: 05/15/96. Signed by Governor. (See also Sex OffendersGeneral.)
WA H. 2358, Costa: Increases penalty assessments to support crime victim and witness support programs. Status: 03/21/96. Signed by Governor.
WA H. 2580, Costa: Addresses restitution to victims of juvenile crime. Requires a diversion agreement between the juvenile and a diversionary unit in lieu of prosecution. Diversion agreements may consist of community service, restitution, counseling or a fine, among others. Establishes a payment plan for continuing restitution after the expiration of the diversion agreement. Outlines authority and responsibilities of diversionary units. Status: 02/29/96. Signed by Governor. (See also Juvenile JusticeGeneral, Probation/Alternatives.)
Page 100 PREV PAGE TOP OF DOC WA H. 2652, Ballasiotes: Declares that the paramount factor to be considered is to obtain compensation owed by the patient to victims of his or her criminally insane conduct. Status: 03/21/96. Signed by Governor.
WI A. 448, Albers: Addresses restitution payments for future counseling costs for sexual assault victims and certain child victims. Status: 03/20/96. Signed by Governor. (See also VictimsChild Victims.)
WI S. 181, Jauoh: Relates to the presence of a victim's service representative at interviews and meetings. Status: 04/16/96. Signed by Governor.
WV H. 4141, Givens: Establishes a Central Abuse Registry containing the names of individuals convicted of a felony or misdemeanor offense with respect to a child or an incapacitated adult. Status: 03/25/96. Signed by Governor. (See also Victims-Child Victims.)
WV S. 130, Bowman: Requires sex offender registration and notification. Expands crimes for which offenders must register to include individuals attempting to commit various sex offenses. Requires the state police to maintain the central registry. Allows access to registry information to victims, local law enforcement, school officials, protective services officers, community and religious organizations and to interested resident in some cases. Status: 03/25/96. Signed by Governor. (See also Sex OffendersRegistration and Notification.)
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AZ S. 1151, Noland: Relates to the law making it illegal for one who has been convicted of a dangerous crime against children not to disclose that fact when applying for a job involving children, is expanded to require disclosure as well by one who has been convicted of criminal child abuse. Status: 04/09/96. Signed by Governor.
GA S. 396, Johnson, Clay: Relates offenses against public health and morality, changes the penalties for contributing to the deprivation of a minor. Status: 04/01/96. Signed by Governor.
GA S. 575, Clay: Addresses persons and agencies permitted access to records of child abuse, or sexual harassment of children, gives access to such records by certain child advocacy centers. Status: 04/15/96 Signed by Governor (See also Sex OffendersChild Related.)
ID H. 711, Committee on Judiciary: Adds to existing law to provide for termination of the parent/child relationship where the parent's criminal act caused the conception of the child, where the surviving parent killed the other parent or the parent is in prison without the possibility of parole. Status: 03/20/95. Signed by Governor.
ME H. 1211 (LD 1661), Peavey: Increases the penalty for criminal restraint of a young child or a dependent person. Status: 04/11/96. Signed by Governor.
MS H. 403, Ford, Holland: Relates to Child Abuse; revises criminal records check for child care agencies. Requires certain entities providing childcare to obtain fingerprinting and felony conviction record information for each applicant, employee or volunteer. Prohibits the employment of persons convicted of certain offenses. Status: 04/12/96. Signed by Governor.
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ND S. 2090, Requires that files and records of the juvenile court are open for employee inspection when necessary to investigate the background of an individual living or working in the facility, home or residence for which a license is sought for a foster home or early childhood facility. Status: Signed by Governor. (See also Juvenile JusticeRecords/Proceedings.)
1995 CRIMINAL JUSTICE ENACTMENTNCSL
AL H. 573/Moore: Relates to the Twelfth Judicial Circuit of Alabama; authorizes the District Attorney to establish a Restitution Recovery Division within the Office of the District Attorney; provides for collection and the enforcement of court orders in certain cases of nonpayment of restitution to victims of crime, court costs, fines, penalty payments, victim compensation assessments, and bond forfeitures; provides a collection fee, provides funding for the new Restitution Recovery Division. Status: 07/17/95. Signed by Governor. (See also Probation/Alternatives.)
AL H. 732/Guin Hogan: Relates to Walker County; authorizes the district attorney to establish a ''Municipal Restitution Recovery Division'' within the Office of the District Attorney; provides for collection and enforcement of court orders in certain cases of nonpayment of restitution to victims of crime, court costs, fines, penalty payments, victim compensation assessments, and bond forfeitures in municipal courts; provides a collection fee; provides funding for the Municipal Restitution Recovery Division. Status: 07/19/95. Signed by Governor. (See also Probation/Alternatives.)
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AL H. 745/Guin Hogan: Relates to the 14th Judicial Circuit of Alabama; authorizes the district attorney to establish a Restitution Recovery Division within the Office of the District Attorney; provides for collection and enforcement of court orders in certain cases of nonpayment of restitution to victims of crime, court costs, fines, penalty payments, victims' compensation assessments, and bond forfeitures; provides for a collection fee and funding for the new Restitution Recovery Division; provides for a circuit. Status: 07/31/95. Signed by Governor. (See also Probation/Alternatives.)
AL H. 863/Peteloa: Relates to the duties of the Alabama Crime Victims Compensation Commission to authorize payment for sexual assault examinations. Relates to claims which may be denied or reduced. Increases the cap on expenditures for administrative purposes. Relates to crime victim costs and assessments to clarify that the additional costs and crime victim assessments shall be assessed in certain juvenile and youthful offender cases. Status: 07/27/95. Signed by Governor.
AL S. 12/Bedford: Authorizes each district attorney to establish a Restitution Recovery Division for the purpose of enforcing court orders and recovering in civil or criminal proceedings certain court costs, fines, bail bond forfeitures, penalty payments, and restitution or like payments ordered by the court payable to the State of Alabama or victims of crime; provides for the operation, administration, and enforcement of recovery by the Restitution Recovery Division. Status: 08/07/95. Signed by Governor. (See also Probation/Alternatives.)
AZ S. 1060: Restitution to a victim is a criminal penalty for purposes of the criminal's federal bankruptcy. Restitution order expires five years after date of signing. Judge can issue writ of garnishment for any fine, fee, restitution or incarceration cost. Also covers bad check fees collectable by prosecutors and bad check funds operated by counties. Signed by Governor. (See also Offender Fees.)
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CA A. 889/Rogan: Deletes the court's discretion over the rights of persons who were victims of a crime, the parent or guardian of the victim if the victim is a minor, or if the victim has died, the victim's next of kin, concerning the offense from expressing their views. Status: 07/31/95. Signed by Governor.
CA A. 1470/Brown W.: Adds private rewards offered by crime victims for information leading to arrest and conviction of specified offenders in specified circumstances that a person who accepts or receives, directly or indirectly, money or equivalent for providing information from witnessing an event or occurrence that he or she knows, or reasonably should know, may require the person to be called as a prosecution witness, cannot be found guilty of a misdemeanor. Status: 06/30/95. Signed by Governor.
CA S. 221/Hayden: Creates a right of the victim of a violent felony, or, in the event of a homicide, the victims' next of kin, to be notified by the district attorney's office of a pending pretrial disposition before a change of plea is entered before a judge. Status: 08/10/95. Signed by Governor.
CO S. 153/Wham: Concerns methods to facilitate the prosecution of sexual offenders by affecting statutes in a manner designed to assist sexual assault victims. Signed by Governor. (See also Sex OffendersGeneral.)
DE S. 141/Blevins: Ensures that sexual offense victims will not be required to pay for forensic medical examinations that could be used in prosecuting the offense; provides that victims will have no out-of-pocket costs associated with forensic exams and that the health care facility providing the examination will be reimbursed for any costs not covered by insurance through the Violent Crimes Compensation Fund. Signed by Governor.
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FL H. 41/Ogles: Specifies that failure by a victim to offer physical or verbal resistance to offender may not be deemed consent in sexual battery cases; provides evidentiary guidelines conforming to a clarified definition of ''consent;'' applies to prosecutions which are pending or are commenced on or after the effective date; creates provisions relating to sexual battery offenses by a law enforcement officer or correctional officer. Status: 06/17/95. Signed by Governor.
FL. S. 102/Rossin: Requires a crime victim to be asked to fill out a victim notification card that provides information necessary for contacting the victim; requires the chief correctional officer of a county or municipal jail, juvenile detention facility, or involuntary commitment facility attempt to notify the relative of a homicide victim and the victim of a sex offense, attempted murder, stalking offense, or domestic violence offense within 4 hours following release of the accused. Status: 06/11/95. Became law without Governor's signature.
FL S. 496/Wexler: Requires courts to hold confidential any court records containing the name, address, or photograph of the victim of certain sexual or child abuse crimes. Provides that a person who violates such confidentiality is guilty of criminal contempt of court. Authorizes the disclosure of the identity of certain crime victims to counseling services. Provides that a public officer or employee who has access to the name, address, or photograph of the victim of certain crimes must not disclose such information. Became law without Governor's signature.
HI H. 2022/Souki: Allows the court to order any restitution to be paid to the Criminal Injuries Compensation Commission in the event the victim has applied for compensation. Status: 06/21/95. Signed by Governor.
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IL H. 40: A defendant can subpoena a crime victim to appear at a post-conviction hearing only if the court finds that the evidence sought is material and relevant. 08/11/95. Signed by Governor. (See also Post-conviction.)
IL H. 204: Changes section that imposed an automatic restraining order prohibiting harm to witnesses and victims, directed at any juvenile changed with an offense, to allow courts to issue such orders. Other provisions of the law include community service, juvenile gangs, capital crimes, sex offenders, other. 08/11/95. Signed by Governor. (See also Probation/Alternatives, Capital Crimes/Punishment, Juvenile JusticeGang-related, Sex Offender-Registration/Notification, Other.)
IL S. 384: A court can extend the period for making restitution beyond 5 years if needed and in the victim's best interest. Other provisions of the act relate to adult probation fees and probation impact statements, juveniles intermediate sanctions. 07/21/95. Signed by Governor. (See also Probation/Alternatives, Juvenile JusticeGeneral, Juvenile JusticeParental Responsibility, Victims.)
IN H. 1227/Budak: Broadens the type of assets that an individual who has been formally charged with or convicted of a felony must deposit in the escrow amount administered by the victim services division of the Indian Criminal Justice Institute from which the responsible party's victims or the victim's heirs may receive civil damages. Requires victim services division to notify the victim of a felony for which a responsible party has been accused or convicted. Status: 05/10/95. Signed by Governor.
Page 107 PREV PAGE TOP OF DOC KS S. 222/Committee on Judiciary: Relates to the Crime Victims Assistance Fund. Also concerns victims, criminals and sentencing. Status: 05/17/95. Signed by Governor.
LA H. 2232 Kennard Vitter: Relates to the Board of Parole; requires one member to be appointed from a list of persons submitted by Victims and Citizens Against Crime, Inc. Signed by Governor. (See also Parole/Community Supervision.)
LA H. 2233/Kennard Vitter: Relates to the Louisiana Commission on Law Enforcement and Administration of Criminal Justice; adds representatives from Victims and Citizens Against Crime, Inc., the membership of the Commission. Status: 06/29/95. Signed by Governor. (See also Parole/Community Supervision.)
LA H. 2260/Riddle: Relates to victim's rights to set forth certain duties of the court before sentencing; requires the victim's right of allocution at sentencing. Status: 06/29/95. Signed by Governor.
MD S. 709: Requires a person convicted of a certain types of crimes to pay an additional court cost; provides for equal distribution of certain fees between the Maryland Victims of Crime Fund and the Criminal Injuries Compensation fund. Status: 05/18/95. Signed by Governor. (See also Offender Fees.)
ME S. 173: Gives victims of juvenile offenders the same right to address the court at dispositional hearing as victims of adult offenders have at sentencing hearings. Also modifies Main Juvenile Code with regard to dispositional hearings, reports from the Department of Corrections. (See also Juvenile JusticeGeneral.)
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ME H. 732/Peavey (LD 1006): Defines certain family members of a homicide victim as ''victims'' who may be notified of the release of a sentenced person. Status: 05/30/95. Signed by Governor.
MN H. 1700: Requires the agency having custody of the arrested to make a reasonable and good faith effort to notify the victim of release of arrested.
MT H. 69: Revises the laws relating to the protection and treatment of victims of crime and to the payment of restitution by the offender. Status: 03/13/95. Signed by Governor.
NJ S. 1728/Inverso: Permits relatives of certain murder victims to make a statement at the separate sentencing phase of a death penalty trial. Status: 06/19/95. Signed by Governor. (See also Capital Crimes/Capital Punishment.)
NM S. 727/Riley: Ensures that free forensic medical exams are provided for victims of sexual crimes. Status: 04/05/95. Signed by Governor.
NM S. 1153/Altamirano: Provides for transfer of one full-time equivalent and computer equipment from the Adult Parole Board to the Administrative Office of the District Attorneys; fulfills the Rights and Services Mandated by the Constitutional Amendment establishing Victims' Rights and the Victims of Crime Act: 04/05/95. Signed by Governor.
NV A. 186/Hettrick: Relates to criminal proceedings; expands the definition of ''victim'' to include any relative of the victim; allows a personal representative of the victim to appear at the sentencing of a criminal defendant. Status: 06/15/95. Signed by Governor.
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NY S. 313/Washington, et al.: Authorizes State Board of Parole Commissioners to include as a condition of parole that the parolee execute an assignment of wages for restitution; authorizes the court to include as a condition of probation or suspension of sentence that the defendant execute such an assignment of wages. Status: 06/16/95. Signed by Governor. (See also Parole/Community Supervision and Probation/Alternatives.)
NV S. 373/Committee on Judiciary: Requires notice of parole hearing to be provided to victim within specified time; provides other matters. Status: 06/16/95. Signed by Governor. (See also Parole/Community Supervision.)
NV S. 582/Committee on Judiciary: Resolves conflicts among various legislative measures of this session. Relates to child custody orders; child support; probation; lewd conduct; jail sentencing mental health counseling programs; victims restitution; driver's licensing; carrier regulation; and driving under the influence. Status: 07/05/95. Signed by Governor. (See also Probation/Alternatives.)
NY A. 1541/LusterSame as S. 1106: Authorizes the presence at a grand jury of a social worker, rape crisis counselor, psychologist or other professional providing emotional support to a person testifying before the grand jury who is likely to offer very severe emotional or mental stress. Status: 06/28/95. Signed by Governor.
NY A. 8102/Committee on RulesSame as S. 5296: Authorizes the Crime Victims Board to make awards to victims of the crime of unlawful imprisonment in the first degree or kidnapping in either the second or first degree in the absence of a physical injury; limits the award to the loss of earning or support and the unreimbursed costs of related counseling. Status: 08/02/95. Signed by Governor.
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ND S. 2264: Relates to criminal street gangs and crime, victims' rights to victims of juvenile crime; photographing of juveniles arrested for serious crimes. 4/13/95. Signed by Governor. (See also JuvenileGangs, Records, Victims.)
OH 2: Broadly revises felony sentencing laws. Includes provision specifying that the Crime Victim's Rights Law does not apply to acts within the jurisdication of juvenile court. Makes other revisions to Victim's Law, regarding notice to victims or victim's representatives, makes victim impact statements at capital offense at discretion of and subject to conditions that may be imposed by the court, changes release notification time provisions. 8/10/95. Signed by Governor. (See also Juvenile JusticeGeneral)
OH S. 91: Extends the ''Son of Sam'' (notoriety for profit) law to family members of criminal offenders and their agents and assignees. Modifies the mechanism under the son of Sam law for making payments to a crime victim from the Recovery of Offender's Profits Fund; authorizes a court to impose a fine of not more than $1 million against an offender if he committed aggravated murder, murder, or other aggravated felonies, of if the offender victimized at least three persons; makes such fine collectable as a civil judgment. Establishes the crime victims Recovery fund in the State Treasury, and requires moneys collected in satisfaction of any fine imposed under this new authorization to be deposited into the Crime Victims Recovery Fund in a separate account maintained in the offender's name; and permits any victim of an offense to obtain a civil judgment against the offender or his representatives and recover the judgment from the offender's account. 8/16/95 Signed by Governor.
OK S. 310/Wilkerson: Requires forfeiture of any profits received as a result of a criminal act, unless an integral part of the work is a depiction or discussion of the defendant's crime or an impression of the defendant's thoughts, opinions or emotions regarding the crime; establishes a criminal penalty for violation of a fine of not less than $10,000 and not to exceed 3 times the value of the proceeds of the contract and/or a maximum 10 years' imprisonment; gives victims priority claim to proceeds and profits. Signed by Governor.
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OR S. 943/Bryant: Creates civil cause of action for physical or fiduciary abuse of elderly or incapacitated person. Limits availability of action to person age 65 or older and to person incapacitated as defined. Specifies remedies available in action. Imposes 7-year statute of limitations on action. Expands crime of sexual abuse in first degree to include victim incapable of consent by reasons of being mentally defective, mentally incapacitated or physically helpless. Punishes by imprisonment, fines, or both. Status: 07/18/95. Signed by Governor.
PA S. 11: Proposes to amend the Constitution of the Commonwealth by eliminating language granting an accused in a criminal prosecution the right ''to meet the witnesses face to face'' and replacing it with language granting the accused the right ''to be confronted with the witness against him.'' Also prescribes that the General Assembly may provide for the manner of testimony of child victims or child material witnesses including videotaped depositions or testimony by closed-circuit television in criminal proceedings. Will be placed before the voters as referendum question at the November 1995 municipal election. Joint Resolution 1 of Special Session 1 of 1995. (See also VictimsChild Victims)
PA H. 14: ''Victim Advocate Law,'' establishes the Office of Victim Advocate within the Pennsylvania Board of Probation and Parole in order to represent the interests of crime victims before the Board or Department.
INSERT OFFSET RING FOLIOS 16 TO 25 HERE
APPENDIX C.NATIONAL DISTRICT ATTORNEYS ASSOCIATION, RESOLUTION: FEDERAL CONSTITUTIONAL VICTIM RIGHTS AMENDMENT
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Whereas, as prosecutors our fundamental role is to represent the interests of the public and the protect the rights of victims of crime; and,
Whereas, now as in the past, we are in the forefront of initiatives to recognize, expand and protect the rights of victims; and,
Whereas, the local prosecutors of America are responsible for the vast majority of criminal prosecutions; and,
Whereas, we recognize that states must establish and have established fundamental principals of victims rights by constitutional amendment or by statute; and,
Whereas, the NDAA is in favor of and supports expanding and enforcement of victim rights in all fifty states, territories and protectorates;
Therefore, be it resolved that, In the event that a national constitutional amendment defining victims rights is constructed we believe it must contain the following basic tenets:
The rights of victims shall not be diminished, and
The discretion of the prosecutor in the performance of the prosecution function shall not be diminished, including full discretion in the charging decision, the plea negotiation process and management of the case to and including conviction, and/or sentencing and appeal, and
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The abridgment of any right of the victim shall not be a cause for liability or a cause for injunctive relief which affects the ability for the prosecutor to effectively move the case forward to full disposition, and
New rights or benefits shall not be conferred upon defendants by virtue of this amendment.
Adopted by the Board of Directors, March 9, 1997, at Palm Springs, California.
Mr. HYDE. Thank you very much, Mr. Chief Justice. I have not asked questions of the previous panels and I really don't intend to here, but I would like to just comment on what I have heard.
Of course, you are right, there are many practical difficulties in having a constitutional amendment. We understand that. We are trying to understand the difficulties and see if solutions can be worked out. A statute is easier to pass because a statute doesn't require ratification by 38 States. Although in my judgment, an appropriate amendment would be speedily ratified. But in my opinion, and it is just my opinion, I don't think it is right, or I don't think it is accurate to say the State systems are working well.
We hear that on child support. There are systems set up and there are assistant attorney generals and there are States' attorneys and there are computers and nothing works, nothing works. Very little of it works. And we will hear from a succeeding panel of people who, despite statutory attention to this problem, didn't get the help they needed. It is hard to argue with somebody that all the protections for the accused should be in the Constitution and zero is in for the victim.
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You get in a busy jurisdiction like Chicago, where I practiced law, or other places. Everyone is overburdenedthe prosecutor has too many cases, the public defender has too many cases, the courtroom is jammed, people are swinging from the chandeliers, and you are supposed to dispense justice.
There isn't time for the witnesses, and there isn't time to even read the file on some of these things. And that is not exactly a high water mark of American justice. So there is a problem. There is a problem. The victims feel left out. In my opinion, the administration of justice is the important thing and we have to devise a system that dispenses justice, evenhandedly.
I would not be for a constitutional amendment if it got in the way of the effective administration of justice, and it may well. A constitutional amendment could obstruct through ancillary suits and enforcement. The speedy trial is a perfect example. Everyone wants a speedy trial.
What they don't know is how tough it is to find this witness; or when you find him whether he is telling three different stories or something else. Congress loves to pass statutes giving priority to civil rights cases and other cases, and it is just not that simple. And it could be hard to explain to a victim who only knows they are hurting and they want to see some justice. So I don't want to encumber the system so we cannot get the most effective and fairest justice possible, but at the same time, I am most sympathetic to victims, who are the forgotten people in all of this. They have been assaulted, and it is their lives that are turned upside down and the system goes merrily on calling the next case.
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It is like being in a divorce motion court. You think you are going to get heard or your poor client is going to have a chance to explain the nuances of what is happening to her and her kidsforget it. And it is our job to do something about that and we are trying to do something about it here, and you are helping us, so I appreciate that. And now Mr. McCollum.
Mr. MCCOLLUM. Thank you very much, Mr. Chairman. I would like to ask the panel of our distinguished judges to elaborate on one portion of the testimony, Judge Kazen, that you gave, that deals with the issue I raised with the Attorney General, concerning the victim testifying at trial or appearing at trial, both in the guilt phase and in the sentencing phase.
I completely concur with your statement that we don't want to have any question about the right of the court to sequester a witness who is a victim, who is testifying at the guilt phase of the trial. So that that person is not participating and might not even be able to adequately or appropriately participate later. But I am disturbed by the suggestion that has come out of a couple of the cases recently, and some things I have read, at least, that there would be almost virtually automatic prejudice built into a witness, a victim, who would be a witness in the sentencing phase, just by sitting in on the trial in chief, and I would like to know your thoughts on that.
And I realize you are asking for a wide discretion and latitude here of judges, but I am disturbed because of what I think has already been the potential of going too far in that direction. How do you set guidelines up, what criteria do you use, can we either constitutionally or statutorily do that without leaving it totally to the discretion of the judge?
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Judge KAZEN. Well, I will answer first and Judge Hodges may want to say something. First of all, I think we need to understand that in the Federal system, that is a very rare occasion and would only come up in a capital case because, as far as I know, that is the only time the jury has anything to say about sentencing.
If a jury finds a defendant guilty that is usually the end of their function and the judge has to sentence based on the guidelines. So in the overwhelming number of cases that situation is never going to come up in Federal court because the sentencing is only with the judge. In my own experiences, I rarely have a person asking to address me. They will instead talk to the probation officer. There will be a victim impact statement in the presentence report.
In a capital case, with all due respect, I may not have made that same ruling. I think what Judge Matsch was up against was that he was handling a case of tremendous national significance, the literal case of the century. The ultimate goal is to get it done and get it done right with no glitches in it.
I think at one time there were some Supreme Court opinions that reflected there might be a problem of prejudicing a jury and I think he was being extra cautious, as we all can be sometimes. As you indicated earlier this morning, however, once Congress passed the statute, the judge followed it and that was the end of it. It seems to me that speaks well for a statutory approach. I don't think any judge is going to say, ''well, I am going to ignore this statute, but if you put it in the Constitution, I will follow it.''
Page 117 PREV PAGE TOP OF DOC Mr. MCCOLLUM. So you think that the constitutional provisions need to have wide latitude, but by the statutes that we have and would be implementing, we can, as we have just done, resolve this problem without any further difficulty?
Judge KAZEN. Sure. Although we would not urge itand apparently, you would not eitherCongress could abolish rule 615 completely, if it chose to do so.
Mr. MCCOLLUM. I realize that. We have chosen not to do that for good reason, I think.
Judge KAZEN. But it could be easily done.
Mr. MCCOLLUM. Judge Hodges, do you want to comment on that.
Judge HODGES. On the last point, I think the remedy for that problem, if there is one, is in the application of rule 615 of the Federal Rules of Evidence and that can easily be addressed through the rules enabling act process in terms of a consideration of whether rule 615 is deserving of amendment.
But interestingly, Congressman, I looked into that very question yesterday and discovered that no one from any source has ever recommended any amendment to rule 615 of the Federal Rules of Evidence to the Advisory Committee on the Rules of Evidence, or before that, the Advisory Committee on the Rules of Criminal Procedure, which I chaired just before the creation of the Committee on Rules of Evidence. And I know personally, we never received, during the time I had that responsibility, any suggestion that rule 615 be amended.
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My point being that if that is a matter that deserves attention, that is the way in which it should be addressed, I would suggest, at least in the first instance, rather than through a global statute, much less a constitutional amendment.
Mr. HYDE. The gentleman's time has expired. Before I yield to the gentleman from Virginia, Mr. Scott, I would like to attenuate the questioning of this panel to get to the next panel because I would like to impose on this panel to stay around, if you would, to hear the next panel's direct testimony.
I know that is an imposition, but I think it relates to this problem and it won't take them long and you will get a feel for what we have to deal with and the nature and extent of this problem. So if you don't mind, I would consider it a great favor. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and in order to attenuate, I won't ask questions, but I will express some concerns I have, and maybe they can comment very briefly. But first, I think what we have heard is that the victims and witnesses aren't being addressed, their concerns aren't being addressed because you don't have time, and that is the question of funding that the judge indicated the millions of dollars to actually keep up with this.
Well, if we would fund the additional judges and prosecutors, and notices, we wouldn't need a constitutional amendment, maybe more training, maybe more witness victims coordinators. We also heard the comment thatI thought I heard judgesJustice Weisberger suggest the Federal courts ought to defer to the State courts' interpretation of the Federal Constitution.
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I would assume that the Federal judges would have some concerns about that process. Third, is the chairman has mentioned evenhanded justice. When you involve the victims in the process, you are going to get a haphazard response from victims. Some want to get on with their life; others want to be as revengeful as possible, and if you have had four first offense burglaries today, and on the fourth one, the victim comes forward full of revenge and you have given 1 year to serve to the first three, what consideration do you give to the victim's emotion on the fourth case?
Also, you have some practical problemshow do you deal with the standing of a victim to complain about the conduct of a trial. You mentioned the motions to separate witnesses. Suppose they don't want to be separated. Can they run down to Federal court to get an injunction so they don't have to be separated? That would, frankly, be preferable to what is the present case where they run to Congress, get us to change the law, and then run back to court and tell the judge that we have changed the law. At least you would be in the judicial setting.
What happens when there is a joint motion to continue the case made by both the prosecution and the defense, that the victim wants to be heard? You have a hearing, where is the hearing, is it in State court or is it in Federal court? Those, Mr. Chairman, are just some of the questions I would have asked if I had had the full 5 minutes.
Mr. HYDE. Well, I thank you, and you and I will discuss further the meaning of the word ''attenuate.'' I thank this panel very much, and I am deeply appreciative of your willingness to hear the next panel's statement. I don't think there will be a lot of questions, but it is important that we hear them.
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Judge KAZEN. We will be happy to do that and thank you again for your courtesy.
Judge WEISBERGER. I, too, shall be happy to stay with you.
Mr. HYDE. Thank you all.
Our fourth panel consists of four witnesses with varying perspectives on the proposals before us. Our first is Ms. Jacquelynn Davis. She is a domestic violence victim from Texas. For 10 years she suffered terrible violence and abuse at the hands of her husband, which she will detail. When she went to court to try to have her husband prosecuted, she received further abuse from the criminal justice system. She will give us a firsthand account of how badly a victim can be treated in the current system.
Next, we have Donna Edwards, executive director of the National Network to End Domestic Violence. She is a graduate of Wake Forest University and Franklin Pierce Law Center. She has worked in the field of preventing domestic violence for 15 years in various capacities and she will give us a different perspective on how the amendment might affect domestic violence victims.
Next, Robert Horowitz, prosecuting attorney for Stark County, OH. He is a graduate of the College of Emporia and Akron Law School. He has been a State prosecutor for almost all of his professional career. He was first elected prosecuting attorney in 1984 and has been elected three times since. He was active in the fight to pass a victims' rights constitutional amendment in Ohio and is currently president of the Ohio Prosecuting Attorneys Association.
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Our final witness is Bruce Fein. Mr. Fein is a graduate of the University of California and Harvard Law School. He served many years in government at the Department of Justice, the Federal Communications Commission, and the Congress. Currently, he is an attorney in private practice, specializing in constitutional issues. His syndicated column is seen in the Washington Times, Legal Times, and U.S.A. Today.
We welcome all of you and look forward to your testimony and, first, we recognize Ms. Davis. If you could hold your statement down to 5 minutes, we will put anything else you have into the record and that applies to the other witnesses so we can get to all of you. Thank you. Ms. Davis.
STATEMENT OF JACQUELYNN DAVIS, DOMESTIC VIOLENCE VICTIM
Ms. DAVIS. Thank you, Mr. Chairman. My name is Jacquelynn Davis and I am a survivor of domestic abuse and sexual assault. I want to take you back into my life for a few minutes to help you understand how victims are treated in the criminal justice system and why a constitutional amendment is necessary to protect their rights.
First of all, I am 37 years old, the mother of two children. I grew up in a Christian home, my father a minister and my mother, an educator. I had always dreamed of falling in love and marrying the kind of man who had the same upbringing, morals and beliefs as I did. I thought I found that man in James Murphy. I was wrong.
Page 122 PREV PAGE TOP OF DOC My dream was shattered and the horror story of being victimized began. I found out too late that my husband did not enjoy jokes being turned around on him. One day he locked me out of our home, the next day, returning the favor, I locked him out. I ended up in the hospital with a lacerated liver, internal injuries, and looking like I had gone 15 rounds with Evander Holyfield.
Four hours on the operating table, 6 weeks in recovery. Unfortunately, I returned home to my abusive husband because I thought I could make the violence stop. The abuse continued and my home became a revolving door. I would leave, stay gone a few days, or a few weeks, but I always returned, out of his threats or my fear. I left my home for the last time on April 8, 1993.
I filed for divorce and I thought that would end the violence. But when I left is when the real nightmare began. To keep myself safe, I obtained a protective order. My husband violated it more than 10 times in 6 months. Although all violations were reported to the police, they did not actively pursue finding and arresting him.
He chased me with a gun, causing me to have a serious car accident, disguised himself to stalk me, and destroyed my character by sending nude pictures of me to all my coworkers, friends and family. Finally, he kidnapped me from work at gunpoint, took me to my home and violently raped me. He even videotaped the assault.
Before the police could arrest James Murphy for the last assault, he kidnapped me at gunpoint once again. He brutally raped and sodomized me, slashed my arm almost to the elbow when I turned, because he wanted to slit my throat. He slashed my legs, urinated on me and set my hair on fire.
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That day I went back to the hospital and he went out to have dinner with friends and family. Finally, he was arrested and charged with two counts of aggravated sexual assault, aggravated kidnapping, aggravated assault with a deadly weapon and violation of a protective order.
Mind you, this was my first experience in the criminal justice system and I was very green and very afraid, but I thought this would be the end, the man I married, the man I loved, he will spend life in prison and I will be free.
Mr. HYDE. Ms. Davis, where are you, what jurisdiction?
Ms. DAVIS. In Texas. I live in Dallas, TX.
Mr. HYDE. So it is Dallas we are talking about. Thank you.
Ms. DAVIS. I listened to the advice of his family telling me what embarrassment it would be to them. I listened to the defense attorneys who asked me did I really want to go through with this, to just go down and visit him in jail and see how remorseful and sorry he was for what he had done, and I listened to the prosecutors who told me that maybe he spent enough time awaiting trial and will leave you alone. And I dismissed the charges.
That was my mistake, but not one that should have been held against me. Not only did my husband break all the promises he made to me when he was in jail, but he kidnapped my daughter from me and 7 months later, he sexually assaulted me again. He was arrested for aggravated sexual assault and spent 1 year in jail awaiting trial. This time the Dallas County prosecutor assured me that James Murphy's history of violence toward me would result in a sentence of at least 30 years.
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Although I was afraid of testifying, I was determined not to drop the charges this time, and the prosecutors' assurances calmed some of my fears. However, 3 days before the trial, I received a call from the prosecutor. The case that was supposed to be an easy win was suddenly in question. They wanted to plea bargain. I said, no. I begged them, no. But I was ignored. The day of the trial, the prosecutor dismissed all of the felony charges because they could not reach a plea bargain. I was terrified, and I was also silenced. The State had their say, James Murphy had his say, but I was not allowed formally to object to the dismissal of charges. The entire way home, the prosecutor's words kept ringing in my ear, ''you dropped the charges before. We feel you are trying to use this to get the courts to give you your divorce.''
I had been sexually assaulted. I was following through on the charges. I was not being swayed by his promises not to hurt me again. I turned to the criminal justice system to prosecute a criminal and they were dropping the charges and blaming me.
I begged the court to notify me of when they would release this man so that I could get to safety, and I could get my children to safety. You know, this man had beaten me, raped me, hospitalized me, threatened to kill me and I was petrified. They said, OK, I will let you know. Of course, since the charges had been dismissed, he walked out a free man the same day, and I was not notified. But hearing he had been released, I quickly moved to another county and, again, I filed for divorce. The nightmare began again.
After a court-ordered visit with our daughter, my husband found out where we lived, he kidnapped me from my daughter's school at gunpoint, took me to my home where he planned to assault and kill me. A friend's teenaged son was at home at the time and he, too, was held at gunpoint. James Murphy even attempted to fire the gun at me. His words over and over again, ''this time I will kill you, I have come to kill.''
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Thankfully, I got away and he was arrested that night. He had gone to work like he had not done a thing. He was charged with two counts of aggravated assault with a deadly weapon and one count of aggravated kidnapping, all felonies. The Tarrant County prosecutor promised me that justice would be mine. James Murphy had involved another person and there were witnesses.
Before the trial, 4 days before the prosecutor came to my home to discuss a plea bargain. I would not accept it because I truly believed that lesser charges would jeopardize my safety. The prosecutor accepted my objection. However, the day of the trial, James Murphy was set free. He pleaded guilty to illegally carrying a weapon, a misdemeanor, and received probation. Again, felony charges meant nothing. The man who had kidnapped me at gunpoint, threatened to kill me and attempted to kill me was free.
Again, I was not allowed to formally object to the plea bargain. In the court records, my voice is nowhere to be heard. I am sorry to say that I have completely lost faith in the criminal justice system. I was betrayed and raped by the very system that should protect me. I was not allowed to speak before a judge at either trial, I was not allowed to enter a formal objection to dismissal of charges or to the plea bargain. I was summarily excluded from all court proceedings.
Despite the history of violence against me, my safety was not taken into consideration. In fact, the last prosecutor said that this was a case of a messy divorce. A messy divorce. How many divorces do you know that involve guns, battery and rape? I walked away from the courts empty-handed and vulnerable to another attack. I was made to feel cheap and dirty. And I could almost hear my husband laughing at me as he walked away free and I walked away in fear.
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I am still on the run. And any day now, if he ever came to my home, my 17-year-old should be a graduating senior, my son may not graduate from his school because we will have to leave. My 7-year-old daughter will probably be in her third school in 3 years with a new group of friends and a new home because of the way that the justice system is now.
And when I return to Texas, we will be holding another vigil for a victim of domestic violence who was shot and killed on her front lawn just a couple of days before I came here to testify. I am lucky because I am here alive today to testify, and not all victims are so fortunate.
I believe with every fiber of my being that the amendment must be passed. Without it victims will be continually at the mercy of the courts, and violent criminals will continue to walk free.
Thank you, Chairman.
Mr. HYDE. I want to thank you, Ms. Davis. You are a very courageous lady, and you have been a great help.
Ms. DAVIS. Thank you.
[The prepared statement of Ms. Davis follows:]
PREPARED STATEMENT OF JACQUELYNN DAVIS, DOMESTIC VIOLENCE VICTIM
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My name is Jacquelynn Davis. I am a survivor of domestic abuse and sexual assault. I want to take you back into my life for a few minutes to help you understand how victims are treated in the criminal justice system and why a constitutional amendment is necessary to protect their rights.
I am thirty-seven years old and the mother of two children. I grew up in a Christian home with my father, a minister, and my mother, an educator. I dreamed of falling in love and marrying the kind of man who had the same upbringing, morals, and beliefs as I did. I thought I found that man in James Murphy.
I was wrong. The dream was shattered and the horror story of being victimized began. I found out too late that my husband did not enjoy having jokes turned around on him. One day he locked me out of our home so the next day, as a joke, I did the same. For doing that, I ended up in the hospital with a lacerated liver. I spent four hours on the operating table and six weeks in recovery.
Unfortunately, I returned home to my abusive husband because I thought I could make the violence stop. The abuse continued and my home became a revolving door. I would leave and stay gone a few days or a few weeks. However, by either his threats or my fear, I always returned home. I left my home for the last time on April 8, 1993. I filed for divorce and thought that would end the violence, but when I left, the real nightmare began.
To keep myself safe, I obtained a protective order. My husband violated it more than ten times in six months. Although all violations of the protective order were reported to the police, they did not actively pursue finding and arresting him. He chased me with a gun, disguised himself to stalk me, and he destroyed my character by sending nude pictures of me to all of my friends and family. Finally, he kidnaped me from work, took me to my home, and violently raped me. He even videotaped the assault.
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Before the police could arrest him for this last assault, James Murphy kidnaped me again. He brutally raped me, slashed my arm almost to the elbow, slashed my legs, urinated on me, and set my hair on fire. Finally, he was arrested and charged with two counts of aggravated sexual assault, aggravated kidnaping, aggravated assault with a deadly weapon, and violation of a protective order.
I thought, ''This is the end. He will spend life in prison and I will finally be free.'' But I made the mistake of listening to people who said not to do this to him and not to separate my daughter from her father. So, I dropped the charges. That was my mistake, but not one which should have been held against me.
Not only did my husband break all of the promises he made to me while he was in jail, but he kidnaped our daughter from me and seven months later he sexually assaulted me again. He was arrested for aggravated sexual assault and spent one year in jail waiting trial.
The Dallas County prosecutor assured me that James Murphy's history of violence toward me would result in a sentence of at least thirty years. Although I was afraid of testifying, I was determined not to drop the charges this time. Too, the prosecutor's assurances calmed some of my fears. However, three days before the trial, I received a call from the prosecutor. The case that was supposed to be an easy win was suddenly in question. They wanted to plea bargain. I begged the prosecutor not to bargain, but I was ignored. The day of the trial, the prosecutor dismissed all of the felony charges because they could not reach a plea bargain. I was terrified. I was also silenced. The state had their say, James Murphy had his say, but I was not allowed formally to object to the dismissal of charges.
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The entire way home, the prosecutor's words kept ringing in my ears''You dropped the charges before and we feel you are using the court to get your divorce.'' I had been sexually assaulted. I was following through on the charges. I was not being swayed by James Murphy's promises not to hurt me again. I turned to the criminal justice system to prosecute a criminal, but they were dropping the charges and blaming me.
I begged the court at least to notify me of when he would be released so that I could make preparations to keep myself and my children safe. After all, this was a man who had beaten me, raped me, hospitalized me, and threatened to kill me. I was told that he would be held for a few days and I would be notified before his release. Of course, since the charges had been dismissed, he was released that same day. I was never notified.
I moved to another county and again filed for divorce. Then the nightmare began again. After a court ordered visit with our daughter, my husband found out where we lived. He kidnaped me from our daughter's school at gunpoint and took me to my home where he planned to assault and kill me. A friend's teenage son was at my home at the time and he, too, was held at gunpoint. James Murphy even attempted to fire the gun at me. Thankfully, I got away and he was arrested later that night. He was charged with two counts of aggravated assault with a deadly weapon and one count of aggravated kidnaping, all felonies.
The Tarrant County prosecutor promised me that justice would be mine. It was not. Four days before the trial, the prosecutor came to my home to discuss a plea bargain. I would not accept it because I believed lesser charges would jeopardize my safety. The prosecutor accepted my objection. However, the day of the trial James Murphy was set free. He pleaded guilty to illegally carrying a weapon, a misdemeanor, and received probation. Again, felony charges meant nothing. The man who had kidnaped me at gunpoint, threatened to kill me, and attempted to kill me, was free. Again, I was not allowed formally to object to the plea bargain. In the court records, my voice is no where to be heard.
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I have completely lost faith in the criminal justice system because I was betrayed and raped by the very system that should protect me. I was not allowed to speak to the judge at either trial. I was not allowed to enter a formal objection to the dismissal of charges or to the plea bargain. I was summarily excluded from all court proceedings. Despite the history of violence against me, my safety was not taken into consideration. In fact, the last prosecutor said this was a case of a ''messy divorce.'' How many divorces do you know that involve guns, battery and rape? Although Texas has a crime victims bill of rights, I was never notified of any rights I had. I have never received any type of restitution, although I had to leave a job because of being stalked, have suffered physical injuries, have incurred hospital expenses, and have had to move four times.
I walked away from the courts empty handed and vulnerable to another attack. I was made to feel cheap and dirty by the prosecutors. I could almost hear my husband laughing at me as he walked away free and I walked away in fear. I am still on the run. But I am lucky because I am here today, alive, to testify. Not all victims are so fortunate. I believe with every fiber of my being that this amendment must be passed. Without it, victims will continue to be at the mercy of the courts and violent criminals will continue to walk free.
Mr. HYDE. Ms. Edwards, please.
STATEMENT OF DONNA F. EDWARDS, EXECUTIVE DIRECTOR, NATIONAL NETWORK TO END DOMESTIC VIOLENCE
Ms. EDWARDS. Mr. Chairman and members of the committee, thank you for accepting my testimony today on behalf of the National Network to End Domestic Violence. The National Network is a membership organization of State domestic violence coalitions around the country, collectively representing some 2,000 battered women's shelters, programs and domestic violence services. The senior leadership of our State domestic violence coalitions and programs comprises some 6,000 years of experience and expertise dealing with these issues of domestic violence, and many of us are formerly battered women or share unique family experience with domestic violence.
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It is with the breadth and depth of experience that we come to this committee in opposition to the proposed constitutional amendment on victim rights. It was not an easy decision, but it is one that reflects our expertise and our experience.
During the last 20 years in working with battered women as they encounter the pitfalls and hostility and sometimes, as we already heard, the revictimization by systems that are supposed to work for victims, the National Network concludes that the proposed victim rights constitutional amendment would really do little to change the real experiences of battered women when their batterers are brought before the justice system. And as we have heard from a very compelling description of her experience, Ms. Davis really has pointed to the gaping holes in the criminal justice system when it comes to dealing with victims, but these are not holes that can be cured by a constitutional amendment. They are holes, however, that can be cured with better practices, with training, and treating victims like they are people, like they are human, and giving them respect in the system. And that is what I heard described by Ms. Davis.
Over 20 years or so, I think that what we have seen is a move toward coordinated justice system response to domestic violence victims. And we have seen a focus on victim safety, accountability and accessibility that can result in real, positive changes in prosecution rates and effective sentencing, and better treatment of victims throughout the system.
In Illinois, for example, the Illinois Coalition Against Domestic Violence, which is one of our member programs, reports that in Whiteside County, a victim/witness advocate is assigned to the prosecutor's office. She works really closely with victims. She notifies them about every court proceeding. She works with them on impact statements, helps them as they move through the criminal and civil justice systems, coordinates things like issuance of protective orders on the civil side and follows processes on the criminal side.
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These kind of effective programs, I think, make a real difference for victims. We see these programs all around the country. Massachusetts and Pennsylvania have been stalwarts in promoting programs that work toward making the either statutory provisions or constitutional amendments at the State level really work for victims. These are only a few examples of the way the system can work for victims without a Federal constitutional amendment.
I think the question before the committee, though, is much more complex. Can or should the changes be accomplished by an amendment, or can they be done, or other things be done, in fact, by statute? In our view, we believe that they can.
Indeed, I think that some of the substantive changes both in the constitutional amendment but also in the implementing statute are very problematic. For example, some battered women are forced into the criminal justice system because of their experience of abuse. I think that in these circumstances, the amendment would have untold consequences by eroding their rights as defendants, because sometimes, in fact, there is a very fine line between a victim and a defendant.
Next, I think that it is essential for the interest of victims of domestic violence that criminal defendants retain their constitutional right also while we allow the management of the court processes, coordinated, working together with police, prosecutors, and others in the justice system to really make the victim a partner in the process. The victim can't be set aside, and we know that this happens.
I share the chairman's view that we can't simply say that there are constitutional amendments and State statutes out there, and, you know, we should just let the system work. The fact is the system doesn't work for victims. But the system doesn't work because of bad practice and bad training.
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There is a statutory alternative that could be crafted to ensure that victims have rights and that victims' voices are heard in the process. I think if you look around the country at the programs in jurisdictions where programs are working, they are programs in which victim/witness advocates work really closely with victims throughout the process. For example, there is a program in Florida, in a rural county in Florida, in which a response team goes out immediately to the scene of a domestic violence assault. The police arrest the perpetrator, and then the response team, which has a combination of advocates and police officers, works with that victim to make her understand what the process will be for her, what her experience will be, where she needs to go next, how she can do safety planning. And we are just beginning to see the results of those kinds of programs and the way that they can work to make a victim's experience better in the system.
As with most changes in public policy, the really critical element for success is a commitment from State and Federal authorities to integrate victims consistently in the criminal justice system. A constitutional amendment will not ensure this. It is not a panacea. At the National Network we know that the imperative for governmental and legislative initiatives to enhance victim participation in the criminal justice process is to receive proper support for their implementation in order to have a positive impact.
We support policies and programs and procedures to provide victims, including victims of domestic violence, all victims, with crucial services and training for prosecutors and court officers and others who encounter victims; for judges so that they understand victims' needs and understand what a victim must go through in moving forward with a prosecution.
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The real difference for victims is that services are directed to meet their individual needs. Everyone has a unique story. And I think one of the lessons that we have learned as domestic violence advocates is that a victim comes to us as she does with her individual story to tell.
We can make changes in systems, but in the end we have to have somebody who is working in partnership with that victim so that she can move through the process in the way that is most suitable for her experience. Not all victims want to go forward with a prosecution. For some victims a plea bargain makes perfect sense. These are things that ought to be at the discretion of trained judges and prosecutors and working in close coordination with battered women's advocates and with victims.
And I thank you very much for accepting my testimony, and I would be happy to answer any questions.
Mr. HYDE. Thank you, Ms. Edwards.
[The prepared statement of Ms. Edwards follows:]
PREPARED STATEMENT OF DONNA F. EDWARDS, EXECUTIVE DIRECTOR, NATIONAL NETWORK TO END DOMESTIC VIOLENCE
Good morning, Mr. Chairman and members of the Committee on the Judiciary. Thank you for accepting my testimony on behalf of the National Network to End Domestic Violence. My name is Donna Edwards, and I am the executive director of the National Network. The National Network is a membership organization of state domestic violence coalitions from around the country, which collectively represent nearly 2,000 shelters and programs for battered women and children. The senior leadership of the state domestic violence coalitions around the country comprises some 6,000 years of combined experience as advocates for battered women and their children. Many of these leaders are themselves formerly battered women or share unique family experience with domestic violence.
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Mr. Chairman, it is with this breadth and depth of experience that we come to this Committee in opposition to the proposed constitutional amendment on victim rights. It was not an easy decision, but one that reflects our expertise and our experience.
As the members this Committee are aware, state domestic violence coalitions are at the forefront in our states addressing public policy issues that affect battered women Many state coalitions are actively engaged in building and developing programs that provide system and individual advocacy for battered women in the civil and criminal justice systems and other governmental entities that encounter victims of domestic violence. In particular, state coalitions have been instrumental in providing through their justice systems advocacy programs volunteer and staff advocateslay advocateswho assist bartered women in their dealings with police, prosecutors, judges, probation officers, and other justice system personnel. Some of the earliest of these justice systems advocacy programs began in Illinois, Texas and Pennsylvania and have spread throughout the country over the last two decades. Importantly, through these programs state coalitions and local programs are able to identify and expose gaps in the justice system and effect changes in laws, policies and procedures to make the justice system accessible and accountable to domestic violence victims. Indeed, it was the leadership of this Committee that acknowledged many of the gaps identified by advocates over the years and led directly to Congress passing the Violence Against Women law in 1994. The experience of advocates during the last twenty years in working with battered women as they encounter the pitfalls, hostility and, yes, revictimization by systems that are supposed to work for victims, leads the National Network to conclude that the proposed victim rights constitutional amendment would do little to change the real experiences of battered women when their batterers are brought before the criminal justice system.
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The gaping holes that are present in the justice system for battered women are shared by all victims who encounter this system. Is she safe? Has the system met other critical needs (i.e., housing, child care, finances, medical care, civil legal services)? Will she be heard and how? Does she understand the process, next steps, what's expected of her? What are her options? Who can she contact and how? For a battered woman, the promise of justice can be elusive as its agents (police, prosecutors, judges, probation officers and other justice system personnel) too often set victims' needs aside in their quest for justice. Such practices, however, ignore radically a battered woman experience of violence and negate the importance of communicating her experience in a way that can positively influence the outcome of a criminal proceeding. A coordinated justice system response to domestic violence which focuses first on victim safety, accountability, and accessibility can result in positive changes in prosecution rates, more effective sentencing, and reduction in escalating violence and homicide. We are just beginning to see the positive outcomes for victims and for the system when the system is engaged in coordinated responses such as those developed in jurisdictions around the country. While every victim's experience is unique, we can do better. We have learned that for many victims, the difference between feeling that the system does not work at all and feeling that the best that could have happened did is a difference that can be made up by coordination, communication, and compassion. Twenty years of justice system advocacy suggests that for a battered woman, improving the policies and practices of justice system personnel will greatly alter the experiences of victims as they seek justice.
The question before this Committee, however, is more complex: Can or should these changes be accomplished through a victim rights constitutional amendment? We believe they should not. In our view, while many of the desired outcomes of a constitutional amendment are important, the amendment is problematic in numerous respects. First, the amendment fosters opportunities to curtail the rights of criminal suspects and, if passed, will likely destabilize the vital constitutional balance in favor of protecting the criminal defendant against unchecked government power. Though unintentional, it is an anticipated consequence of the proposed amendment that defendant's rights would be stacked next to the rights of victims, creating a scale that cannot be balanced. The amendment further creates the presumption of crime prior to the proof of guilt by using the justice system to name ''victims'' in advance of a finding of guilt. The potential structural havoc that the amendment would wreak on our current constitutional framework would be dangerous for the rights of both victims and persons accused of committing violent crimes.
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For some battered women who are forced into the criminal justice system because of their abuse, the amendment would have untold consequences. How many battered women are incarcerated today never having had the opportunity to address the court regarding the abuse they endured? There could be but a day's difference between the battered woman ''victim'' and the battered woman ''defendant.'' The categories of ''victims'' and ''accused'' perpetrators of violent crimes are not mutually exclusive. Domestic violence ''victims'' sometimes become criminal defendants themselves as a result of various circumstances. Some domestic violence victims have been driven to respond against their abusers in selfdefense, others are coerced into participating in criminal activities by their abusers, and still others are subjected to dual arrest policies. These situations represent a sampling of the manner in which the conceptual line between ''victims'' who are to be protected from further harm and ''accused'' offenders vanishes. Therefore, it is essential to the interests of victims of domestic violence that all criminal defendants retain their constitutional protections. The Constitution, if it is to mean anything at all, must protect the important rights of all criminal defendants from the overwhelming power of the state that is inherent in a criminal prosecution.
Even those who support the amendment have acknowledged that the conceptual foundation upon which our criminal justice system rests is that crimes are assaults on society at large and, thus, society through the government is responsible for administering their punishment. Getting the justice system to acknowledge and act upon this responsibility in domestic violence cases has been a hard-fought struggle. By positioning the victim as a third party ''enforcer,'' the proposed amendment stands in sharp contrast this fundamental principle. For victims of domestic violence this is a difficult, if not impossible position. Batterers are experienced in using the system to further harass. intimidate threaten. and manipulate their victims. Thus the important progress that advocates have made in furthering ''no-drop'' and ''pro-arrest'' policies have taken the burden away from bartered women to pursue criminal sanctions and placed that responsibility where it belongswith the state. An unfortunate potential outcome of the constitutional amendment is that prosecutors and other justice system personnel will again shift that burden by stepping back from their responsibility, leaving battered women vulnerable to further violence.
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Another paramount consideration in terms of implementing the proposed amendment Is how a domestic violence victim would pursue her constitutional rights. An analogy could be drawn between the Sixth Amendment right to counsel and the rights contained in this proposed amendment, which might require counsel to be appointed to every victim. For example, if a prosecutor decides that the victim should not be present at trial and defense counsel agrees, would a poor, battered woman be entitled to counsel on a motion to the court to enforce her constitutional right to be present during the proceeding? How much of already scarce resources for victim services would be diverted to implementation of the constitutional amendment in this regard? The practical difficulties that battered women face today in obtaining legal representation to get an order of protection or custody of their children suggests that the availability of legal resources to pursue a constitutional right to be present at trial or other proceeding is wishful thinking, at best. What resources will be tapped to ensure that battered women can enforce their constitutional rights under this proposed amendment?
An additional problem is that in order to be given effect, the rights in the amendment require significant implementing legislation, which suggests that many of the proposed rights are attainable through traditional legislative action. In a survey which we recently undertook to compile the variety of state constitutional rights and statutory guarantees that are available to victims we found that there are a myriad of protections for victims. Many of these protections mirror those proposed in the amendment now under consideration. It is clear that through the legislative and amendment process, the states are experimenting to find the right balance for their states. By all evidence' this is a dynamic process. It is a process that cannot be replicated at the federal level given the complexity of enacting a federal constitutional amendment. Thus, it seems imprudent to undertake a massive effort to overhaul the federal constitution with the great potential for error or with the prospect of then having to enact further legislation. The more constructive alternative would be to develop thoughtful legislation to address victims real concerns today, thus preserving the opportunity to fix more immediately what may be wrong. A federal constitutional amendment is a one-shot deal. The proposed amendment, as opposed to other legislative options, would set an undesirable reactive precedent for constitutional policy and undermine important established fundamental protection for individuals against unreasonable criminal procedures.
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In the effort to carefully craft an amendment sufficiently so as to strike a constitutionally permissible balance between the rights of the victim and the accused, the drafters have created a set of rights which, if interpreted literally, could impede law enforcement efforts as a whole and pose prohibitively large administrative costs. If interpreted in a moderate manner, the rights written into the amendment would not ensure any remedies if violated. Prosecutors and other state actors have immunity from certain suit arising out of their official duties as state actors and the amendment clearly states that ''[n]othing in this article shall give rise to a claim for damages against the United States, a State, a political subdivision, or a public official.'' Legal advocates and scholars often quote the axiom: ''Rights without remedies are no rights at all.'' This amendment illustrates the meaning of the above concept and simultaneously demonstrates that most conceivable remedies in the context of ensuring several of the proposed rights would be unworkable. Experienced domestic violence advocates understand the value of the availability of money damages to effect system change. Fundamental changes in law enforcement policies and procedures throughout the 1970's and '80's were the direct result of system failures that resulted in death and severe injuries to women which were exposed through litigation and the payment of large damage awards to victims and their families. Omitting such an important remedy that would guarantee effective enforcement of the proposed constitutional rights leaves the amendment virtually without teeth.
At most, the amendment will create a group of ephemeral civil rights claims when violated, claims which are difficult to understand and prohibitively expensive to pursue. The mere availability of attorney's fees is little inducement to ensure that victims will be able to enforce their constitutional rights. For example, under this sort of constitutional right, the ultimate retribution available to a victim after claiming a violation is an injunction. Substantial qualifying language contained within the latest version of the amendment could further eviscerate these rights. ''Exceptions'' to the amendment may be enacted based upon ''compelling reasons of public safety or for judicial efficiency in mass victim cases;'' the right to notice will be satisfied ''if the proper authorities make a reasonable effort ... if the failure of the victim to make a reasonable effort to make those authorities aware of the victim's whereabouts.'' This provision creates an ''escape clause'' for less than diligent notice servers and threatens the safety of domestic violence victims who often must take extraordinary precautions to conceal their whereabouts from their abusers and anyone who may come into contact with them.
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Reflecting the symptomatic problems pervading the amendment as a whole, the provision in the proposed amendment guaranteeing an ''order of restitution from the convicted offender'' promises victims a great deal but will deliver lime. It is a fact that the vast majority of individuals accused of violent crimes are indigent. Indeed, restitution is rarely ordered in domestic violence cases and victims rarely recover under orders of restitution when they are made. Thus, recovering pursuant to ''an order of restitution'' would be a disappointing exercise in futility. If restitution becomes a constitutional right and is construed strictly, it could supersede the existing direction of federal funds and cause a dangerous redistribution of limited resources in the effort to fulfill this promise. The provision could lead to orders redirecting federal and state monies from established victims funds, benefiting individual victims in isolated cases at the expense of thousands of victims currently served by victims' assistance programs.
Twenty-nine (29) state Constitutions have already been amended to afford victims' rights and most of these states have adopted corresponding implementing statutes. Virtually every state has some level of state constitutional or statutory protections available for victims. Federal law and the Attorney General guidelines for Victim and Witness Assistance require extensive notice to victims concerning rights and available services. Pursuant to these enactments, programs have been implemented through federal and state statutesthe success or failure of which will not be dependent upon the existence of a constitutional amendment establishing their objectives as ''rights.'' As with most changes of public policy, the critical element for success is the commitment from state and federal authorities to integrate victims consistently in the criminal justice system. A constitutional amendment will not ensure that this kind of commitment is made: it is not a panacea.
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At the National Network, we realize the imperative for governmental and legislative initiatives enhancing victim participation in the criminal justice process to receive proper support for their implementation in order to have a discernible positive impact. We support the development of policies, programs and procedures to provide all victims, including victims of domestic violence, with crucial services and training for prosecutors and their officers, court officers and others who encounter victims. The real difference for victims is in the services that are directed to meet their individual needs. For example, criminal justice system personnel must be trained and retrained to address victims' needs, bail release conditions must be comprehensive in scope, civil protection orders must be enforced consistently, we must enhance notification systems that pay particular attention to victim safety and confidentiality, victims should receive assistance in developing safety plans and taking care of other critical needs, and victim-witness advocates must be available in every prosecutor's office to maintain contact with victims and educate victims about the criminal process and resources available to her. In addition, federal funding for shelters, safe havens and counseling services should continue to be prioritized and increased. These steps are far more likely to address the everyday needs of victims than the proposed constitutional amendment.
The National Network will work with this Committee to ensure that victims are not forgotten in our justice system. We believe that victims can make a difference in ensuring justice and that the system must make a difference for victims. The proposed constitutional amendment is not a solution, it is a call for dialogue and a call to action. We can and must make the justice system work for victims through better practice and workable state and federal laws.
Mr. HYDE. Mr. Horowitz.
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STATEMENT OF ROBERT D. HOROWITZ, PROSECUTING ATTORNEY, STARK COUNTY, OH
Mr. HOROWITZ. Mr. Chairman and Members of Congress, I am very pleased to be here. In addition to what the Chairman said, I also currently serve as chairman, or recently served as chairman, of the State Victims Advisory Board. I come from a county with 375,000 people, so for Ohio that is pretty much of an urban county. I have thought a lot about what I want to present to you today, what I think you need to hear from the prosecutors of Ohio who have previously endorsed an Ohio victims' rights amendment, and who have voted to support an amendment to the U.S. Constitution.
I think it is a pretty simple issue that you are faced with in this process. I think it is easy to cloud it with collateral matters. But I think that you are really facing the issue as to do you believe that victims of crime have fundamental rights, or do you believe that victims of crime do not have fundamental rights?
If you don't believe that they have fundamental rights, then statutory mechanisms are certainly sufficient to deal with those rights. I think that if you do believe that they have fundamental rights, then the Constitution is the place to solidify and address them.
I would suggest to you that some complicate this question by the prediction of dire results. In participating the adoption of the Ohio victims' rights amendment, I heard all the arguments before. There is not one new argument that I am hearing right now. But I would suggest to you that our experience in Ohio contradicts these arguments.
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In 1984, a lot was happening in Ohio and other places in the victims' movement. In our State it was the time that we had our first major victims' rights legislation passed. It was also passed at that time the creation of the State Victims Advisory Board that I chaired. And there was also the beginnings of VOCA funds provided by your predecessors in Congress.
During the 10 years that I served as chairman of the State Victims Advisory Board, we went from 6 of 88 counties, county prosecutors with formal programs, to well over 70 at this point. Our programs are funded by VOCA moneys, almost entirely by VOCA moneys. So when I move to the arguments that I hear most commonly made against the logistics of this type of an amendment, when people argue cost, the State of Ohio will provide these services for 3.5 to $5 million out of VOCA moneys.
Mr. HYDE. Would you tell us what VOCA money is?
Mr. HOROWITZ. Victims of Crime Act. It is fines and forfeitures taken from Federal prisoners that are disbursed to the States for compensation on one part and for victims' programs on the other part.
Mr. HYDE. Thank you.
Mr. HOROWITZ. And it has in the 12 years or so that it has been allocated, it has increased 16-fold to the State of Ohio. So our prosecutors are enjoying, as other county prosecutors in other States are enjoying, the ability to fund their programs with these moneys.
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Also, I would suggest to you that the system spends a lot of money, when there is confusion and victims have questions and have legitimate concerns, with tens of thousands of phone calls that can be much better directed by coordinated services.
Lastly, notification is a big issue for victims, and there is no competent prosecutor that I know of that cannot automate his or her system to provide notification to victims as quickly as reprogramming their computer. It is being done all over Ohio, and it is a simple thing to do.
The second issue that Ithat I have heard a lot of is that victims will crowd the system and will demand veto power over negotiated pleas. That is simply not true in Ohio. It is not the case. We have in the overwhelming majority of our dispositions the victims' support for what we are doing. In instances where they do not support what we are doing, at a minimum they acknowledge that they have been informed, they have been consulted, they understand the reason the State is taking the action they are taking, although they may object to it.
In death penalty litigation, I would suggest that victims can be an extreme benefit, not only to the State in providing assistance, but for defendants as well. We do death penalty litigation in my county, and I would say to you that well over a third of our death penalty litigation cases in the 13 years that I have been there have been resolved at the request of the victim to accept a life without parole sentence. I would also suggest to you in those 13 years, there hasn't been a single case, not one single capital litigation case, that we have had which has had its procedure altered by the input of the victim. They have either directly agreed with our process and/or procedure, or we have chosen to go the path that we think is most appropriate. It has not stopped us in one single case.
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To finish my thoughts, I have been recently appointed by the Chief Justice of the Ohio Supreme Court to serve on the Ohio Futures Commission, and we are looking at the role of the court in the 21st century. We are looking at some very exciting and unusual ideas about how the courts will proceed in the 21st century. You can count on the fact that there will be alternative dispute resolution in State courts, there will be informal-type proceedings to deal with many of the things that courts are handling now in court trials or jury trials. And I would suggest to you that the victims must be a stakeholder in this evolution of courts in this country.
I do believe that victims have fundamental rights. I do not believe that State statutes are sufficient to protect those rights, but I do know that the U.S. Constitution is the best place to preserve, protect, and defend those rights. And I thank you for your patience and would entertain any questions.
Mr. HYDE. Thank you very much, Mr. Horowitz.
[The prepared statement of Mr. Horowitz follows:]
PREPARED STATEMENT OF ROBERT D. HOROWITZ, PROSECUTING ATTORNEY, STARK COUNTY, OH
Good afternoon, Mr. Chairman, Representatives. My name is Robert Horowitz, and I am the Prosecuting Attorney for Stark County, Ohio, a county of over 375,000 people. I would like to thank you for the opportunity to address the Committee on a matter that is very important to me and, indeed, all prosecutors, and that is the issue of a federal crime victims' rights amendment to the U.S. Constitution.
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Before I get into the substance of my remarks, I'd like to tell you a little bit about my background as a prosecutor and a supporter of victims' rights.
I started my career as a Legal Aid Attorney, in 1972. In 1974 I became an Assistant Canton City Prosecutor, and have been an active prosecutor since that time.
In 1985 I was elected my first four year term as the Prosecuting Attorney for Stark County, the first Democrat in that position in 28 years. I have continued in that capacity since that time. I currently serve as the President of the Ohio Prosecuting Attorneys Association, and have served on the Executive Committee of that organization since 1985. I am also the Chairman of the Stark County Budget Commission and the Chairman of the Law Enforcement Committee of the Stark Council of Governments, positions I have held since 1985.
In my capacity as Prosecuting Attorney I also run the oldest prosecutor-based victim assistance program in Ohio. In 1985 I was appointed by Ohio Attorney General Anthony J. Celebreeze as the first Chairman of the Ohio State Victims Advisory Board, and served in that position through 1994. I continue to be a member of that board.
So I come to this issue with considerable experience incorporating victims' rights in my duties as a prosecutor.
The issue before us is simply this: do you believe that victims of crime have fundamental rights, or do you believe that victims of crime do not have fundamental rights?
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There are many who will attempt to make that issue complicated, and who will argue that the enactment of a victims' rights amendment will both hurt the criminal justice system and even, curiously, that it would be bad for victims. Such a constitutional status will not hurt the system, and it will certainly not be bad for crime victims. And victims' rights cannot be guaranteed by any lesser means than a constitutional amendment.
The Ohio experience contradicts those opponents of the amendment who predict that it will lead to meltdown in the courts.
I believe I can offer a broader perspective on the arguments that the members of the Committee are hearing on the proposed amendment. Years ago I advocated for victim services and victim assistance in prosecutor offices. At that time, only 6 of the 88 prosecutor offices in Ohio had such programs. There was tremendous resistance to providing victims' rights. Prosecutors had fears about victims' rights and victims' involvement in the system. Those fears were not based on fact but on speculation. The arguments I heard then will sound familiar to you: this will bog down the criminal justice system, there will be a tremendous cost, and prosecutors will lose their discretion in prosecuting cases.
There are now victim service programs providing victims' rights in 70 of the 88 Ohio prosecutor offices, most of which receive federal VOCA funding. Prosecutors have been very satisfied with those programs. They have found that victim services and victims' rights actually make their jobs easier. Their speculation about the effects of victims' rights has been proven wrong.
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When I supported and worked for a victims' rights amendment to the Ohio Constitution, which was adopted in 1994, there was tremendous resistance and outright anger from some quarters. We heard the same arguments from the same players that you have heard here at the federal level. Once again, their arguments were based on speculation, not on facts. We heard that this would do away with the presumption of innocence, that the victims' rights would clog the court docket, that we couldn't afford to implement the rights, and that there would be an end to pleas and negotiated dispositions. This simply hasn't been the case. That was simply speculation, and that speculation has been proven wrong.
You will find the Ohio experience is likely to be replicated at the federal level. Prosecutors with experience with strong victims' rights, like the prosecutors in Ohio, will and do support the amendment. The Ohio prosecutors have formally adopted a position in support of federal constitutional rights for crime victims. The other prosecutors may react out of fear of the unknown.
There's a natural resistance to change. Thirty years ago, when Miranda became the law of the land, everyone was afraid. We heard arguments that this would make it impossible for law enforcement to function. In fact, it has made the system better. When ''sunshine laws'' and public records acts were passed, government resisted. Those laws may cause agencies trouble in some cases, but they have made our government better. When constitutional protections were extended to issues of fair housing and equality in education, there was an outcry that this would cause havoc. We can all agree that they have made major improvements in our society. Similarly, victims' rights have been resisted, but where they have been implemented, they have made the system better. We have a better system of justice when the victim is kept informed, when the court can hear from the victim about the victim's safety concerns at a bail hearing, and when the victim is allowed to be present and to make a statement before a plea or before a sentencing.
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There will always be anecdotes about a few ''problem'' victims. Those cases are the exception, and in general the problems with those individuals would probably have happened even in the absence of victims' rights. We have problems with defendants from time to time, where they fire their attorneys, or seem to ''abuse'' their rights, but that hasn't brought the system to a halt.
Let me take a few minutes to go through some of the arguments you are likely to hear, from some prosecutors and others in the criminal justice system.
I've heard it said that the victims' rights amendment will cost too muchprosecutors have claimed they'll have to fire assistant prosecutors to hire victim support staff. This argument is not based on fact. I have never heard of a prosecutor who, as opponents claim, has had to fire assistant prosecutors just to be able to afford to provide victims' rights.
In fact, we have found that VOCA payments to Ohio are at an all time high. Our VOCA payment today is 16 times higher than our first VOCA payment. Every prosecutor's office who asks for a grant to improve victim services can get it. They can use this money to hire a victim/witness assistant, to upgrade their computer system to send out notices with the touch of a button, to provide information to victims about their rights, or other measures that fit their needs.
Opponents to the amendment claim Congress will never appropriate enough money to make it possible for agencies to comply with these victims' rights mandates. I would say, with the VOCA fund at an all time high, the question of appropriations is not central to whether we can implement the amendment. This is a credit to the U.S. Congress, for having the leadership to establish the VOCA fund. You have already laid the groundwork that will make implementation of this constitutional amendment a reality.
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With the VOCA payments making compliance with victims' rights easier, I don't see why so many officials seem to fear enforcement of victims' rights. It simply hasn't been a problem for our prosecutors.
I'll go beyond this. Victims' rights have in many cases saved the criminal justice system money. Prior to Ohio's strengthened victims' rights, the criminal justice system received thousands of calls from crime victims, looking for information about their case, about the offender, about bond, about the trial date, about the person who was handling the case, or about victim compensation. Now, victims are informed about their rights, and they're given the name and number of a person to call if they have questions. Instead of going through a dozen offices till they find someone who can answer their questions, they make one call for information. It seems like common sense, but victims' rights have actually made life easier for the system.
Another example applies to prosecutors: victims' rights allow victims to be more involved in the process. We learn more about the case from meeting with victims and listening to them than we do from a sterile police report. We have a far greater understanding of the facts of the case. There are many other, similar examples.
Opponents imply that if the victims' rights amendment is approved, the criminal justice system will have to make sweeping changes overnight. Again, that is speculation, not an argument based on fact. With the length of time it takes to ratify an amendment, states will have time to focus their VOCA funds, and prepare their implementing legislation. Everyone has time to get ready.
Page 151 PREV PAGE TOP OF DOC I've heard defense attorneys say that guaranteeing victims' rights, in fact merely identifying a person as the victim, will mean an end to the presumption of innocence. I find this argument unfathomable. Identifying a person as a victim no more violates the presumption of innocence that does identifying the suspect as the defendant. In fact, one is part and parcel of the other.
It has even been my experience that victims' rights can often help the defense. Having the victim's input allows the court to make a more informed decision about special conditions of release or the denial of release. If the victim appears at the pretrial release hearing, the defense counsel has an opportunity to explore possible accommodations. The victim may identify her concerns, such as fear the defendant will contact her. Defense counsel then has a better sense of the possibilities, and can argue for certain special conditions of release instead of denial of release.
There are people who, believe it or not, argue that you can't have a victim before a conviction. Many of those same people refer to the crime victim as the ''alleged victim.'' This is an insult to all crime victims. The offender's guilt may be in doubt, but the identity of the victim is rarely in question.
I've also heard arguments that giving victims a voice at plea or disposition hearings will mean an end to negotiated dispositions. This is based on speculation, not facts, and it has been proven wrong. We have just as many negotiated dispositions in Ohio now that victims are involved as we had before. As a matter of fact, our position is stronger when we go into court with a proposed disposition that has the support of a victim. Yes, there have been a handful of cases where a victim was adamantly opposed to a proposed disposition. What happened? The victim went into court, said ''Your honor, I understand the state's position, but I believe he still ought to be convicted of [some other crime].'' It is very important for the victim to be able to comment about the proposed disposition. Currently, in many courts, the judge hears only from the defense. It's important for the judge to hear the victim's views as well. This is true even though most of the time the judge will approve the negotiated disposition anyway.
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There was a recent case in which the son of the Captain of a Sheriff's Department, himself a career police officer, was shot execution style. The Captain and his wife stood up in court and supported the state's proposed negotiated plea for life without parole, as a substitute for a possible death sentence. You can't believe how that kind of comment helps the prosecution and defense convince the court to accept a plea or sentence recommendation. Not only was it a benefit to the prosecution, by making it easier to present that recommendation, but the defendant owes his life to the victims. I will tell you that in about one-third of the capital cases in my office, victims ask us not to seek the death penalty. I would think that the defense bar for this reason alone would favor this amendment almost as much as the prosecutors. The defense bar for capital cases in my county would even say victims have been a resource to them. Not once in my thirteen years has a capital case gone to trial, that wouldn't have otherwise, because the victims insisted on the death penalty. Not once.
We had a capital indictment charging a man with killing his wife. The facts were horrendous. The sister of the woman who was killed mounted a letter writing campaign to ensure that the offender received the death penalty. The children of the murdered woman didn't want their dad executed. They wanted him to be given life imprisonment. We met with the sister several times. In the end, she stood up in court and told the judge, ''I want this man to receive the death penalty. But I respect the children, and I support them, and if they want their father to receive life imprisonment, their opinion should carry more weight than mine.''
When you talk about sentence recommendations, most of the time the victims choose not to be involved. When they do, they almost always support the state's recommendation if they had the opportunity to consult with the prosecutor before the prosecutor reached a decision on the recommendation.
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The primary reason why we haven't had a problem with allowing victims to have a voice is that at the outset of the case, we meet with them. We explain to them that we need their input, but that by law we make the final decision. The victims know up front that they will not have a veto, but that they have an important role. And we find it is important to listen to them. In many cases, the victim has an interest in restitution, or in having the court order some type of counseling, such as counseling for drug or alcohol abuse, as part of the court sanction. This may even be more important to them than a long prison sentence.
We always discuss the possibility of a negotiated disposition with the victim before we even approach the defense counsel; we never present the disposition to the victims as a done deal, and I believe that is why we have not had a problem with letting victims be heard on our recommendations. If we have qualms about our ability to justify a decision to someone, I would question why we're making that decision. This kind of accountability for our actions that results when victims are allowed to be heard in the process is a plus. The fear that victims will have undue influence over the prosecutor and the courts in determining the proper disposition of a case is, once again, based on speculation, not on fact. Victims will have a voice, and the system will be better for it.
Some officials argue that there should be no right of enforcement. Without any possibility of enforcement, an amendment is meaningless. There must be some mechanism to enforce the rights, or those officials who are opposed to victims' rights will continue to disregard them, just as they now do under statutes. And, as I stated earlier, compliance is pretty easy, so there should be no concern about enforcement. The draft language allows states and the federal government to create mechanisms to enforce the rights. I approve of that.
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It has been argued that victims' rights is a matter that should be left to the states. The same arguments were made about Miranda, and about slavery, about the Americans with Disabilities Act, and about a lot of other things. If these rights are really important, and part of our fundamental values, they shouldn't just be left to the states. They should be given the highest protection we can offer. I would ask if any of you would agree that defendants' rights is a matter that should be left to the state, if those rights can be properly guaranteed under state law. If you believe, as I do, that they could not, victims' rights should benefit from that same constitutional status.
It has been claimed that this amendment will give victims a right to a speedy trial, and that that means victims could force prosecutors to go to trial before they're prepared. This is a non-issue. Firstly, most victims want the prosecutor to be successful they don't want to do anything to harm the prosecution.
Secondly, the language proposed gives victims a right to ''seek relief from an unreasonable delay of the final disposition,'' or, in the Senate version, to a final disposition ''free from unreasonable delay.'' A legitimate need to prepare for trial is reasonable. The Supreme Court has already held that both the prosecution and defense have a right to adequate time to prepare their case. What this will do is give prosecutors an additional tool to argue against a defendant's third, fourth, or ninth request for a continuance.
The court needs to understand the interests of the victim along with the other interests in the speed of a case. We had a case where a half dozen kids were severely abused by their parents over a long period of time, and the oldest daughter died as a result of the abuse. The children were put in foster homes, and the case dragged on. The defense had no interest in a speedy resolution the defendants would be in jail for years either way. But the kids couldn't be adopted until there was a final order. Courts need to know the special interests a victim may have when ruling on a continuance.
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Some people say we should be concerned because the term ''victim'' is undefined. My response is that definitions don't properly belong in the Constitution. Can you imagine if our founding fathers had had to define ''due process'' and ''fair trial''? Unlike those terms, ''victim'' is capable of being defined, and would be defined in any implementing legislation. In Ohio, we have developed a workable definition; other states have, too. This is not an obstacle to the amendment. Furthermore, we should let the states define victim.
I have one more point regarding the objections you will hear about the amendment. There can always be anecdotes to illustrate any potential problem. There are a handful of cases in which victims' rights caused a problem for prosecutors in Ohio. But in far more cases, victims' rights are actually a benefit to the prosecutor, and in a surprising number of cases, a direct benefit for the defendant. Victims' rights benefit the system in general, not only because an informed victim who feels respected actually makes a better and more cooperative witness, but they restore the public's confidence in the justice system. You will find that the arguments against the amendment, as we learned in Ohio, are based on speculation and on fear; not on fact. And the speculation has already been proven wrong, in Ohio and other states.
Given the success we've had with victims' rights in Ohio, you might be wondering why Ohio prosecutors support an amendment to the U.S. Constitution. Why couldn't this be done by statute?
My first response is, as I mentioned earlier, that if statutes can protect important rights, why don't we remove the constitutional protections of the defendants and leave their rights up to the various legislatures. I think we'd all object to that, because we know that those important rights can't be truly guaranteed until they are protected by the U.S. Constitution.
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There are other reasons. One is uniformityOhio residents victimized across the state line in Kentucky should be guaranteed the same basic level of rights that they would enjoy in our state.
Another reason is strength. Victims' rights should be guaranteed and protected to the same extent as defendants' rights. There are studies showing that even in the states with the strongest laws, a large number of victims are denied their rights. There are still some who will not honor victims' rights until they are given the weight of the U.S. Constitution.
In fact, you can tell by some of the new opposition that people fear the strength of a constitutional amendment. Many of the people opposing the amendment say they're in favor of victims' rights. In fact, everything in the proposed amendment is already in existence in one or more states. What they really fear is that now these rights will mean something.
A constitutional amendment also provides lasting protection for victims' rights. Statutes can be changed, but a constitutional amendment is permanent.
Still another reason for a federal amendment is that it would bring about a change in attitude and perception. All officials, the general public, and victims understand the basic rights of defendants, because they are guaranteed in the U.S. Constitution. From high school civics classes, to television dramas, to law school, all people hear about are the defendants' rights. If victims' rights received the same protection, they'd have the same universal recognition. This is important for the credibility of our system of justice. It would create the perception and reality that our criminal justice system not only protects the defendants, but also provides a fair shake for victims.
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Finally, because the rights we're talking about are fundamental rights that need to be guaranteed for all Americans. We've seen an evolution in the rights of defendants. Two hundred years ago, no one could have envisioned what ''due process'' for the defendant would come to mean in our time. No one could have envisioned what the courts of today are like, or the roles judges are now asked to play.
I serve on the Ohio Futures Commission, and we will be making recommendations to the Ohio Supreme Court and Ohio Legislature on the role and structure of our courts in the next century. Courts are evolving; we're seeing more alternative dispute resolution mechanisms coming into play, we're seeing an evolution in the role of the judge, the role of the jury, and the substance of the disputes that should be subject to the judicial process. The victims' role must also be allowed to evolve, so that they can have a fair, appropriate role. It is crucial to our system of justice that victims have meaningful and enforceable rights, to make those evolving systems the very best they can be.
From where I sit, victims' rights are a ''win-win'' situation. Victims' win because they have the opportunity to be involved. The victim has some investment in the process and shares in the results. The system wins because the level of public confidence has been shown to rise where there are strong victims' rights.
I do believe that victims have fundamental rights. I do not believe that state statutes are sufficient to protect those rights. I do know that the United States Constitution is the best place to preserve, protect, and defend those rights.
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Mr. HYDE. And now Mr. Bruce Fein.
STATEMENT OF BRUCE FEIN, MCLEAN, VA
Mr. FEIN. Thank you, Mr. Chairman. I appreciate this opportunity to express views on the prudence of a constitutional amendment that would celebrate and enshrine certain specified victims' rights.
I think there is a consensus amongst all the testimony both here and on the Senate side that victim rights time has come. And the question is how best can we implement and vindicate those rights, especially because we are in, relatively to the law, a rather incipient stage of experimentation with our rights, what difficulties may or may not arise, defining very problematic terms like who is a victim, who is not; what is unreasonable delay, what is not.
Although it is suggested that haste is necessary here because the States have been sluggard, I think if you look historical about legal evolution, the speed with which victims' rights statutes and amendments have caught on is almost unprecedented in their mercury-footed pace. And I think that is all to the good.
The real question, it seems to me, is whether the constitutional amendment would make a contribution to that particular goal without compromising our overriding reverence for a Constitution that celebrates succinctness and confine it to those features of our political life that we find fundamental to our liberties.
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If you examine the history of the amendments, I think the victim rights amendment falls short of the characteristic standard we have used before we even deliberate on a constitutional amendment. For instance, most of the amendments addressed the fairness and political legitimacy of the way in which we represent ourselves. These relate to direct election of the Senators, how we elect the President, the age of the President, two-term Presidency, the franchise amendments relating to race and to gender, those sorts of things. Then we have a second category of amendments where historically we have found that there has been a tendency by majorities to shortchange the fundamental rights of minorities or a disfavored exercise of category. And that is where we find the 13th amendment and the equal protection clause of the 14th amendment comes in.
We enacted those laws. We had experienced that legislative bodies were inclined to overreach their bounds on issues of race or gender or otherwise, and therefore, we erected those protections, recognizing all along, however, that whenever we constitutionalize a right, we inject a rigidity into our federalist system, what I call an element of arteriosclerosis. We already suffer from that too much anyway. Why do we want to add to the disease? Flexibility, time, trial and error is a hallmark of enlightened legislative evolution. We don't come to quick and accurate answers on the first occasion. Social problems are much too complex to hope for such a happy result.
Then we lastly have amendments that we have employed where it is thought imperative to confer a power that didn't otherwise exist on the National Government and State governments. And characteristic of those is maybe what we call the infamous income tax amendment came in time to bail us out of World War I. Anyway, we did have to fight a little before the armistice came. And also an amendment that enabled States to regulate alcohol sales, alcohol that crossed State lines, and that is a remnant of the prohibition amendment.
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But other than those very high standards and then the bill of rights that was almost a compromise of agreement to ratify the Constitution itself, the Nation, I think, has profited by resisting the temptation to amend the Constitution for light and transient causes. And ''light and transient'' isn't meant to denigrate the power and strength of a particular right. We have the National Labor Relations Act that celebrates the right to join unions and to strike. That doesn't have constitutional status. The same is true with regard to rights for the mentally ill or the disabled. Those are all statutory construction, and we don't say, gee, it is really a denigration of those rights because we don't exult them into the constitutional firmaments.
The Constitution is there largely in this area to protect against those who are disfavored in the legislative process, those who have a difficult time having their voice heard in the corridors of power, and have a hard time getting through the legislative process an approach that addresses their particular grievance through trial and error.
The victims' rights groups have the most stupendous success story perhaps since the civil rights days in the 1960's. The speed with which legislation has been enacted, strengthened, et cetera, is almost unheard of in the legislative process, as you are well aware, Mr. Chairman, being in this Chamber such a long time. And it seems to me it is vastly premature at this time to leap into a constitutional amendment process, which is not innocuous in any event. It does have its own difficulties because of necessary ambiguities.
One of the most important ones is who is a victim? Is a victim a creditor, a niece, a nephew, a loved one, you know, a partner, a close friend? All those things are left unanswered by the proposed language and create a legislative headache trying to sort, or judicial headache trying to sort those out.
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Now, of course, you are always going to have some ambiguity in anything you do, and ambiguity alone isn't sufficient to scuttle a proposed amendment. But this ambiguity seems to me, you know, almost akin to an ink blot, and moreover its advantage over the existing approach to addressing victims' rights seems marginal at best.
Last, I think your own pending Federal legislation really wars against the necessity of this amendment. Mr. Chairman, there isn't a single semicolon, dotted I, or crossed T that you would need to change in your statute that would be at all flawed if the amendment just stayed in this committee and went nowhere. You don't need to do anything to advance the legislative ball. And I know of no case in the State courts or the Federal courts in 20 years or more of litigation that casts a cloud over any victims' rights that has been considered as contrary to a constitutional right of a defendant in criminal proceedings. Not one. And that is in light of the fact that you have many judges who are inclined to rather imaginative interpretations of State and Federal Constitutions. And indeed, that shows why I think the State, 50 States at legislative levels, more than half at the constitutional levels, have proceeded without any Federal constitutional inhibitions in experimenting with their particular approaches.
Lastly, I would like to comment on why I think there continues to be a lingering grievance against these, the State efforts. Lawyers, jurists, basically are backward-looking, very conservative folks. For most of the careers of a large number of rather elderly, geriatric you might say, judges and prosecutors, they ran the courtroom, they ran the prosecution, they didn't have any interference, and they don't like these new victims' rights statutes psychologically. It interferes with the modus operandi. So they have a rather grudging dispensation of the rights that they administer under the law.
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But that is just a matter of time before they are replaced by those who are my age and younger, who have grown up in an era that celebrates victims' rights and be far more accommodating. And therefore the resistance of full and plenary implementation of State rights laws I think will just pass and further substantiate that this amendment really is not a constructive exercise in their overall political constellation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fein follows:]
PREPARED STATEMENT OF BRUCE FEIN, MCLEAN, VA
Mr. Chairman and Members of the Committee, I am grateful for the opportunity to testify on a House Joint Resolution proposing a Victims' Rights Amendment to the Constitution of the United States. At present, I oppose the amendment, not because I applaud victims' rights less, but because I cherish the majesty of the Constitution more.
It should not be amended for light and transient causes; otherwise, it would lose its comprehensibility and community reverence, an important cornerstone of government legitimacy. Further, human fallibility in prophesying the consequences of laws militates against constitutional amendments because unforeseen mischief can be cured only by the supermajorities necessary for repeal. The social harm in the interim may be substantial, as with the Prohibition amendment. Finally, amendments inject an undesirable element of arteriosclerosis into the bloodstream of federalism by mandating national uniformity when the problem addressed presents distinct local dimensions or would profit by experimental approaches in the social laboratories of the 50 States.
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The sagacious presumption against constitutional amendments should be subordinated only in the following circumstances: To correct a perceived flaw in state or national political architecture that establish the ground rules for playing the democratic game, e.g., the Twelfth, Fifteenth, Seventeenth, Nineteenth, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, and Twenty-Seventh amendments: To create a power of apparent state or national necessity, i.e., the Income Tax amendment and the Twenty-First Amendment; or, To protect a class of citizens or a very significant freedom or liberty where experience teaches the likelihood of abuses by legislative majorities is pronounced, e.g., the Thirteenth and Fourteenth Amendments.
The proposed Victims' Rights Amendment satisfies none of these three categories. It does not address the political architecture of the nation. Every right enshrined by the amendment can be established by federal and state laws without encountering any serious constitutional challenge. And, crime victims are not forgotten stepchildren in the political process. Indeed, they command virtually universal sympathy, which explains their stupendous success in obtaining the enactment of scores of victims' rights statutes through legislation or voter initiative. In other words, crime victims occupy the political catbird seat; no amendment is necessary to rescue them from tyrannical majorities.
The reasons advanced to justify a Victims' Rights Amendment seem to encroach on the domain of the casuist. It is said that state judges and prosecutors disobey state victims' rights laws. If so, they would be equally recalcitrant to a constitutional amendment. It is no less a violation of the judicial oath to ignore a state law as a federal constitutional command. The remedy for misbehaving judges and prosecutors is their replacement by individuals who will honor their official oaths. Moreover, the problem with a grudging dispensation of victims' rights by judicial and prosecutorial officers will solve itself through time. Legal officers are characteristically backwardlooking, and resist any novelty. The victims' rights campaign is but adolescent, and post-dates the formative training years of many incumbent judges and prosecutors. They instinctively resist injecting victims' rights into their more cozy modus operandi, but they will die, retire, or resign in favor of younger judges and prosecutors who have been trained to sympathize with and to respect crime victims. The new blood will not shortchange the enforcement of state victims' rights laws.
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It is also said that crime victims deserve the same constitutional dignity as suspects or criminals, whose rights are enshrined in the Constitution. But that argument exalts semantics over substance. History and intuition teach that the latter belong to politically impotent classes exceptionally vulnerable to the passions of majorities. The likes of Timothy McVeigh hold no sway in legislative chambers. Constitutional rights for the accused or convicted are imperative to check the natural propensity of the majority for unreliable Kangaroo courts to avenge despicable crimes. None of these observations obtain for crime victims.
Crime victims further insist on a constitutional amendment to boost their psychological well-being by making them feel as wanted as crime suspects. But the idea that amendments are justified as a surrogate for encounter-group therapy needs no rebuttal.
The texts of the proposed amendment and a companion federal implementing statute demonstrate that the political exercise smacks more of a victims' rights carnival than of sober-headed deliberation. For instance, the amendment crowns victims with a galaxy of participatory rights in criminal proceedings, but then authorizes each and every one to be set aside ''when required by the public interest,'' a standard so elastic as to make the siren song of victims' rights nothing but sound and fury signifying nothing. If a state declines to create any participatory rights for crime victims by asserting a public interest in speedy criminal proceedings and the use of civil remedies to make crime victims whole, the amendment would be undisturbed. In other words, the proposed Victims' Rights Amendment is a mirage that will further damage the credibility and esteem of Congress, which have already nose-dived to alarming levels.
Page 165 PREV PAGE TOP OF DOC The proposed federal implementing victims' rights statute speaks volumes about the superfluity of the would-be constitutional amendment. The bill would be constitutional no matter what the fate of the amendment; not a single comma, semicolon, or period need be changed in the proposed legislation to pass constitutional muster under existing law. The victims' rights created would be ''necessary and proper'' to the enforcement of federal crimes under Article I, section 8, cl. 18 of the Constitution.
Finally, cavalier cavorting with victims' rights threatens a hornet's nest of legal tussles that would further clog lead-footed judicial dockets. The proposed amendment, for instance, endows crime victims with a host of rights, but neglects to define the pivotal word ''victim,'' akin to leaving the Prince of Denmark out of Hamlet. The word bristles with ambiguity. Possibilities include parent, spouse, brother, sister, uncle, aunt, niece, nephew, grandparent, great grandparent, guardian, creditor, business partner, student, bosom friend of the same or opposite sex, or political crony. Elaborating the ambiguity stops only as a concession to the shortness of life. The crystallization of the meaning of ''victim'' in the amendment through case-by-case interpretation would consume endless years, and make Jarndyce v. Jarndyce in Charles Dickens' Bleak House seem like a swift summary judgment, not to put to fine a point upon it.
Similarly problematic in the proposed amendment is the right of a victim to ''seek relief from an unreasonable delay of the final disposition of the proceedings relating to the crime.'' Unreasonable delay is typically in the eye of the beholder. A prosecutor may desire to desist from trial in hopes of a superior superseding indictment. The crime victim may demand an instant trial for therapeutic reasons or to establish a right to monetary or other restitution. The unreasonable delay standard is thoroughly unedifying to a judge required to resolve the conflicting desires of the prosecutor and victim. Language in a constitutional amendment, however, should be more than an ink blot!
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Mr. HYDE. Well, thank you, Mr. Fein, for your usual trenchant discussion, because it is very helpful.
Just a couple of points. One of the reasons there was such speed in passing victims' rights legislation may have been that it was so long delayed. It was long overdue. And in listening to Ms. Davis' story, I just feel, and I am certainly not a constitutional scholar, but the emphasis on the accused's rights is stressed so much in our Constitution, it is almost an ACLU mentality that the only concern in our whole system is to protect the accused. Now, the accused needs protection, I will give you that, but the justice system is an integrated thing, and justice involves a victim.
Mr. FEIN. Yes. And I think, Mr. Chairman, I entirely agree with you, but I would disagree with your analysis of prevailing constitutional law. The Supreme Court of the United States has made quite clear that victims' rights, victims' impact statements are wholly appropriate in sentencing proceedings. And, indeed, there was no constitutional difficulty in you creating special participatory rights for the victims of Mr. McVeigh's heinous terrorist act in Oklahoma City.
Mr. HYDE. But isn't it sad, isn't it sad that Ms. Davis has run the gamut of State remedies? I don't know what else she can do. She has been to every State attorney, every policeman, every judge; not everyone, of course, but she has been through the system, and it has utterly failed her. And this is not some isolated, undeveloped island. This is Dallas.
Page 167 PREV PAGE TOP OF DOC Mr. FEIN. Yes, I know, Mr. Chairman.
Mr. HYDE. She has to come to Congress.
Mr. FEIN. And there isn't, it seems to me, any kind of law that you don't have occasional, you know, aberrational applications and callousness, especially in this area where we are trying to change the conventional way of doing business from people who have been in the game a long time. And I don't deny there may be misapplications or, too, grudging dispensations at the State level, but you don't do that. You don't try to cure that with a constitutional amendment. It is like using a nuclear bomb to wipe out a little tiny tank. It is overkill.
Mr. HYDE. You see, that is where we disagree. You said you are against amending the Constitution for light and transient causes.
Mr. FEIN. Transient, yes.
Mr. HYDE. It may be transient in that a life is of limited period of time, but the subject of victims of crime is an ongoing, permanent problem, and we need someplace for people like Ms. Davis to turn when the State system fails. That is a sentimental view of the law, I understand. I understand. But I am reluctant to let our system fail the Ms. Davises of this world
Mr. FEIN. But I didn't use ''transient,'' I think, in the sense that you have interpreted. ''Transient,'' I didn't mean that, well, a life is transient, and therefore a misapplication has a limited damage. Transient in the sense that the more grudging approach to victims' rights will solve itself through a little more time as the older jurists and lawyers die, resign, retire, and are replaced by the new blood that has been steeped in the importance of victims' rights. That is what I meant by ''transient.'' It is in an institutional sense that it is transient and, it seems to me, militates against a constitutional amendment.
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Mr. HYDE. Well, I just want you to know that we pay attention to what you say, Mr. Fein.
Mr. SCOTT. Thank you, Mr. Chairman. I just wanted to follow up briefly on that same point and ask Mr. Horowitz a question.
The discussion of the situation with Ms. Davis was in Texas. I understand that Texas has a constitutional amendment on victims' rights which includes the right to reasonably be protected from the accused throughout the criminal justice process, the right to notification of court proceedings, the right to be present at all public court proceedings related to the offense, the right to confer with representatives of the prosecutor's office, the right to restitution, and several others.
With those rights why wasn'twhat would the Federal Constitution do for her that the State constitution didn't already provide?
Mr. HOROWITZ. Well, if I might pick on, Congressman, one particular element of what you said, it appears that she had some contact with the prosecutor's office, but I don't know that it sounds to me as if it was described as meaningful contact with the prosecutor's office.
Mr. SCOTT. Well, how does the Federal constitutional amendment provide anything more than what she is already provided in Texas?
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Mr. HOROWITZ. I
Mr. SCOTT. Let me ask you another question. In Ohio, your constitutional amendment that you say is working very well, does that have a provision in it that the section does not abridge any other right guaranteed by the Constitution of the United States or of this constitution for the accused?
Mr. HOROWITZ. It does.
Mr. SCOTT. And that constitutional amendment isoperates under the kind of Federal overlay where the Federal Constitution guarantees certain rights?
Mr. HOROWITZ. That is correct.
Mr. SCOTT. And one of the good things that has happened, as I understand it, is there is significant Federal money going into Ohio for victims' rights, victim/witness assistance and whatnot?
Mr. HOROWITZ. That is correct, and other States as well.
Mr. SCOTT. How did the Ohio Constitution get Federal money into that problem?
Mr. HOROWITZ. The Victims of Crime Act distributions to the 50 States, which are allocated in our State by the State Victims Advisory Board, are for victims' programs. In our State, Ohio has prioritized county prosecutors' offices as recipients of victim programming. So that iswas a choice by our State.
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Mr. SCOTT. So the thing that has worked out well is the funding so that you have more prosecutors, more victim/witness prosecutors? Let me ask Ms. Edwards a question.
Ms. Edwards, would we be better off funding the programs to help the victims rather than fooling with a constitutional amendment?
Ms. EDWARDS. Well, in my opinion we would be better off because we can do it today. We don't have to wait for 38 States to ratify a constitutional amendment. We can do those things today, and those are things what victims need.
Mr. SCOTT. Thank you.
And, Mr. Horowitz, another question. If you were to determine that charges should be dropped, would there be a victim with rights to be heard in the Federal constitutional amendment process?
Mr. HOROWITZ. First of all, Ms. Davis would have heard from me a lot longera lot earlier than 3 or 4 days before her trial if there was a problem. She would have known from us practically at indictment if there was a potential problem with the case and would have been invested with the appreciations as to what the choices were. So while the end result may have been the same, herher feeling about the system would have been a whole lot different.
Page 171 PREV PAGE TOP OF DOC Mr. SCOTT. That is not the constitutional amendment. That is because you are more sensitive to the victims, not because theof any right that she has under the Constitution. If you were to determine that you were going to drop the charges because for whatever reason, would she have rights as a victim under the constitutional amendment, Federal Constitution amendment, that you are supporting?
Mr. HOROWITZ. She would have a right to express her objection to that action to the court.
Mr. SCOTT. And so there would be a hearing?
Mr. HOROWITZ. Not a hearing because of her expression of objection. The right would be to be at the hearing in which the case was already scheduled to be disposed of. She would have an opportunity to say to the court what her objections were to that action.
Mr. SCOTT. If you had had a series of similar cases, like four or five people on a burglary case, and if the last case were to come up and the victim didn't want to go along with it, what relevance would the victim's testimony have on your decision to offer the same plea bargain to the fifth person that you had offered to the first four?
Mr. HOROWITZ. First of all, we would certainly not treat the fifth defendant any differently than the prior four. They would get the same treatment. The relevance would be that for reasons that are best known to victims, it would be important for the victim to be able to stand up and express in open court what damage, hurt, or pain or suffering he or she had at the hands of the defendant, even though it might not equal any differentor would not equal any different treatment against that particular defendant.
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Mr. SCOTT. But in terms of evenhanded justice, their testimony would be irrelevant to the proceedings?
Mr. HOROWITZ. Under your scenario, with five in the row that are exactly the same. But we rarely have five dispositions in a row that are exactly the same.
Mr. SCOTT. Would you tell the victim ahead of time that their testimony would be useless in terms of a disposition?
Mr. HOROWITZ. No, but I would tell them in Ohio, in fact, their testimony would be very significant because it almost always provides some information to the court that is relevant to the question of punishment. I mean, it is not just the term of the punishment that is at issue. There are other side issues with the punishment as well.
Mr. SCOTT. If I could?
Mr. HYDE. The gentleman's time has expired, Mr. Scott.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. I want to address a question to Mr. Fein, whose scholarship in terms of the Constitution continues to impress me. I don't know if you have the proposed amendment before you, but in section 3, it is very short, the Congress and the State shall have the power to enforce this article within their respective jurisdictions by appropriate legislation, including the power to enact exceptions when required by the public interest. How does this interface, if you will, with the supremacy clause?
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Mr. FEIN. Yes.
Mr. DELAHUNT. And do the exceptions refer to the constitutional amendment itself? Is it a reservation of power issue? And the relationship between section 3 and the supremacy clause, if you could explain it to me.
Mr. FEIN. I think it is clear under existing constitutional law, especially in light of a Supreme Court decision just a few hours ago in the City of Boerne case, that absent this amendment, Congress could not mandate that States enforce victims' rights provisions under their laws. And that would be a matter of State discretion. That is the existing power of Congress. The amendment, however, would add to thethat existing baseline a power ofan obligation on the States to enact these victims' rights statutes.
So I wouldn't have problems just in a matter of constitutional theory about the provision, but as a matter of application I think it really suggests that the amendment is almost more appropriate or befitting of vaudeville than seriousness, because the public interest standard that is authorized to basically bail out of the amendment turns the amendment into a virtual nullity.
For instance, virtually all courts would acceptthat is a State might simply, because they want to expedite the criminal justice process which is already lead-footed in most places, and because there are civil justice remedies for victims of crimes, they can sue for conversion, assault, battery, et cetera; that they wish to adopt none of these celebrated victims' rights in the amendment.
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Mr. DELAHUNT. This is their option though.
Mr. FEIN. Yes. Well, you can bail out of the entire amendment if you don't like it. Well, gee, that is sound and fury signifying nothing. Is the exercise really worth it at that point? And that seems to me again to show that we ought to be very cautious before we approach the problem in this way, which I think is much too hasty and unnecessary.
Mr. DELAHUNT. Thank you, Mr. Fein.
I want to congratulate Mr. Horowitz on his focusing energies on victim rights. And would you describe your experience as having been replicated elsewhere in Ohio?
Mr. HOROWITZ. In Ohio, yes.
Mr. DELAHUNT. I mean, are all the prosecutors in Ohio, have they elevated victim services and victim rights as you yourself have done?
Mr. HOROWITZ. Not yet.
Mr. DELAHUNT. Not yet. How many prosecutors in Ohio?
Mr. HOROWITZ. There are 88 county prosecutors.
Mr. DELAHUNT. OK. And again, given from your vantage point as Chair of the Victim Advisory Board or Victim/Witness Advisory Board, what is your evaluation of what has occurred within Ohio amongst prosecutors' offices?
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Mr. HOROWITZ. Some of the prosecutors who several years ago, one in particular, would have argued that it was the victim's right, much as a person who is drafted into the Army's obligation to go fight a war, that it was their legal obligation to be a victim and do whatever was told to them, that same person has an active, aggressive, successful victims' program in his office right now, and over 70 of us have formal programs.
Mr. DELAHUNT. Out of70 out of 88?
Mr. HOROWITZ. Out of 88, yes.
Mr. DELAHUNT. As a result of the State constitution?
Mr. HOROWITZ. As a result of funding, statutes, and later the Constitution, as a result of the process that is involved evolved.
Mr. DELAHUNT. I would just indicate that my experience in Massachusetts in my former life as a geriatric prosecutor, I happen to be a freshman now, Mr. Fein, so I am reenergized, but I understand the import of your remarks, I think, Mr. Horowitz, and I know I am out of time, but I am sure the Chair will indulge me, I am the last member of the panel, that there have been great successes. And I think it is important to understand this.
In the course of the last 20 years, you know, victims' rights has become a priority within the criminal justice system, rightfully so and appropriately so. And I think as a result of training and attitude, that there is a greater understanding, particularly in the area of domestic violence, that certain conduct is reprehensible, cannot be tolerated, and if we are going to have a healthy, dynamic criminal justice system, it is important to elevate the status of the victim. That has happened because of people such as yourself doing it. And I think that supports the contention by Mr. Fein in terms of attitude in approach to this particular issue, and sensitivity about the status of the victim.
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Mr. HYDE. I thank the gentleman. His time has long since expired.
Mr. DELAHUNT. Thank you, Mr. Chairman.
Mr. HYDE. And we must be fair to Mr. Scott. But we are going to adjourn. I want to thank you all for an enormous
Mr. DELAHUNT. Mr. Chairman, you are always fair to Mr. Scott.
Mr. HYDE. Thank you. I appreciate that. I will hang on to that thought.
I want to thank this panel, though, for an enormously important contribution. This is a tough subject. There are a lot of problems with a constitutional amendment, a lot of problems conceptually. There is no reason in the world why victims' rights shouldn't be parallel with the rights of the accused. They are no better and no worse. But they deserve consideration, and they have been left out.
On the other hand, if we adopt a constitutional amendment, we could interfere with the efficient operation of our courts and justice, and we are not accomplishing anything.
Now we have problems with the definition of who is a victim and what is reasonable time and so forth. There are all kinds of problems that could involve litigation and would slow up trials. And the victim who was looking for vindication gets more frustration. So that is a problem.
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I take it you are not objecting and even supportive of the statute.
And there is a reason there is a statute right alongside the amendment, because if we can't get an amendment, the question is can we get the statute, and will that satisfy the victims' groups? Maybe it won't, but we all have to work through this and understand the difficulties with a constitutional amendment. And it is so much easier to do a statute, but will it be effective? Does it vindicate victims' rights?
And to the judges that testified before above and beyond the call of duty, thank you for staying. I think it was rewarding for you to stay as it was rewarding for us to hear.
And, Ms. Davis, God bless you. We will keep trying.
Ms. DAVIS. Thank you very much.
Mr. HYDE. Thank you. Thank you. The committee is adjourned.
[Whereupon, at 1 p.m., the committee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
Page 178 PREV PAGE TOP OF DOCPREPARED STATEMENT OF HON. ELTON GALLEGY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I am an original cosponsor and strong supporter of this important amendment to our constitution to ensure that our justice system treats the victims of crime with at least the same respect and consideration as it treats persons who commit crime.
Amending the constitution is not an easy process. It is also something that should not be undertaken lightly. However, in limited circumstances in cases involving a fundamental human right, amending the constitution is not only appropriate but necessary. And the rights of crime victims not to be victimized yet again through the processes by which governmental bodies and officials prosecute, punish and release the criminal is most certainly a fundamental human right.
Mr. Chairman, under our existing system, the rights of defendants, often violent criminals, are enshrined in the supreme law of the land, the Constitution. Unfortunately, rights of victims are only protected by a patchwork of laws. The result is that the rights of victims are simply not taken as seriously as the rights of criminals.
In 1982, California was the first state to pass an amendment to their state constitution to provide rights to victims. Since that time, twenty-one other states have enacted some form of constitutional protection for victims of crime. However, despite this progress at the state level, victims of crime or their surviving relatives have come to realize that there is a higher power. Whenever the federal civil rights of criminals, protected in no less than six amendments to the federal constitution come into conflict with the state rights of victims, the federal rights of accuse] criminals always prevail.
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The only way to rectify this situation is by making a change at the national level in our federal constitution. Otherwise, the rights of victims of crime win continue to take a back seat to the rights of the accused.
Mr. Chairman, the constitutional amendment and corresponding legislation you have introduced are reasonable, measured responses to this problem and I urge their prompt consideration by flus committee and the full House of Representatives.
Hon. NEWT GINGRICH, Speaker,
|U.S. Department of Justice,|
|Office of Legislative Affairs,|
|Washington, DC, June 24, 1997.|
U.S. House of Representatives,
DEAR MR. SPEAKER: Enclosed for the consideration of the Congress is a draft legislative proposal and accompanying materials entitled, the ''Victims' Rights Act of 1997.'' We request that it be referred to the appropriate committee or committees introduced, and passed. We have forwarded an identical proposal to the President of the Senate.
This legislative package is but one of several steps that the Administration has taken to support rights for victims of crime. Last year the President directed that the Department of Justice take the lead on a number of fronts concerning victims' rights, one of which was to recommend legislation that may be necessary or desirable to identify and protect victims' rights. The Department has been hard at work with its own components, which constitute a large Dart of the federal law enforcement and criminal justice system, and with other federal agencies whose missions involve them with victims. That work is described in a report that the Attorney General submitted to the President in April of this year. In addition, we have prepared the enclosed draft legislation, key provisions of which would accomplish the following in federal cases:
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Establish a right of victims to be present throughout all public court proceedings to the maximum extent consistent with the Constitution.
Give victims who miss work to attend proceedings the same protection accorded to jurors against adverse action by employers.
Establish rights of victims to be heard both orally and in writing concerning release decisions, plea and sentencing.
Broaden victims rights to be informed, to attend, and to be heard, in juvenile proceedings.
Authorize prosecutors to enforce victims' rights to be present and to be heard through applications for mandamus and appeal.
Authorize pretrial detention of defendants who seriously threaten victims regardless of the nature of the charge.
Strengthen victims' rights to restitution and compensation, and the remedies for collecting and enforcing restitution.
Authorize funding for an automated victim information and notification system, to ensure consistent notice to victims concerning proceedings and other important occurrences in their cases.
Page 181 PREV PAGE TOP OF DOC We look forward to working with the Congress in the days and weeks ahead to enact this important legislation which is critical in ensuring that the rights of victims of crime are recognized an] addressed in an appropriate fashion.
Thank you for your consideration of this matter. If we may be of additional assistance we trust that you will not hesitate to call upon us. The Office of Management and Budget has advised that there is no objection from the standpoint of the Administration's program to the presentation of this report and that its enactment would be in accord with the program of the President.
|Assistant Attorney General.|
Hon. ALBERT GORE, JR., President,
|U.S. Department of Justice,|
|Office of Legislative Affairs,|
|Washington, DC, June 24, 1997.|
DEAR MR. PRESIDENT: Enclosed for the consideration of the Congress is a draft legislative proposal and accompanying materials entitled, the ''Victims' Rights Act of 1997.'' We request that it be referred to the appropriate committee or committees introduced, and passed. We have forwarded an identical proposal to the Speaker of the House.
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This legislative package is but one of several steps that the Administration has taken to support rights for victims of crime. Last year the President directed that the Department of Justice take the lead on a number of fronts concerning victims' rights, one of which was to recommend legislation that may be necessary or desirable to identify and protect victims' rights. The Department has been hard at work with its own components, which constitute a large part of the federal law enforcement and criminal justice system, and with other federal agencies whose missions involve them with victims. That work is described in a report that the Attorney General submitted to the President in April of this year. In addition, we have prepared the enclosed draft legislation, key provisions of which would accomplish the following in federal cases:
Establish a right of victims to be present throughout all public court proceedings to the maximum extent consistent with the Constitution.
Give victims who miss work to attend proceedings the same protection accorded to jurors against adverse action by employers.
Establish rights of victims to be heard both orally and in writing concerning release decisions, plea acceptance, and sentencing.
Broaden victims' rights to be informed, to attend, and to be heard, in juvenile proceedings.
Authorize prosecutors to enforce victims' rights to be present and to be heard through applications for mandamus and appeal.
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Authorize pretrial detention of defendants who seriously threaten victims regardless of the nature of the charge.
Strengthen victims' rights to restitution and compensation, and the remedies for collecting and enforcing restitution.
Authorize funding for an automated victim information and notification system, to ensure consistent notice to victims concerning proceedings and other important occurrences in their cases.
We look forward to working with the Congress in the days and weeks ahead to enact this important legislation, which is critical in ensuring that the rights of victims of crime are recognized and addressed in an appropriate fashion.
Thank you for your consideration of this matter. If we may be of additional assistance we trust that you will not hesitate to call upon us. The Office of Management and Budget has advised that there is no objection from the standpoint of the Administration's program to the presentation of this report and that its enactment would be in accord with the program of the President.
SUMMARY OF DRAFT VICTIMS' RIGHTS ACT
SECTION 2VICTIM'S RIGHT TO NOTICE AND INFORMATION
Authorizes necessary sums in each fiscal year for establishment and operation of automated victim information and notification system.
Strengthens standards and procedures for HIV testing of defendants and informing victims of defendant's HIV status, where offense risks transmission of the virus.
Authorizes prosecutors to inform victims of the status of juvenile delinquency proceedings.
SECTION 3VICTIM'S RIGHT TO ATTEND PROCEEDINGS
Amends statutory crime victims' bill of rights to provide that the victim has the right to be present at all public court proceedings, including all public proceedings concerning release of the accused or convicted offender, plea acceptance, the determination of guilt or innocence, or sentencing.
Adds right of victims to have their interests considered in decisions about changing the place of trial to the statutory crime victims' bill of rights.
Page 185 PREV PAGE TOP OF DOC Provides that victims are presumptively entitled to attend juvenile delinquency proceedings and that such proceedings will be presumptively open to the public.
SECTION 4VICTIM'S RIGHT TO BE HEARD
Gives victims a right to communicate with the court both orally and in writing concerning release decisions, plea acceptance, and sentencing.
Requires reasonable efforts by prosecutors to consider the views of victims in plea and sentence negotiations.
Gives victims a right to be heard concerning the disposition in juvenile delinquency proceedings.
SECTION 5ENFORCEMENT AND ADMINISTRATION OF VICTIMS' RIGHTS
Authorizes the government to redress violations of victims' rights to be present and to be heard through application for mandatory writs and appeal. Provides management authority to prosecutors to ensure orderly and effective participation by victims in mass victimization cases and other cases presenting unusual difficulties.
SECTION 6VICTIM'S RIGHT TO PROTECTION
Extends to victims in criminal cases the same protection as jurors against adverse action by employers.
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Broadens authority to seek detention of defendants who seriously threaten victims.
SECTION 7VICTIM'S RIGHT TO RESTITUTION AND COMPENSATION
Generally extends mandatory restitution to property offenses under the criminal code (now limited for the most part to violent crime cases). Consistently requires courts to order restitution as agreed to in plea agreements.
Gives Attorney General authority to use civilly forfeited property for restitution to victims, the existing authority is generally limited to criminal forfeiture. Clarifies that the government may dismiss a forfeiture action at any time in favor of restitution to victims. Creates authority for freezing and seizing of property that may be subject to restitution, parallel to the existing authority for forfeitable property.
Generally holds multiple offenders jointly and severally liable to a victim for restitution. Facilitates prompt payment and collection of restitution. Improves restitution sentencing procedures.
Creates authority for victims to enforce restitution orders in the same manner as civil judgments, supplementary to the government's enforcement powers.
Provides that strengthened enforcement procedures enacted by the antiterrorism legislation will apply to all restitution orders, including those entered or arising from offenses occurring prior to that legislation's enactment.
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Increases certain special assessments, thereby increasing revenues to the Crime Victims Fund. Authorizes release of information on child victims to victim compensation agencies, so that they can receive compensation. Authorizes funding for appointment of guardians ad litem in child abuse cases.
Makes various improvements in the administration of programs under the Victims of Crime Act, including enhanced authority and support for demonstration projects, training, technical assistance, and program evaluation.
SECTION 8EFFECTIVE DATE
Provides for the bill's provisions to apply as broadly as permitted by the Constitution. The bill's reforms accordingly would apply to protect the rights of victims in pending cases, as well as in future cases.
SECTION-BY-SECTION ANALYSIS OF THE PROPOSED VICTIMS' RIGHTS ACT
President Clinton has stated that the victim of a crime ''should be at the center of the criminal justice process,'' and has endorsed amending the Constitution to include several specific rights for victims which are necessary to achieve this objective. The President has further stated that we should proceed immediately with legislative and administrative reforms to maximize victims' rights under the current constitutional regime. (Remarks of June 25, 1996; Memorandum of June 27, 1996, to the Attorney General.)
Page 188 PREV PAGE TOP OF DOC This bill, the proposed ''Victims' Rights Act of 1997,'' will implement the President's victims' rights agenda in federal cases. The specific measures proposed in the bill are as follows:
SEC. 2. VICTIM'S RIGHT TO NOTICE AND INFORMATION
The President has stated that victims should have certain informational rights including the right ''to be told about public court proceedings'' and the right to ''notice when the defendant or convict escapes or is released'< and has endorsed the creation of ''a computerized system so victims get information about new developments in a case, in changes in the status or the location of a defendant or a convict.'' (Remarks of June 25.)
Subsection (a). Subsection (a) in this section authorizes necessary funding for an automated victim information and notification system, as proposed by the President. The contemplated appropriations authorized by this subsection would be out of general funds, and not at the expense of amounts available from the Crime Victims Fund for other victim-related purposes.
Subsection (b). Subsection (b) of section 2 contains amendments to supplement and strengthen the provisions of the Violent Crime Control and Law Enforcement Act of 1994 which authorize HIV testing of defendants, with disclosure of test results to victims, where the offense may have risked transmission of the virus. The Attorney General has previously transmitted similar recommendations for strengthening the defendant HIV testing provisions. See Letter of Attorney General Janet Reno to Honorable Joseph R. Biden, Jr., Detailed Comments at 3738 (June 13, 1994).
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The principal improvements in subsection (b) are: (1) providing coverage of all offenses that may result in HIV transmission, (2) making it clear that the prosecutor may assist the victim in obtaining a testing order in all cases, (3) preserving the availability of counseling but making it clear that victims need not submit to counseling in order to obtain a testing order, and (4) correcting a restrictive standard (proof of necessity for the victims health) that now limits the circumstances in which a victim may obtain a testing order. Subsection (b) also makes it clear that the Judiciary is responsible for paying for court-ordered HIV testing of defendants, and authorizes the appropriation of necessary sums for that purpose.
Subsection (c). Subsection (c) of section 2 allows prosecutors to communicate with victims to advise them of the status or disposition of juvenile delinquency proceedings, and to assist them in exercising their right to be heard concerning the disposition in such proceedings (as provided in section 4(f) of this bill).
SEC. 3. VICTIM'S RIGHT TO ATTEND PROCEEDINGS
The President has stated that victims should have the right ''to be told about public court proceedings and to attend them'' (emphasis added). (Remarks of June 25.) While Governor of Arkansas, he signed legislation to secure the attendance rights of victims in that state.
Subsection (a). Subsections (a) of this section amends the federal statutory crime victims' bill of rights to establish as far as possible the attendance right endorsed by the President for victims of federal crimes. The amendment provides that victims have the right to be present throughout all public court proceedings related to the offense, including but not limited to all public proceedings concerning release of the accused or convicted offender, acceptance of a plea, the determination of guilt or innocence, or sentencing, unless the victim's presence would violate a constitutional right of the defendant.
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Subsection (b). The right of victims to attend proceedings may be undermined or nullified at a practical level if the case is transferred to a remote venue. Subsection (b) addresses this problem by amending the statutory crime victims' bill of rights to include a right of victims to have their interests considered in decisions about changing the place of trial.
Subsection (c). Subsection (c) states that federal juvenile delinquency proceedings are presumptively to be open to the public, and that victims are presumptively to be allowed to attend such proceedings (even if they are not open to the public generally).
SEC. 4. VICTIM'S RIGHT TO BE HEARD
The President has stated that victims should have the right ''to make a statement to the court about bail, about sentencing, about accepting a plea if the victim is present.'' (Remarks of June 25.)
Subsections (a)-d). Subsections (a) (d) in this section implement the allocution right endorsed by the President for victims of federal crimes. The amendments in this part specifically (1) extend the victim's right of allocution in sentencing to all criminal cases (limited under current federal law to violent crime and sexual abuse cases), and (2) create allocution rights for victims in release proceedings and plea acceptance proceedings. Most states currently recognize allocution rights for victims in sentencing, see, e.g., Ariz. Rev. Stat. 134426; Cal. Penal Code 1191.1, Or. Rev. Stat. 137.013, Maine Rev. Stat. title 17A 1257, Ind. Stat. Ann. 3535 5, and a number of states also recognize allocution rights for victims in relation to plea acceptance and/or release decisions. The amendments in this part also provide that victims have a right to submit written statements in proceedings where they would have a right to allocute if present at the proceeding.
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Subsection (e). Subsection (e) in this section amends existing victims' rights provisions to direct the government to make reasonable efforts to consider victims' views in plea and sentence negotiations. It also provides a statutory basis for Attorney General guidelines to effectuate victims' rights provisions.
Subsection (f). Subsection (f) in this section requires that victim impact information be included in a predisposition report in juvenile delinquency proceedings, and that victims in such proceedings shall be provided the opportunity to make a statement to the court or present any information in relation to the disposition.
SEC. 5. ENFORCEMENT AND ADMINISTRATION OF VICTIMS' RIGHTS
Subsections (a)-(b). Subsections (a)-(b) of this section provide means of enforcing the victim's right to attend proceedings, and right to be heard in certain proceedings, established by sections 3 and 4 of the bill. The section provides that, in case a trial court fails to respect these rights, the government may apply to the appropriate court of appeals for a writ of mandamus directing compliance with these rights. It further provides that in seeking review of release determinations and sentences, the government may assert a violation by the trial court of the victim's right to be heard or to be present as error.
Subsection (c). Subsection (c) of this section gives the Attorney General the authority to waive or limit the application of certain victims' rights provisions in cases where their application is unfeasible or inappropriate because of the number of victims or for other reasons, including the authority to designate representative victims to exercise such rights as allocution and attendance on behalf of the whole victim class.
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This provision would, for example, ensure that orderly and effective participation by victims can be effectuated in mass victimization cases, allow notice of release of a protected witness to be waived, and provide a means of dealing with situations where there is reason to believe that a person claiming the status of a victim was involved in the perpetration of the charged criminal conduct.
Subsection (d). Subsection (d) of this section ensures that defendants and convicted offenders will not be able to exploit rights created for the benefit of victims by providing that they have no standing to assert such rights and cannot challenge judgments or orders on the basis of violations of such rights. This means, for example, that a defendant or convicted offender could not challenge a release determination, conviction, or sentence on the basis of a claim that a victim's right to notice attendance, or allocution had not been respected in the proceedings.
Subsection (e). Subsection (e) makes it clear that the reforms proposed in the bill do not give rise to implied causes of action or liability for damages.
SEC. 6. VICTIM'S RIGHT TO PROTECTION
The President has stated that victims should have a right to ''reasonable protection from the defendant,'' and has stated that victims who attend proceedings should have the same protection as jurors against adverse action by employers. (Remarks of June 25.)
Subsections (a)-(b). Subsections (a) (b) of this section give victims in federal cases the same protection against employment discrimination as jurors, as proposed by the President. The proposed statute, 28 U.S.C. 1829 is parallel in protection and remedies to the existing statute for jurors (28 U.S.C. i875).
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Subsection (c). Section 3142 of the federal criminal code generally authorizes pretrial detention of defendants where conditional release cannot reasonably assure the safety of others. Subsection (f) of that section imposes certain limits on the circumstances in which detention may be sought. Under paragraph (1) of subsection (f), the government may seek a detention order in cases involving a crime of violence or other limited categories. Paragraph (2) of subsection (f) allows detention to be sought regardless of the charge where there serious risk that the defendant will threaten, injure, or intimidate a person but only if the person who is at risk prospective witness or juror.
Subsection (c) of section 6 amends 18 U.S.C. 3142(f)(2) to include victims explicitly among the protected persons. This ensures that the option of seeking pretrial detention will be available consistently where victims are seriously threatened, regardless of whether they may be called as witnesses.
SEC. 7. VICTIM'S RIGHT TO RESTITUTION AND COMPENSATION
The President has identified restitution as one of the rights of victims which are sufficiently fundamental to merit inclusion in the Constitution. (Remarks of June 25.) This section contains provisions to strengthen restitution and other compensation for victims.
Subsection (a). The Department of Justice has recommended that restitution be made mandatory for all offenses under the federal criminal code. See Letter of Assistant Attorney General Andrew Fois to Honorable Orrin G. Hatch Concerning 506 of S. 3 and H.R. 665 (October 11, 1995). This reform has been implemented for violent crime cases by the enactment of 18 U.S.C. 3663A in the Antiterrorism and Effective Death Penalty Act of 1996. However, that statute authorizes courts to decline to order restitution in cases involving offenses against property under the criminal code for reasons similar to those allowed under prior law. See 18 U.S.C. 3663A(c)(3).
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The main objection that has been urged against extending mandatory restitution to property offenses is that it might result in unmanageable burdens in mass victimization cases (such as mass fraud cases). However, even in such cases, there is no reason why restitution should not be required in relation to the victims whose identities and losses can be established by the government at the time of sentencing.
Subsection (a) of section 7 proposes an intermediate approach, under which mandatory restitution would be extended to criminal code property offenses, for victims whose identities and losses can be established by the government at the time of sentencing. In circumstances where victim identities and losses were not fully known to the government, the court would be authorized to (1) limit restitution to known victims and losses, (2) temporarily defer sentencing and order advertising through newspaper publication to identify additional victims, or (3) establish a reserve fund for payment of additional victims and losses, in addition to ordering restitution for presently known victims and losses.
Subsection (a) also makes conforming changes relating to the child support offense under 18 U.S.C.228, to harmonize that offense's restitution requirement with the restitution provisions of the antiterrorism legislation.
Subsection (b). Courts in the past have sometimes frustrated, to the detriment of victims, agreements to pay restitution that were voluntarily entered into by the parties. Subsection (b) of section 7 ensures that this will not occur in the future by providing clear and consistent requirements that courts order restitution as agreed to in plea agreements.
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Subsection (c). Subsection (c) of section 7 provides consistent authority for the Attorney General to use civilly forfeited property for restitution to victims. Existing authority of this type is generally limited to criminal forfeiture. Subsection (c) also guards against potential windfalls to offenders by making it clear that property subject to forfeiture cannot be used to pay restitution obligations, and makes it clear that the government may dismiss a forfeiture action at any time in favor of restitution to victims. Finally, subsection (c) guards against the dissipation and concealment of assets that may be subject to restitution by authorizing court orders to ''freeze'' such assets prior to conviction, parallel to the existing authority to freeze assets that may be subject to forfeiture, and by authorizing court orders necessary to ensure compliance with restitution orders following the disposition of an appeal, where a sentence imposing restitution is stayed pending appeal.
Subsection (d). Under normal principles of tort liability, joint tortfeasors are held jointly and severally liable for the injured party's losses. However, existing restitution law gives courts discretion concerning the apportionment of liability for restitution among multiple offenders. This increases the likelihood that the victim will never receive full restitution or that its payment will be delayed, because shortfalls in one offender's ability to pay cannot be offset by collecting from other offenders if they have already discharged their shares of the liability. Subsection (d) of section 7 corrects this problem by providing that offenders who have jointly contributed to a victims loss are to be held jointly and severally liable for restitution. The subsection makes a conforming amendment to 18 U.S.C. 3553(e), to enable the government to seek a limitation of a cooperating defendant's share of liability for restitution, parallel to the existing authorization in that provision to seek a sentence below a mandatory minimum for a cooperating defendant.
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Subsection (e). Subsection (e) of section 7 primarily provides that offenders are to be immediately liable for payment of the full amount of restitution ordered, unless the court provides for deferred payment or payment in installments.
Prior to enactment of the restitution reforms of the antiterrorism legislation, offenders usually were subject to immediate liability for the restitution ordered, and the Bureau of Prisons, U.S. Attorney offices, or probation officers set the payment schedules in most cases for offenders who lacked the means to pay the full amount at once. This approach facilitated the prompt payment and collection of restitution since payment requirements could be accelerated and collection could be undertaken immediately if an offender was found to have additional assets.
In contrast, a number of the amendments enacted by the antiterrorism legislation seem to specify or presuppose that courts will regularly set payment schedules. This approach works against the effective enforcement of restitution, since further judicial proceedings are then required to accelerate payment if an offender is found to have additional assets, and such assets are likely to disappear during the pendency of judicial proceedings.
Subsection (e) resolves this problem by restoring immediate liability for restitution as the normal approach, while preserving the court's authority to provide for deferred payment or installment payments in appropriate cases.
Subsection (f). Subsection (f) of section 7 corrects three problems in the new sentencing procedures for restitution enacted by the antiterrorism legislation:
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First, 18 U.S.C. 3664(d)(1) provides a procedure for probation officers to request information concerning the amounts subject to restitution from prosecutors, which includes a provision that the procedure is to be carried out ''not later than 60 days prior to the date initially set for sentencing.'' The language relating to timing is ambiguous, and could be interpreted to mean either that the probation officer's request or the prosecutor's response must occur at least 60 days before sentencing. Subsection (f) deletes the timing language, thereby avoiding this ambiguity, and providing flexibility for U.S. Attorney offices to make arrangements with their districts' probation officers concerning the timing of such requests and responses.
Second 18 U.S.C. 3664(d)(5) provides that if the victim's losses are not ascertainable 10 lays before sentencing, then the court shall set a date for the final determination of the victim's losses which may be up to 90 days after sentencing. Deferring determination of the victim's losses until after sentencing is not generally a workable approach, because the amount of the victim's losses can affect other aspects of the sentence (beyond restitution), including the applicable guideline range for determining the length of imprisonment, and the propriety and amount of a fine. Subsection (f) corrects this problem by providing instead that the court may defer sentencing as necessary to permit a determination of the victim's losses.
Third, 18 U.S.C. 3664(d)(5) provides that a victim may seek amendment of a restitution order based on later-discovered losses, within 60 days of the discovery of such losses. Since, as noted above, the amount of loss can affect other aspects of the sentence (fines and imprisonment) under normal sentencing procedures, this provision creates uncertainty whether later determinations of victim losses for restitution purposes could require the modification of previously imposed fines and prison terms. Subsection (f) resolves this uncertainty by providing that the amendment of a restitution order based on later discovered losses does not affect other aspects of the sentence.
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Subsection (g). Subsection (g) of section 7 authorizes victims to enforce restitution orders in the same manner as civil judgments (supplementary to the government's enforcement cowers). It also allows the government to disclose to victims specified information about offenders who owe them restitution, in order to Facilitate enforcement efforts by victims.
Subsection (h). Subsection (h) of section 7 corrects a provision which creates liens on offenders' property to enforce restitution. It adds restitution orders under the child support offense, 18 U.S.C. 228, to the scope of this provision the omission of a reference to the child support offense evidently resulted from an oversight in drafting and corrects other drafting errors.
Subsection (i). Subsection (i) of section 7 makes statutory amendments to complete the termination of the National Fine Center. This includes termination of a required annual transfer of $3 million to the Judiciary from the Crime Victims Fund for purposes related to operation of the Center. A provision in subsection (1) provides that funds returned to the Crime Victims Fund as a result of this change may be used for the benefit of victims in the federal criminal justice system. Subsection (i) also makes several amendments to 18 U.S.C. 3612, including clarification that payment of interest on restitution has priority over payment of fines, amends 18 U.S.C. 3613A to provide clear authority for the government to seek court orders accelerating restitution payments because (for example) the offender has been found to have additional assets, and makes the strengthened enforcement procedures established by the antiterrorism legislation apply to all restitution orders (not just those based on convictions occurring after the enactment of that legislation). The subsection includes an amendment to 28 U.S.C. 3002(3) which makes it clear that the procedures of the Federal Debt Collection Procedures Act can be used to collect debts that the United States is authorized by statute to collect for the benefit of any person, including restitution obligations.
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Subsection (j). Subsection (j) of section 7 increases certain special assessments under 18 U.S.C. 3013. By increasing the amount of special assessments, these changes will increase revenues to the Crime Victims Fund and benefit victims.
Subsection (k). Subsection (k) of section 7 provides that information on child victims can be provided to victim compensation agencies, so that they can receive compensation. This corrects a problem under existing confidentiality provisions relating to child victims, which have prevented the release of the necessary information. Subsection (k) also makes it clear that the Judiciary is responsible for paying for guardians ad litem for victims of child abuse or exploitation under 18 U.S.C. 3509(h), and authorizes the appropriation of necessary sums for that purpose.
Subsection (l). Subsection (1) of section 7 makes various improvements in the program of federal support for victim assistance and compensation under the Victims of Crime Act. It provides that unused funds which were transferred to the Judiciary for the establishment of the (now defunct) National Fine Center are to be returned to the Crime Victims Fund and may be used for the benefit of federal crime victims. It clarifies that interest on fines is to be deposited in the Crime Victims Fund; authorizes the receipt of private donations to the Crime Victims Fund, enhances authority and support for demonstration projects, training, technical assistance, and program evaluation ensures that victims will not lose federal benefits under means-tested programs solely because they receive compensation from state victim compensation programs; and authorizes support for victim assistance activities of the U.S. Attorney offices in the District of Columbia and the Virgin Islands in relation to their local law enforcement functions. The subsection also requires states to return to the Crime Victims Fund amounts for which they are reimbursed under subrogation provisions as a result of third party payments to victims, where the state has received supplemental funding for incidents of terrorism or mass violence. This will help to replenish the funds available for assistance to victims of terrorism and mass violence.
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Subsection (m). Subsection (m) of section 7 extends the effective date for an amendment requiring states to provide compensation to state residents who are victims of terrorist acts, regardless of the site of the terrorist act. The current effective date does not provide adequate time for compliance for states whose legislatures meet only every two years, and could result in a number of states becoming ineligible for victim compensation funding.
SEC. 8. EFFECTIVE DATE
Section 8 provides for the bill to apply as broadly as permitted by the Constitution. Many of the bill's provisions, such as those extending victims' attendance and allocution rights, only affect procedure and evidence (as opposed to substantive criminal law or penalties). Hence, there is no constitutional impediment to making these provisions applicable in pending cases as well as future cases. This approach maximizes the value of the proposed reforms.
To secure the rights of crime victims, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.
SEC. 1. SHORT TITLE; TABLE OF CONTENTS
Page 201 PREV PAGE TOP OF DOC (a) SHORT TITLE.This Act may be cited as the ''Victims Rights Act of 1997''.
(b) TABLE OF CONTENTS. The table of contents for this Act is as follows:
Sec. 1. Short title, table of contents.
Sec. 2. Victim's right to notice and information.
Sec. 3. Victim's right to attend proceedings.
Sec. 4. Victim's right to be heard.
Sec. 5. Enforcement and administration of victims' rights.
Sec. 6. Victim's right to protection.
Sec. 7. Victim's right to restitution and compensation.
Sec. 8. Effective date.
SEC. 2. VICTIM'S RIGHT TO NOTICE AND INFORMATION
(a) AUTOMATED VICTIM INFORMATION AND NOTIFICATION SYSTEM.There are authorized to be appropriated in each fiscal year such sums as may be necessary for the establishment and operation by the Attorney General of an automated victim information and notification system.
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(b) INFORMATION CONCERNING DEFENDANT'S HIV STATUS.(1) Section 40503(b) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14011(b)) is amended
(A) by amending the heading to read as follows:
''(b) TESTING OF DEFENDANTS.'';
(B) in paragraph (1)
(i) by striking ''of the type referred to in subsection (a)'' and inserting ''or the Government''
(ii) by inserting ''(or to the victim's parent or legal guardian, as appropriate)' after ''communicated to the vichm''; and
(iii) by inserting '', unless the recipient does not wish to receive such counseling'' after ''counseling'', and
(C) in paragraph (2)
(i) by striking ''To obtain an order under paragraph (1), the victim must demonstrate that'' and inserting ''The victim or the Government may obtain an order under paragraph (1) by showing that''
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(ii) in subparagraph (A)
(I) by striking ''the offense'' and inserting ''an offense involving alleged conduct that poses a risk of transmission of the etiologic agent for acquired immune deficiency syndrome'', and
(II) by inserting ''and'' after the semicolon;
(iii) in subparagraph (B), by striking ''after appropriate counseling; and'' and inserting a period, and
(iv) by striking subparagraph (C).
(2) There are authorized to be appropriated to the Judiciary in each fiscal year such sums as may be necessary to carry out testing and related counseling pursuant to court orders under section 40503(b) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14011(b)).
(c) JUVENILE PROCEEDINGS.Section 5038(a)(6) of title 18, United States Code, is amended to read as follows:
''(6) communications with any victim of such juvenile delinquency, or in appropriate cases with the official representative of the victim, in order to apprise such victim or representative of the status or disposition of the proceeding or in order to effectuate any other provision of law or to assist in a victim's, or the victim's official representative's, allocution at disposition.''.
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SEC. 3. VICTIM'S RIGHT TO ATTEND PROCEEDINGS
(a) RIGHT TO BE PRESENT.Section 502(b)(4) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606(b)(4)) is amended to read as follows:
''(a) The right to be present throughout all public court proceedings related to the offense, including but not limited to all public proceedings concerning release of the accused or convicted offender, acceptance of a plea, the determination of guilt or innocence, or sentencing, unless the victim's presence would violate a constitutional right of the defendant.''.
(b) CHANGES OF PLACE OF TRIAL.Section 502(b) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606(b)) is amended
(1) by inserting ''the'' before ''attorney'' in paragraph (5);
(2) by redesignating paragraphs (6) and (7) as paragraphs (7) and (8) respectively, and
(3) by inserting after paragraph (5) the following new paragraph:
''(6) The right to have the victim's interests considered in decisions about changing the place of trial.''.
Page 205 PREV PAGE TOP OF DOC (c) JUVENILE PROCEEDINGS.Section 5032 of title 18, United States Code, is amended in the third undesignated paragraph by striking ''in chambers or otherwise'' in the second sentence and inserting: ''and shall be open to the public, except that the court may exclude all or some members of the public from the proceedings if required by the interests of justice or if other good cause is shown. Even if all or some of the members of the public are excluded from the proceedings, the proceedings shall be open to victims of the alleged offense and their relatives and legal guardians unless required by the interests of justice or otherwise good cause is shown.''.
SEC. 4. VICTIM'S RIGHT TO BE HEARD
(a) VICTIMS' BILL OF RIGHTS AMENDMENT.Section 502(b) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606(b)) is amended
(1) by redesignating paragraphs (7) and (8), as designated by section 3(b), as paragraphs (8) and (9) respectively; and
(2) by inserting after paragraph (6) the following new paragraph:
(7) The right to be heard by the trial court concerning the release of the accused or convicted offender, acceptance of any plea, and sentencing, if present at the pertinent proceedings.''.
(b) SENTENCING. Rule 32 of the Federal Rules of Criminal Procedure is amended
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(1) in subdivision (c)(3)(E), by striking ''if sentence is to be imposed for a crime of violence or sexual abuse,'', and
(2) by amending subdivision (f) to read as follows:
''(f) DEFINITION. For purposes of this rule, 'victim' means any individual against whom an offense has been committed for which a sentence is to be imposed, but the right of allocution under subdivision (c)(3)(E) may be exercised instead by
''(1) a parent or legal guardian if the victim is below the age of eighteen years or incompetent; or
''(2) one or more family members or relatives designated by the court if the victim is deceased or incapacitated,
if such person or persons are present at the sentencing hearing, regardless of whether the victim is present.''.
(c) RELEASE AND DETENTION. Chapter 207 of title 18, United States Code, is amended
(1) by adding at the end of section 3142 the following new subsection:
''(k) In any hearing under this section, or under section 3143 or 3148, if the victim is present at the hearing, the victim shall be allowed to make a statement and present any information relating to the release or detention of the defendant, or to release conditions including any statement or information concerning the danger posed by the defendant.'', and
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(2) in section 3156(a)
(A) by striking ''and'' at the end of paragraph (3);
(B) by striking the period at the end of paragraph (4) and inserting '', and''; and
(C) by inserting at the end a new paragraph (5) as follows:
''(5) the term 'victim' means any individual against whom an offense with which the defendant is charged has allegedly been committed, but the right of allocution under section 3142(k) may be exercised instead by
''(A) a parent or legal guardian if the victim is below the age of eighteen years or incompetent, or
''(B) one or more family members or relatives designated by the court if the victim is deceased or incapacitated;
if such person or persons are present at the hearing, regardless of whether the victim is present.''.
(d) ACCEPTANCE OF PLEAS; SUBMISSION OF WRITTEN STATEMENTS.Chapter 224 of title 18, United States Code, is amended
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(1) by inserting at the end the following new sections:
'' 3511. Victim's right to be heard concerning plea
''(a) In any proceeding relating to acceptance of a plea of guilty or nolo contendere, the victim shall be allowed to make a statement in relation to the plea, if the victim is present at the proceeding.
''(b) As used in this section, 'victim' means any individual against whom an offense included in a proposed plea or with which the defendant was charged in the indictment or information was allegedly committed, but the right of allocution under subsection (a) may be exercised instead by
''(1) a parent or legal guardian if the victim is below the age of eighteen years or incompetent; or
''(2) one or more family members or relatives designated by the court if the victim is deceased or incapacitated
if such person or persons are present at the proceeding relating to acceptance of the plea, regardless of whether the victim is present.
'' 3512. Victim's right to summit written statement
Page 209 PREV PAGE TOP OF DOC ''(a) In any public proceeding in a criminal case in which the victim would have a right to make an oral statement if present at the proceeding, including any public proceeding before a trial court relating to release of the accused or convicted of fender acceptance of a plea, or sentencing, the victim shall be allowed to submit a timely written statement, whether or not present at the proceeding.
''(b) As used in this section, 'victim' means any person who would be authorized to make an oral statement as a victim or instead of a victim, as provided by statute or rule, if present at the pertinent proceeding.
''(c) This section shall not be construed to require the delay of any proceeding.''; and
(2) by inserting at the end of the table of sections the following
''3511. Victim's right to be heard concerning plea.
''3512. Victim's right to submit written statement.''.
CONSIDERATION OF VICTIM'S VIEWS. Section 503 of the Victim's Rights and Restitution Act of 1990 (42 U.S.C. 10607) is
(1) in subsection (c), by adding at the end the following
''(9) The government shall make reasonable efforts to consider the victim's views concerning any proposed or contemplated plea or sentence negotiations.''
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(2) in subsection (d), by inserting ''to or consult with or consider the views of any person'' after ''information'', and
(2) by adding at the end the following:
''The Attorney General shad issue guidelines to effectuate the rights and services set forth in this section and section 502.''
(f) JUVENILE PROCEEDINGS.Section 5037(a) of title 18, United States Code, is amended
(1) in the first sentence, by striking ''twenty'' and inserting ''forty''; and
(2) by inserting after the first sentence the following: ''A predisposition report shall be prepared by the probation officer who shall promptly provide a copy to the juvenile, the juvenile's counsel, and the attorney for the Government. Victim impact information shall be included in the report, and victims, or in appropriate cases their official representative, shall be provided the opportunity to make a statement to the court in person or present any information in relation to the disposition.''.
SEC. 5. ENFORCEMENT AND ADMINISTRATION OF VICTIMS' RIGHTS
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(a) IN GENERAL. Chapter 235 of title 18, United States Code, is amended by inserting at the end the following new section:
'' 3743. Review of denial of victim's rights
''(a) MANDAMUS.If a district court denies any right of a victim under section 502(b)(4) or (7) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606(b)(4) (7)), Rule 32 of the Federal Rules of Criminal Procedure, or section 3142(k), 35il, or 3512 of this title, the government may apply for a writ of mandamus to the appropriate court of appeals. The court of appeals shah take up and decide such an application forthwith.
''(b) APPEAL.In an appeal by the government under section 3145, 3742, or the third paragraph of section 3731 of this title, the government may assert as error the district court's denial of the victim's right to be heard in, or the district court's exclusion of the victim from, the proceeding to which the appeal relates, in violation of a right of the victim under section 502 (b) (4) or (7) of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606(b) (4), (7)), Rule 32 of the Federal Rules of Criminal Procedure, or section 3142 (k) or 3512 of this title.
(b) CLERICAL AMENDMENT.The table of sections for chapter 235 of title 18, United States Code, is amended by adding at the end the following:
''3743. Review of denial of victim's rights.''.
Page 212 PREV PAGE TOP OF DOC (c) MANAGEMENT AUTHORITY OF ATTORNEY GENERAL. Chapter 33 of title 28, United States Code, is amended
(1) by inserting at the end the following:
'' 530B. Authority Or the Attorney General concerning victims' right
''The Attorney General may waive or limit the application of laws and rules establishing the rights of victims in criminal cases to notice or information, to attend proceedings, or to be heard or consulted or have their views considered, where the application of such laws or rules is unfeasible or inappropriate because of the number of victims, in the interest of justice, or for other reasons. The Attorney General's authority under this section includes, but is not limited to, the authority to designate representative victims to exercise these rights on behalf of the whole class of victims. The exercise of the Attorney General's authority under this section is in the sole discretion of the Attorney General, and shah not be reviewable in any court.''; and
(2) by inserting at the end of the table of sections the following
''530B. Authority of the Attorney General concerning victims' rights.''.
(d) LIMITATION OF STANDING CONCERNING VICTIMS' RIGHTS. Chapter 224 of title 18, United States Code, as amended by section 4(d), is further amended
(1) by inserting at the end the following new section:
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'' 3513. Limitation of standing concerning victims' right
''(a) A person accused or convicted of a crime shall have no standing to assert a right of a victim of the crime, or to appeal or otherwise challenge any judgment or order on the basis of a violation of a right of a victim of the crime.
''(b) As used in this section, 'a right of a victim' means any right under a law or rule establishing the rights of victims in criminal cases to notice or information, to attend proceedings or to be heard or consulted or have their views considered.'' and
(2) by inserting at the end of the table of sections the following:
''3513. Limitation of standing concerning victims' rights.''.
(e) NO IMPLIED LIABILITY FOR DAMAGES. No provision Sir amendment in this Act which does not expressly authorize a cause of action or liability for damages shad be construed to give rise to a cause of action or liability for damages against any person or entity.
SEC. 6. VICTIM'S RIGHT TO PROTECTION
(a) IN GENERAL.Chapter 119 of title 28 United States Code is amended by adding at the end the following new section:
Page 214 PREV PAGE TOP OF DOC'' 1829. Protection of employment
''(a) No employer shall discharge, threaten to discharge intimidate or coerce any permanent employee by reason of such employee's actual or scheduled attendance at or participation in any proceeding in a criminal case in any court of the United States involving the prosecution of a crime for which the employee was a victim.
''(b) Any employer who violates the provisions of this section
''(1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation
''(2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged in violation of this section; and
''(3) shall be subject to a civil penalty of not more than $1,000 for each violation as to each employee.
''(c) Any individual who is reinstated to a position of employment in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during any period of absence resulting from the individual's attendance at or participation in a proceeding as a victim, shall be reinstated to his or her position of employment without loss of seniority, and shad be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the commencement of the absence.
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''(d)(l) An individual claiming that the individuals employer has violated the provisions of this section may make application to the district court for the district in which the employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent the individual in any action in the district court necessary to the resolution of the claim. Counsel so appointed shall be compensated and necessary expenses repaid to the extent provided by section 3006A of title 18, United States Code.
''(2) In any action or proceeding under this section, the court may award a prevailing employee who brings the action by retained counsel a reasonable attorney's fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where the costs were expended by the court pursuant to paragraph (1) of this subsection. The court may award a prevailing employer a reasonable attorney's fee as part of the costs only if the court finds that the action is frivolous, vexatious or brought in bad faith.
''(e) The term 'victim' as used in this section refers to an individual against whom a charged offense was allegedly -committed or, if that person is deceased, any immediate family member as defined in section 115(c)(2) of title 18, United States Code.''.
(b) CLERICAL AMENDMENT. The chapter analysis for chapter 119 of title 28 United States Code, is amended by adding at the end the follows item:
''1829. Protection of employments.''.
Page 216 PREV PAGE TOP OF DOC (c) DETENTION TO PROTECT THREATENED VICTIM.Section 3142(f)(2)(B) of title 18, United States Code, is amended by inserting ''or a victim'' after ''juror''.
SEC. 7. VICTIM'S RIGHT TO RESTITUTION AND COMPENSATE
(a) EXTENSION OF MANDATORY RESTITUTION FOR CRIMINAL CODE OFFENSES.(1) Section 3663A(c)(3) of title 18, United States Code, is amended to read as follows:
''(3) In the case of an offense described in paragraph (1)(A)(ii), the court shall order restitution to all victims whose identities and losses can be shown by the government at the time of sentencing. If the court finds, from facts on the record, that the identities of all victims or the amount of each victim's loss is not known to the government and is unlikely to be known at the time set for sentencing, the court may
''(A) limit the order of restitution to the identified amounts of the losses to the identified victims; or
''(B) issue an order postponing sentencing for 90 days and requiring the Government to publish in a newspaper of general circulation in the judicial district or in a newspaper with nationwide circulation a notice that states
''(i) the name of, and other identifying information about, the defendant;
''(ii) the offense for which the defendant was convicted
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''(iii) the terms and conditions for submitting a claim for a loss incurred as the result of the offense for which the defendant has been convicted;
''(iv) a date certain for submitting a claim that shah be at least 30 days prior to sentencing
''(v) that the court may allow or disallow any claim for a loss, including any losses of victims independently identified under section 3664, and
''(vi) that any person required to submit a claim who fails to submit a timely claim or whose claim once submitted is disallowed by the court shad have no right to restitution, but may pursue any other legal remedy including a civil action, or
''(C) order restitution to the identified victims in the identified amounts of each victim's loss and specify the amount of a reserve fund to be included in the restitution ordered by the sentence sufficient to compensate victims or victims' losses that are unidentified at the time of sentence. A determination on distributions from the reserve fund shah be made under the procedures set forth in subparagraph B. or under such other procedures reasonably calculated to identify victims and victims' losses as the court may approve. Should the reserve fund be insufficient to satisfy the identified victims' losses, the amount available shah be distributed to the victims pro rata. In the event that an amount remains in the reserve fund after all identified victims' claims have been paid, the remaining reserve funds shah be disbursed to the Crime Victims Fund.''.
Page 218 PREV PAGE TOP OF DOC (2) Section 2327(a) of title 18, United States Code, is amended by striking ''Notwithstanding section 3663 or 3663A, and in'' and inserting ''In''.
(3) (A) Section 228(c) of title 18, United States Code, is amended
(i) by striking ''under section 3663'', and
(ii) by adding at the end the following: ''An order of restitution under this subsection shad be issued and enforced in accordance with section 3664 in the
(B) Sections 3563(aX6)(A) and 3664(p) of title 18, United States Code, are each amended by inserting ''228 '' before ''2248''.
(b) MANDATORY RESTITUTION AS PROVIDED IN PLEA AGREEMENTS.
(1) Sections 3663(a)(3) and 3663A(a)(3) of title 18, United States Code, are each amended to read as follows:
''(3) The court shall also order restitution in any criminal case to any person, including a person other than the victim of the offense, to the extent agreed to by the parties in a plea agreement.''
(2) Section 3663(a)(l)(A) of title 18, United States Code, is amended by striking the final sentence.
Page 219 PREV PAGE TOP OF DOC (c) USE OF FORFEITABLE PROPERTY FOR RESTITUTION TO VICTIMS; PRESERVATION OF PROPERTY SUBJECT TO RESTITUTION.
(1) CIVIL FORFEITURE.Section 981(e) of title 18, United States Code, is amended
(A) in subsection (e)(3), (4) and (5), by striking ''in the case of property referred to in subsection (a)(l)(C)'' and inserting fin the case of property forfeited in connection with an offense resulting in a pecuniary loss to a financial institution or regulatory agency'';
(B) in subsection (e)(7), by striking ''in the case of property referred to in subsection (a)(l)(D)'' and inserting ''in the case of property forfeited in connection with an offense relating to the sale of assets acquired or held by any Federal financial institution or regulatory agency, or person appointed by such agency, as receiver, conservator or liquidating agent for a financial institution''; and
(C) by amending subsection (e)(6) to read as follows:
''(e)(6) as restoration to any victim of the offense giving rise to the forfeiture, or any other offense that was part of the same scheme conspiracy, or pattern of criminal activity, including, in the case of a money laundering offense, any offense constituting the underlying specified unlawful activity; or''.
(2) CRIMINAL FORFEITURE.Section 413 of the Controlled Substances Act (21 U.S.C. 853) is amended by adding at the end the following new subsection:
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''(v) Victims and restitution
''(1) The defendant may not use property subject to forfeiture under this section to satisfy an order of restitution. However, if there are identifiable victims entitled to restitution from the defendant, and the defendant has no assets other than the property subject to forfeiture with which to pay restitution to the victims, the government may move to dismiss the forfeiture allegations before entry of a judgment of forfeiture to allow the property to be used by the defendant to pay restitution in whatever manner the court determines to be appropriate if it grants the government's motion.
''(2) If an order of forfeiture is entered pursuant to this section and the defendant has no assets other than the forfeited property to pay restitution to identifiable victims who are entitled to restitution, the government may restore the forfeited property to the victims pursuant to subsection (i)(l) once the ancillary proceeding under subsection (n) has been completed and the costs of the forfeiture action have been deducted. On the motion of the government, the court may enter any order necessary to facilitate the distribution of the property under this subsection.
''(3) For purposes of this subsection, a 'victim' is a person other than a person with a legal right, title or interest in the forfeited property sufficient to satisfy the standing requirements of subsection (n)(2) who may nevertheless be entitled to restitution from the forfeited funds pursuant to the regulations issued by the Attorney General governing the remission of forfeited property to victims. A person shall be considered a 'victim' if the person is the victim of the offense giving rise to the forfeiture, or of any offense that was part of the same scheme, conspiracy, or pattern of criminal activity, including in the case of a money laundering offense, any offense constituting the underlying specified unlawful activity.''.
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(3) DISMISSAL OF FORFEITURE ACTIONS TO ALLOW RESTITUTION, PRESERVATION OF PROPERTY SUBJECT TO RESTITUTION.
(A) Section 3663(c)(4) of title 18, United States Code, is amended by striking ''or under the Controlled Substances Act (21 U.S.C. 801 et seq.)'' and inserting '', under the Controlled Substances Act (21 U.S.C. 801 et seq.), or under any other provision of law''.
(B) Section 3664 of title 18, United States Code, is amended by adding at the end the following new subsection:
''(q) A person may not use any property criminally or civilly forfeited to the United States or subject to a pending criminal or civil forfeiture action to make restitution, provided, that the government may dismiss a criminal or civil forfeiture action at any time to allow property to be used to make restitution. The custodian of the property at the time a forfeiture action is dismissed shall retain the property and shall not release the property except pursuant to court order. Any protective order entered or warrant of seizure executed pursuant to section 413 (e)-(f) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (e)(f)) shah remain in effect pending such order of the court.''.
''(r) The provisions of section 413 (e) (f) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (e)(f)) shall apply in like manner to property that may be subject to restitution under any provision of this title.''.
Page 222 PREV PAGE TOP OF DOC (C) Section 3572 of title 18, United States Code, is amended
(i) in subsection (g)
(I) by inserting ''or restitution'' after ''Security for stayed fine;
(II) by inserting ''(l)'' before ''If a sentence imposing a fine'';
(III) by striking ''(1)'', ''(2)'', and ''(3)'' and inserting ''(A)'', ''(B)'', and ''(C)'' respectively, and
(IV) by adding at the end the following:
''(2) If a sentence imposing restitution is stayed the court may issue such orders astray be reasonably necessary to ensure compliance upon disposition of the appeal, including imposing any of the conditions set forth in subparagraphs (A) (C) of paragraph (1). In issuing such an order, the court shall consider the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.''; and
(ii) by striking subsections (h) and (i).
(d) JOINT AND SEVERAL LIABILITY FOR RESTITUTION.(1) Subsection (h) of section 3664 of title 18, United States Code, is amended to read as follows:
Page 223 PREV PAGE TOP OF DOC ''(h) If the court finds that more than one defendant has contributed to the loss of a victim, the court shad hold all such defendants jointly and severally liable for payment of the full amount of restitution.''.
(2) Section 3553(e) of title 18, United States Code, is amended by inserting '', or involving liability for restitution below that otherwise required by section 3664(h),'' after ''minimum sentence''.
(e) PAYMENT OF RESTITUTION.(1) Paragraph (2) of section 3664(f) of title 18, United States Code, is amended by striking ''(2) Upon'' and an that follows through ''consideration of'' and inserting:
''(2) A defendant shall be immediately liable for payment of the fun amount of restitution ordered, unless the court, pursuant to section 3572, provides for deferred payment or payment in installments. In providing for deferred payment or payment in installments, the court shall consider''.
(2) Paragraph (3) of section 3664(f) of title 18, United States Code, is amended
(A) in subparagraph (A), by striking ''(A) A restitution order'' and inserting ''A restitution order that specifies the manner of payment'', and
(B) by striking subparagraph (B).
Page 224 PREV PAGE TOP OF DOC (3) (A) Subsection (i) of section 3664 of title 18, United States Code, is amended by striking the first sentence and inserting the following: ''If the court finds that more than one victim has sustained a loss requiring restitution by a defendant, the court may specify priorities in payment to the victims in light of their economic circumstances and the type and amount of their respective losses.''.
(B) Section 3664(j) of title 18, United States Code, is amended
(i) in paragraph (1), by striking ''of victims required by the order'' through ''compensation'' and inserting ''be paid to the victims named in the order before any such provider of compensation is reimbursed''; and
(ii) in paragraph (2), by inserting ''required to be'' before ''paid''.
(4) (A) Section 3664(k) of title 18, United States Code, is amended by striking the third and fourth sentences and inserting the following: ''The court or the Attorney General shall notify the victim or victims owed restitution by the defendant of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party including the victim, adjust any payment schedule prescribed by the court, or require immediate payment in full, as the interests of justice require''.
(B) Section 3664(n) of title 18, United States Code, is amended
(i) by striking ''substantial resources'' and inserting ''property'';
Page 225 PREV PAGE TOP OF DOC (ii) by striking ''during a period of incarceration,''; and
(iii) by striking ''resources'' and inserting ''property''.
(5) Section 3572(d) of title 18, United States Code, is amended
(A) in paragraph (1), by amending the first sentence to read as follows: ''A person sentenced to pay a fine or other monetary penalty, including restitution shall be immediately liable for payment of the fur specified in the sentence, unless, in the interest of justice, the court provides for deferred payment or payment in instruments.'';
(B) in paragraph (2), by striking ''permits other than immediate payment'' and inserting ''provides for deferred payment or payment in installments''; and
(C) in paragraph (3), by striking ''permits payment in installments'' and inserting ''provides for deferred payment or payment in installments''.
(f) SENTENCING PROCEDURES FOR RESTITUTION.(1) Subsection (d) of section 3664 of title 18, United States Code, is amended
(A) in paragraph (1), by striking ''but not later than 60 days prior to the date I initially set for sentencing,'';
(B) in paragraph (5)
Page 226 PREV PAGE TOP OF DOC (i) in the first sentence, by striking ''shall set'' and all that follows through ''sentencing'', and inserting the following: ''may defer sentencing as necessary to permit a final determination of the victim's losses'', and
(ii) by inserting at the end the following: ''The amendment of a restitution order based on later-discovered losses shall not affect any other aspect of the sentence.''.
(2) Section 3664(o)(1)(c) of title 18, United States Code, is amended by striking ''(3)'' and inserting ''(5)''.
(g) AUTHORITY FOR VICTIM TO ENFORCE RESTITUTION.(1) Subparagraph (A) of section 3664(m)(1) of title 18, United States Code, is amended to read as follows:
''(A) An order of restitution may be enforced
''(i) by the United States, in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title, and
''(ii) by a victim named in the order to receive restitution, in the same manner as a judgment in a civil action.''.
(2) Section 3664 of title 18, United States Code, as amended by section 7(c)(3XB) of this Act, is further amended by adding at the end the following:
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''(s) Notwithstanding section 552a of title 5, United States Code, the government may disclose to a victim who is owed restitution the following information about a person sentenced to pay such restitution:
''(1) place of residence or domicile
''(2) place of employment;
''(3) date of birth;
''(4) date and place of death
''(5) country of citizenship
''(6) deportation date and destination, and
''(7) such information about property as may be available.''.
(h) CORRECTION OF LIEN PROVISION. Section 3613(c) of title 18, United States Code, is amended
(1) by inserting ''228,'' before ''2248'', and
(2) by inserting ''or liable for restitution'' after each occurrence of ''fined''.
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(i) COLLECTION AND ENFORCEMENT.(1)(A) Section 3611 of title 18, United States Code, is amended
(1) by inserting ''228,'' before ''2248''; and
(2) by inserting ''or liable for restitution'' after each occurrence of ''fined''.
'' 3611. Payment of fines, restitution, and certain forfeitures
''A person who is sentenced to Day a fine, assessment, or restitution or who forfeits a bail bond or collateral shall pay the fine, assessment, restitution, or forfeited bail bond or collateral, including any interest or penalty, as specified by the Director of the Administrative Office of the United States Courts. The Director may specify that payment be made to the clerk of the court or to an officer, employee, or agent of the United States who consents to receive such payment.''.
(B) The table of sections for chapter 229 of title 18, United States Code, is amended by amending the item relating to section 3611 to read as follows:
''3611. Payment of fines, restitution, and certain forfeitures.''
(2) Section 3612 of title 18, United States Code, is amended:
Page 229 PREV PAGE TOP OF DOC (A) in subsection (a)
(i) by striking each occurrence of ''604(a)(18) of title 28'' and inserting ''3611''; and
(ii) by inserting ''and any other person designated by the Director of the Administrative Office of the United States Courts'' after ''notify the Attorney General'';
(B) in subsection (c)
(i) by inserting after the first sentence the following: ''The government may require the defendant to pay a fine or restitution in installments, consistent with any provision regarding the timing of payment in the sentence.''; and
''(ii) by striking ''Any money'' and an that follows through ''sentence.'';
(C) by amending subsection (d) to read as follows:
''(d) Delinquency.Payment of a fine or restitution is delinquent if payment is not made within 30 days of the date it became due. The person designated under section 3611 or the Attorney General shall inform the defendant of the delinquency, and of the court's authority to remedy any default by the defend and under section 3613A(b).'';
(D) in subsection (f)
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(i) in paragraph (1)
(I) by striking ''fine is'' and inserting ''fine or restitution is'', and
(II) by inserting '', including any judgment providing for deferred payment or payment in installments'' after ''judgment''; and
(ii) in paragraph (2), by inserting ''or restitution'' after ''fine'';
(E) in subsection (h), by striking ''under this section'' and inserting ''imposed under this subchapter''
(F) by amending subsection (i) to read as follows:
''(i) Application of payments.Payments received from a defendant shall be applied so that each of the following obligations is paid in full in the following sequence
''(1) a penalty assessment imposed under section 3013 of title 18, United States Code
''(2) restitution with interest, if any, to all victims
''(3) all fines imposed by the sentence, including any interest;
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''(4) late payment penalties; and
(G) by striking subsections (e) and (g), and
(H) by redesignating subsection (f) as subsection (e) and subsections (h) and (i) as subsections (f) and (g) respectively.
(3) Section 604(a)(18) of title 28, United States Code, is amended to read as follows:
''(18) Establish policy and procedures to meet the requirements of sections 3611 and 3612 of title 18.''.
(4) Effective September 30, 1996, section 1402(d) of the Victims of Crime Act of 1984 (42 U.S.C. 10601(d)), as amended by section 3(b) of this Act, is further amended
(A) by striking paragraph (1);
(B) in paragraph (2), by striking ''the next'' and inserting ''The first''; and
(C) by redesignating paragraphs (2), (3), (4), and (5) as paragraphs (1), (2), (3), and (4) respectively.
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(5) Section 1404B(b) of the Victims of Crime Act of 1984 is amended by striking ''1404(d)(4)(B)'' and inserting ''1402(d)(3)(B)''.
(6) Section 3613 of title 18, United States Code, is amended
(A) in subsection (a) and (e), by inserting ''or restitution'' after each occurrence of ''fine'', and
(B) in subsection (a) by inserting ''or subject to restitution'' after ''fined''.
(7) Section 3613A of title 18, United States Code, is amended to read as follows:
'' 3613A. Orders in aid of enforcement
''(a) Acceleration of payment.The government may request the court to issue an order modifying a payment schedule or requiring immediate payment in full or in part of any fine or restitution amount owed, upon a showing of the defendant's ability to pay or for other good cause.
''(b) Motions to compel. The government may request the court to compel compliance with a sentence to pay a fine or restitution if the defendant is in default.
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''(1) Default.A defendant is in default if payment on a fine or restitution order is not made 90 days or more after the payment became due.
''(2) Effect of Default.Upon any default by the defendant, the court may
''(A) revoke or modify the conditions of probation or supervised release pursuant to section 3565;
''(B) resentence a defendant pursuant to section 3614
''(C) enter or adjust a payment schedule
''(D) impose a late payment penalty of up to 25% of the amount owed, or ''(E) hold the defendant in contempt of court.
''(3) Factors to be Considered.The court shah consider the defendant's employment status, earning ability, financial resources, the willfulness in failing to comply with the fine or restitution order, and any other circumstances that may have a bearing on the defendant's ability or failure to comply with the order of a fine or restitution.
''(c) Hearing.If a hearing is held pursuant to this section to enforce a fine or restitution order, the hearing may be conducted by telephone, video conference, or other communications technology when a defendant is confined to jail, prison, or other correctional facility, and the defendant's participation is required.''.
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(8) Section 211 of the Mandatory Victims Restitution Act of 1996 is amended to read as follows:
''SEC. 211. EFFECTIVE DATED;
''(a) IN GENERAL.Except as provided in subsection (b), the amendments made by this subtitle shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act.
''(b) COLLECTION AND ENFORCEMENT.The amendments made by paragraphs (1) and (3) of subsection (c) of section 207 shall apply to any case commenced on, before, or after the date of enactment of this Act.''.
(9) Section 3002(3) of title 28, United States Code, is amended
(A) by striking ''or'' at the end of subparagraph (A); and
(B) by striking ''and'' and all that follows through ''3011(a).'' and inserting:
''(C) an amount owing to the United States for the benefit of an Indian tribe or individual Indian, or
Page 235 PREV PAGE TOP OF DOC ''(D) an amount the United States is authorized by statute to collect for the benefit of any person.''
(j) INCREASE OF SPECIAL ASSESSMENTS. Section 3013(a)(1)(B) of title 18, United States Code, is amended
(1) in clause (i) by striking ''$25'' and inserting ''$50''; and
(2) in clause (ii), by striking ''$50'' and inserting ''$100''; and
(3) in clause (iii), by striking ''$125'' and inserting '$250''.
(k) VICTIMS OF CHILD ABUSE ACT AMENDMENT AND AUTHORIZATION.(1) Section 3509(d)(4) of title 18, United States Code, is amended by striking ''or an adult attendant'', and inserting '', an adult attendant, or a crime victim compensation board or agency''.
(2) There are authorized to be appropriated to the Judiciary in each fiscal year such sums as may be necessary for the appointment and compensation of guardians ad litem pursuant to section 3509(h) of title 18, United States Code.
(1) VICTIMS OF CRIME ACT AMENDMENTS.(1) Section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) is amended
(A) in subsection (b)
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(i) in paragraph (1), by inserting ''(and the interest thereon)'' after ''all fines'';
(ii) in paragraph (3), by striking ''and'' at the end;
(iii) in paragraph (4), by striking the period at the end and inserting ''; and''; and
(iv) by adding at the end the following:
''(5) gifts, bequests, and donations from private entities and individuals for any purpose authorized under this chapter, to be disbursed as may be specified by the Director.''.
(B) in subsection (d)(2), as designated by section 7(i)(4)(C) of this Act
(i) by striking ''48.5'' in each of subparagraphs (A) and (B) and inserting ''47.5'', and
(ii) by striking ''3'' in subparagraph (C) and inserting ''5'';
(C) in subsection (d)(3), as designated by section 7(i)(4)(C) of this Act, by adding at the end the following:
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''(C) State compensation programs which receive supplemental funding to respond to incidents of terrorism or mass violence, and which receive funds through the state's subrogation interest from a claimant's civil recovery, refund, or other reimbursement, shall be required to reimburse the Crime Victims Fund. The amount of reimbursement shall equal the amount received through subrogation times the percentage of Crime Victims Fund money in the total compensation award to the claimant.'', and
(D) in subsection (e), by inserting at the end the following: ''Any sum made available to the judicial branch under this section that has not been expended as of February 1, 1997, shall be deposited in the Crime Victims Fund and may be used by the Director to improve services for the benefit of crime victims in the federal criminal justice system.''.
(2) Section 1403 of the Victims of Crime Act of 1984 42 U.S.C. 10602) is amended
(A) in subsection (a) (3), by inserting ''and program evaluation'' after ''administration'', and
(B) by amending subsection (c) to read as follows:
''(c) EXCLUSION FROM INCOME AND ASSETS FOR PURPOSES OF MEANS TESTS.Notwithstanding any other law, any payment, asset, or resource that a victim receives through a crime victim compensation program under this section shall not be included in the income, assets, or resources of the victim for the purpose of any maximum avowed income, assets, or resources requirement in any Federal, State, or local program using Federal funds that provides medical or other assistance (or payment or reimbursement of the cost of such assistance), and shall not result in a reduction of the assistance available to the victim under such a Federal, State, or local program, provided, that this subsection does not entitle a victim to compensation for a loss under any program or combination of programs that exceeds the full value of the loss.''.
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(3) Section 1404 of the Victims of Crime Act of 1984 (42 U.S.C. 10603) is amended
(A) in subsection (b)
(i) in paragraph (1) (A), by inserting ''(including an agency of the United States Government performing law enforcement functions in and for the District of Columbia or the United States Virgin Islands)'' after ''public agency'', and
(ii) in paragraph (3), by inserting ''and program evaluation'' after ''administration'';
(B) in subsection (c)(1)
(i) by striking ''The Director, shad make grants'' and inserting ''The Director shall make grants or enter into cooperative agreements'', and ii) by amending subparagraph (A) to read as follows:
''(A) for demonstration projects, program evaluation, training, and technical assistance services to eligible organizations with a history of working with victim issues or mandated responsibilities for victim assistance, or with a demonstrated history of conducting program evaluations, and'';
(C) in subsection (c)(3)
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(i) in subparagraph (A), by inserting ''federal statutes, including but not limited to,'' before ''section 6'';
(ii) by striking ''and'' at the end of subparagraph (C)
(iii) by redesignating subparagraph (D) as subparagraph (F); and
(iv) by inserting after subparagraph (C) the following:
''(D) be authorized to use program funds for fellowships, and to carry out programs of training and special workshops for the presentation and dissemination of information resulting from demonstrations, surveys, and special projects, as deemed appropriate by the Director;
''(E) coordinate the annual commemoration of National Crime Victims Rights Week, including the Presidential Crime Victim Service Award Ceremony and the Attorney General Crime Victims Fund Award Ceremony; and'':
(D) in subsection (d)(2)
(i) in subparagraph (C), by striking ''and'';
(ii) by inserting ''and'' at the end of subparagraph (D); and
Page 240 PREV PAGE TOP OF DOC (iii) by adding at the end the following:
''(E) public awareness, education, and intervention activities that promote and are conducted in conjunction with the provision of victim assistance; and
''(F) for purposes of an award under subsection (c)(l)(A), preparation, publication, and distribution of informational materials and resources for crime victims and organizations that provide victim services;'';
(E) in subsection (d)(3)
(i) by striking ''and'' at the end of subparagraph (B);
(ii) by inserting ''and'' at the end of subparagraph (C); and
(iii) by inserting at the end the following:
''(D) victim assistance programs which provide long-term mental health counseling services, and training and technical assistance which addresses the significance of and effective delivery strategies for long-term psychological care;'';
(F) by amending subsection (d)(4) to read as follows:
''(4) the term crises intervention and mental health counseling services' means services to provide emotional support in crises following and related to the occurrence of crime for individuals, couples, or family members;'';
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(G) in subsection (d)(5), by striking the period at the end and inserting ''; and'';
(H) by adding at the end of subsection (d) the following:
''(6) the term 'eligible organization' includes national organizations with an interest in and/or commitment to developing, implementing, evaluating, or enforcing victims rights and the delivery of victim services, State agencies and local units of government, agencies of the United States Government performing law enforcement functions in and for the District of Columbia or the United States Virgin Islands tribal organizations, private and public not-for-profit agencies and other public or private organizations and agencies deemed appropriate by the Director.''.
(m) EFFECTIVE DATE AMENDMENT.Section 233(d) of the Antiterrorism and Effective Death Penalty Act of 1996 is amended by striking ''1 year after the date of enactment of this Act'' and inserting ''on October 1, 1999''.
SEC. 8. EFFECTIVE DATE.
The provisions and amendments of this Act shall, to the extent constitutionally permissible, apply to an cases, actions, and proceedings pending or commenced or commenced on or after the date of enactment of this Act.
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
DEAR CHAIRMAN HYDE: Thank you for inviting me to remain after my testimony in order to hear the presentation of the other witnesses, notably Ms. Jacquelynn Davis of Dallas Texas, Ms. Donna Edwards, Executive Director, National Network to End Domestic Violence, Washington, D.C., Mr. Robert Horowitz, Prosecuting Attorney, Stark Count, Ohio, and Mr. Bruce Fein, Constitutional Scholar and Syndicated Columnist of McLean, Virginia. In response to your invitation, I believe it would be appropriate to comment on my reaction to the testimony of these witnesses.
MS. JACQUELYNN DAVIS
The experiences outlined by Ms. Davis in her testimony were outrageous and compelling. I would state unequivocally that if I thought a federal constitutional amendment would prevent such occurrences, I would be wholly supportive. However, a federal constitutional amendment would, in my opinion, not prevent the horrors caused by a brutal husband when encountered by insensitive or incompetent prosecuting officers. If the Texas Constitution and its statutes did not cause the prosecutors in the Dallas area to seek an appropriate penalty, I doubt that a federal constitutional command would be more effective.
I should like to point out that in my own state, our Attorney General chairs a committee on domestic violence which works in close conjunction with a court committee on domestic violence, chaired by a Family Court judge. This committee meets frequently and I attend whenever possible. In each of our courts, we have a domestic violence coordinator as wed a coordinator who serves state-wide and whose responsibility includes training sessions for our various state and municipal police departments.
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In May of this year we had a seminar to which an members of the Supreme, Superior Family and District severe invited. We heard nationally prominent speakers as well as representatives of our own Attorney General's Department. The purpose of this seminar was to raise the level of consciousness of our judicial officers concerning the special needs of domestic violence victims.
There is no substitute for constant work and effort on the state and local level to implement our existing laws and procedures in order to protect and assist victims of domestic violence such as Ms. Davis.
MS. DONNA EDWARDS
I found Ms. Edwards' testimony to be most persuasive. She explored the weaknesses inherent in attempting by a symbolic gesture to control shortcomings at the local level by a purported national solution. She presented illustrations of ambiguities inherent in the proposed constitutional amendment that might lead to significant problems in implementation. A federal constitutional amendment is no panacea. Problems must be solved at the local and state level where they exist.
She pointed out that ephemeral civil rights claims arising under the proposed amendment might have to be enforced by injunction. Government by injunction would invade the core element of sovereignty inherent in the state's exercise of judicial power. We have seen in the recent past examples of federal district judges purporting to run state correctional institutions and school systems. Generally such efforts resulted in enormous expense and disproportionately ineffective results.
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ROBERT HOROWITZ, ESQ.
I applaud the efforts being made by Mr. Horowitz as a prosecutor in implementing victims' rights within his jurisdiction. He is not alone in these efforts. The success of Mr. Horowitz is replicated in the State of Rhode Island where our Attorney General whose office handles prosecutions of all felonies is as sensitive to the rights of victims as any prosecutorial officer in either the state or federal system. Mr. Horowitz's success is indicative of appropriate actions which are and should be taken at the local level.
MR. BRUCE FEIN
Mr. Fein's testimony was most persuasive and should be carefully considered by the members of the committee. He points out the rationale which should underlie the deliberations concerning wisdom or lack of wisdom concerning a constitutional amendment. He points out that victims in this country command virtually universal sympathy. He points out the enormous success which victims' rights groups have achieved in obtaining the enactment of statutes and state constitutional amendments. Unlike criminals, they do not evoke the anger and hatred of the majority. He further points out that prosecutors and judges who do not abide by state law would not be more significantly persuaded by a federal constitutional amendment. He suggests that at worst, a federal constitutional amendment would create only a mirage that would further damage the credibility and esteem of Congress. He also suggests that if enforced by litigation, a hornets' nest of legal tussles would further clog the lead-footed judicial dockets.
I am sure that it is not your intention nor that of Congress to crush already overworked state judges and prosecutors between the upper and the nether millstones of federal oversight and the demands for injunctive relief to implement a constitutional imperative.
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I was greatly impressed, Mr. Chairman, with your conduct of the hearings on Wednesday, June 25. You have obviously taken a very impartial view noting the advantages and disadvantages of central control of criminal litigation for the benefit of victims. I would again urge you to consider enactment of a federal statute applicable to the federal judicial system, affording victims the rights to which the Congress believes they are entitled. Experience with such a statute in operation in the relatively manageable volume of criminal cases in the federal system would create a model from which the states could learn and which would be a source of inspiration to do more at the state and local levels.
Thanking you for your consideration of these comments, and for permitting me to attend and testify on June 25.
|Joseph R. Weisberger, Chairman,|
|Victims' Rights Task Force,|
|Conference of Chief Justices.|
PROPOSALS TO PROVIDE RIGHTS TO VICTIMS OF CRIME
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COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
H.J. Res. 71 and H.R. 1322
PROPOSALS TO PROVIDE RIGHTS TO VICTIMS OF CRIME
JUNE 25, 1997
Serial No. 28
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
C O N T E N T S
June 25, 1997
TEXTS OF BILLS
Page 249 PREV PAGE TOP OF DOC H.J. Res. 71
Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and chairman, Committee on the Judiciary
Davis, Jacquelynn, domestic violence victim
Edwards, Donna F., executive director, National Network To End Domestic Violence
Fein, Bruce, McLean, VA
Horowitz, Robert D., prosecuting attorney, Stark County, OH
Kazen, Hon. George P., Chief Judge, U.S. District Court for the Southern District of Texas, on behalf of the Judicial Conference of the United States
Pryce, Hon. Deborah, a Representative in Congress from the State of Ohio
Reno, Janet, Attorney General, U.S. Department of Justice
Weisberger, Hon. Joseph R., Chief Justice, Supreme Court of Rhode Island, on behalf of the Conference of Chief Justices
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Conyers, Hon. John, Jr., a Representative in Congress from the State of Michigan: Prepared statement
Davis, Jacquelynn, domestic violence victim: Prepared statement
Edwards, Donna F., executive director, National Network To End Domestic Violence: Prepared statement
Page 250 PREV PAGE TOP OF DOC Fein, Bruce, McLean, VA: Prepared statement
Horowitz, Robert D., prosecuting attorney, Stark County, OH: Prepared statement
Kazen, Hon. George P., Chief Judge, U.S. District Court for the Southern District of Texas, on behalf of the Judicial Conference of the United States: Prepared statement
Pryce, Hon. Deborah, a Representative in Congress from the State of Ohio:
Florida Statutes 1996
Reno, Janet, Attorney General, U.S. Department of Justice: Prepared statement
Weisberger, Hon. Joseph R., Chief Justice, Supreme Court of Rhode Island, on behalf of the Conference of Chief Justices: Prepared statement
Material submitted for the hearing
(Footnote 1 return)
The Conference of Chief Justices notes that 29 States have constitutional provisions regarding the protection of victims rights, most of which have been enacted recently (Alabama, '94; Alaska, '94; Arizona, '88; California, '82; Colorado, '92; Connecticut, '96; Florida, '88; Idaho, '94; Illinois, '92; Indiana, '96; Kansas, '92; Maryland, '94; Michigan, '88; Missouri, '92; Nebraska, '96; Nevada, '96; New Jersey, '91; New Mexico, '92; North Carolina, '96; Ohio, '94; Oklahoma, '96; Oregon, '96; Rhode Island, '86; South Carolina, '96; Texas, '89; Utah, '94; Virginia, '96; Washington, '89; Wisconsin, '93). We also note that legislative efforts are currently under way to pass State constitutional amendments in Georgia, Maine, Massachusetts, and New York.
(Footnote 2 return)
See Pulliam v. Allen, 452 U.S. 522 (1984).
(Footnote 3 return)
''Staff Analysis: Proposed Crime Victims' Bill of Rights'', National Association of Attorneys General (March 11,1997) Executive Summary, p. 2.
(Footnote 4 return)
United States v. Lopez, 514 U.S. 549.