SPEAKERS CONTENTS INSERTS
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64–735
2000
RIGHTS OF CRIME VICTIMS CONSTITUTIONAL AMENDMENT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.J. Res. 64
FEBRUARY 10, 2000
Serial No. 134
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Printed for the use of the Committee on the Judiciary
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 S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
February 10, 2000
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TEXT OF BILL
H.J. Res. 64
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Barcia, Hon. James A., a Representative in Congress From the State of Michigan
Beloof, Doug, visiting professor of law, Northwestern School of Law of Lewis & Clark College, Portland, OH
Chabot, Hon. Steve, a Representative in Congress From the State of Ohio
Fein, Bruce, former Associate Deputy Attorney General, United States Department of Justice, Great Falls, VA
Feinstein, Hon. Dianne, a U.S. Senator From the State of California
Kyl, Hon. Jon, a U.S. Senator From the State of Arizona
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Long, Christine, member of the board of directors and chairperson of Victims' Rights Committee, Law Enforcement Alliance of America, Inc., Falls Church, VA
Mosteller, Robert P., professor of law, Duke University School of Law, Durham, NC
Rehkamp, Andrea, executive director and co-founder, Mothers Against Drunk Driving, Southwestern Ohio Chapter, Cincinnati, OH
Scott, Hon. Robert C., a Representative in Congress From the State of Virginia
Sullivan, Emmett G., United States District Court for the District of Columbia, member of the Committee on Criminal Law and chairman of the Subcommittee on Legislation, Judicial Conference of the United States, Washington, DC
Twist, Steven J., member of the Steering Committee, National Victims' Constitutional Amendment Network and former chief assistant attorney general, State of Arizona, Scottsdale, AZ
Young, Marlene A., executive director, National Organization for Victim Assistance, Washington, DC
Welch, Emmett E. (Bud), member, Murder Victims' Families For Reconciliation, Oklahoma City, OK
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Barcia, Hon. James A., a Representative in Congress From the State of Michigan: Prepared statement
Beloof, Doug, visiting professor of law, Northwestern School of Law of Lewis & Clark College, Portland, OH: Prepared statement
Chabot, Hon. Steve, a Representative in Congress From the State of Ohio: Prepared statement
Fein, Bruce, former Associate Deputy Attorney General, United States Department of Justice, Great Falls, VA: Prepared statement
Long, Christine, member of the board of directors and chairperson of Victims' Rights Committee, Law Enforcement Alliance of America, Inc., Falls Church, VA: Prepared statement
Mosteller, Robert P., professor of law, Duke University School of Law, Durham, NC: Prepared statement
Rehkamp, Andrea, executive director and co-founder, Mothers Against Drunk Driving, Southwestern Ohio Chapter, Cincinnati, OH: Prepared statement
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Sullivan, Emmett G., United States District Court for the District of Columbia, member of the Committee on Criminal Law and chairman of the Subcommittee on Legislation, Judicial Conference of the United States, Washington, DC: Prepared statement
Twist, Steven J., member of the Steering Committee, National Victims' Constitutional Amendment Network and former chief assistant attorney general, State of Arizona, Scottsdale, AZ: Prepared statement
Young, Marlene A., executive director, National Organization for Victim Assistance, Washington, DC: Prepared statement
Welch, Emmett E. (Bud), member, Murder Victims' Families For Reconciliation, Oklahoma City, OK: Prepared statement
APPENDIX
Material submitted for the record
RIGHTS OF CRIME VICTIMS CONSTITUTIONAL AMENDMENT
THURSDAY, FEBRUARY 10, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
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The subcommittee met, pursuant to notice, at 10:28 a.m. in Room 2237 Rayburn House Office Building, Hon. Charles T. Canady, chairman of the subcommittee, presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Asa Hutchinson, Bob Goodlatte, Bob Barr, William L. Jenkins, Melvin L. Watt, Jerrold Nadler, and Robert C. Scott.
Staff Present: Jonathan A. Vogel, counsel, Subcommittee on the Constitution; Paul B. Taylor, counsel, Subcommittee on the Constitution; Susana Gutierrez, clerk, Subcommittee on the Constitution; and Anthony Foxx, minority counsel; Subcommittee on the Constitution.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. The subcommittee convenes today to conduct a hearing on H.J. Res. 64, Proposing an Amendment to the Constitution of the United States to Protect the Rights of Crime Victims.
[H.J. Res. 64 follows:]
106TH CONGRESS
1ST SESSION
H. J. RES. 64
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Proposing an amendment to the Constitution of the United States to protect the rights of crime victims.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 4, 1999
Mr. CHABOT (for himself, Ms. ROS-LEHTINEN, Mr. SALMON, Mr. BARCIA, Mr. SESSIONS, Mr. BRADY of Texas, Ms. PRYCE of Ohio, Mr. LOBIONDO, Mrs. BONO, Mr. SHADEGG, Mr. SMITH of New Jersey, Mr. HORN, Mr. CUNNINGHAM, Mr. GREEN of Wisconsin, Mr. LATOURETTE, Mr. LAHOOD, Ms. GRANGER, Mr. GALLEGLY, Mr. GEKAS, Mr. DELAY, Mr. YOUNG of Alaska, Mr. MORAN of Virginia, Mr. FOLEY, and Mrs. MYRICK) introduced the following joint resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States to protect the rights of crime victims.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
''Article —
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''SECTION 1. 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 shall have the rights—
''to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime;
''to be heard, if present, and to submit a statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence;
''to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence;
''to the foregoing rights at a parole proceeding that is not public, to the extent those rights are afforded to the convicted offender;
''to reasonable notice of a release or escape from custody relating to the crime;
''to consideration of the interest of the victim that any trial be free from unreasonable delay;
''to an order of restitution from the convicted offender;
''to consideration for the safety of the victim in determining any conditional release from custody relating to the crime; and
''to reasonable notice of the rights established by this article.
''SECTION 2. Only the victim or the victim's lawful representative shall have standing to assert the rights established by this article. Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling, except with respect to conditional release or restitution or to provide rights guaranteed by this article in future proceedings, without staying or continuing a trial. Nothing in this article shall give rise to or authorize the creation of a claim for damages against the United States, a State, a political subdivision, or a public officer or employee.
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''SECTION 3. The Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest.
''SECTION 4. This article shall take effect on the 180th day after the ratification of this article. The right to an order of restitution established by this article shall not apply to crimes committed before the effective date of this article.
''SECTION 5. The rights and immunities established by this article shall apply in Federal and State proceedings, including military proceedings to the extent Congress may provide by law, juvenile justice proceedings and proceedings in the District of Columbia and any commonwealth, territory, or possession of the United States.''.
Mr. CANADY. Despite the growing number of Federal and State statutes and State constitutional amendments that extend rights to victims of crime, victims' rights advocates contend that such measures provide an inadequate patchwork of protections. They suggest that we in the Congress heed the advice of the Presidential Task Force on Victims of Crime, which in 1982 recommended that the only way to fully protect crime victims' rights is to provide for such rights in an amendment to the Constitution of the United States.
Opponents of a victims' rights amendment argue that crime victims are already adequately protected and that a Federal constitutional amendment could undermine the constitutional rights now afforded to criminal defendants.
H.J. Res. 64 provides constitutional rights to any victim of a crime for which the defendant can be imprisoned for a period longer than 1 year, commonly referred to as a felony, or any other crime that involves violence. The amendment enumerates certain rights that each victim of crime would have.
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This morning's hearing will address the necessity for a Federal constitutional amendment, the likely effects of such an amendment and the particular provisions of House Joint Resolution 64. Among the witnesses we will hear from today are Members of Congress, victims of crime, and representatives of victims' rights organizations and distinguished legal experts in the field of constitutional law. I am very pleased that we are able to have this hearing today.
I will note that I have had a longstanding interest in the subject of victims' rights. As a member of the Florida legislature, more than a decade ago, I was the House sponsor of the Victims' Rights Constitutional Amendment that was overwhelmingly adopted by the people of Florida, I think by about 90 percent. This is a subject that I think is important for us to consider here and I look forward to the testimony of the witnesses who will be appearing on the panels today.
Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
I think in the interest of time I will forego certainly any kind of extensive opening statement on this. Maybe I am mellowing in my old age but I am trying to get to the point where when we have hearings, I can refrain from kind of staking myself out before the witnesses testify. I obviously have had strong feelings about this issue and have expressed them before and I need not reiterate them in this setting and certainly do not need to reiterate them before the witnesses have a chance to expound on the merits or lack of merits of this proposal or any other proposal.
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So in the interest of time and in the interest of my advancing age and prudence, I think I will just forego any further statement and yield back.
Mr. CANADY. Thank you, Mr. Watt.
Are there other members wishing to make an opening statement? Mr. Hyde?
Mr. HYDE. Very, very, very briefly, I want to welcome a most distinguished panel. We are fortunate to have two of the brightest luminaries from the upper chamber and three superstars from the House, so we will have a spirited and informative hearing, I have no doubt.
Just cutting to the chase, I do not think there is any argument in logic or fairness against having a constitutional amendment granting victims the same parity as the accused have. There is no reason in logic why that should not be.
But the real problem that troubles me, and I hope we can hear something about this as we go along, how will this work? People who have a right to attend the trial, and in the Oklahoma bombing that was an awful lot of people, and have a right to be heard, families of victims, there are practical problems is what I am saying, that get in the way of a smooth and logical adoption of this amendment. In justice and fairness, we ought to give the same rights to the victims and families of victims.
Nonetheless, I want to support this bill and I probably will; I am sure I will. But there are some problems that I think you folks who are so committed to this ought to think about and try to help provide us with some solutions.
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Thank you very much, Mr. Chairman.
Mr. CANADY. Thank you.
Any other members wishing to be heard? Mr. Nadler?
Mr. NADLER. Mr. Chairman, I am, of course, as are we all, in sympathy with the victims of violent crimes and, for that matter, of non-violent crimes, and we wish to protect their rights and our court system ought to be designed to bring justice to victims of crimes and to punish those who violate the law.
We have constitutional guarantees for people accused of crimes, not for criminals but for people accused of crimes, who may be guilty or innocent. And there are certain rights that victims ought to enjoy.
I question the need for a constitutional amendment. I am open on the subject but I question the need for it and the use of it for several reasons. Number one, I do not see any impediment, and I have read quickly the amendment and I suspect that all or most of these rights are guaranteed by law in the Federal courts and in most or maybe all States and I remain to be persuaded of the need for a constitutional amendment to guarantee rights which are already accorded by statute or can be accorded by statute.
Secondly, you should always be reluctant—there is a tremendous burden of proof on those who want to say we should amend the Constitution. To put something into the Constitution is to freeze it in and if we find that the way we wrote it is not quite right, it is very difficult to amend. If you write a statute, you can amend the statute. A constitutional amendment is very difficult to amend.
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And some of these are very broadly stated, the drafting is very questionable, and we have to be very careful. And I have no doubt that if we were to recommend passage of a constitutional amendment, it would have to undergo considerable changes from the way it is. The definition of a victim is very broad and perhaps too broad. The right not to be excluded from public proceedings—in the Oklahoma bombing, how do you fit everybody, all victims into the courtroom?
Also, who is the victim? If someone is murdered, is the victim his heirs, his executors, his creditors who will not get their payment, who will not get repaid their debts? These questions have not been addressed and there is no hint of how they would be answered in the proposal before us.
So at the least, an amendment should be much more tightly drawn and answer these questions. That is another good reason why it is probably a better idea to have this in statute.
The real question, I think, faced by the proponents is to explain why—I know of no great lobby in this country or anywhere against victims' rights. I know of nobody telling legislatures we should not help the victims. I know of no legislator who runs on a platform saying I oppose victims' rights. It is not a great vote-getting platform.
So the real question is, you normally need this kind of amendment, such as in the Bill of Rights, to protect unpopular minorities, such as people accused of crimes or members of unpopular or minority religious groups. When every legislator sympathizes with a group of people and most or all legislatures have enacted similar protections to these by statute, I think there is a real burden of proof to say why do we need this in the Constitution? Why is the statutory protection not enough? That is the real question.
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So I remain open to it but skeptical. I yield back.
Mr. CANADY. Thank you.
Mr. Jenkins?
Mr. JENKINS. I do not have a statement, Mr. Chairman. Thank you.
Mr. CANADY. We will then proceed to our first panel of witnesses, which is made up of our distinguished colleagues, as Mr. Hyde has already acknowledged.
I notice our panel is tilted slightly physically to the right but not politically. I want to welcome all of you to our hearing today.
The first witness on today's panel will be the sponsor of H.J. Res. 64, the Honorable Steve Chabot of Ohio's First Congressional District. Congressman Chabot currently serves on the Judiciary, Small Business and International Relations Committees.
The second witness on the panel will be the Honorable Dianne Feinstein of California, chief cosponsor of the companion bill in the Senate. Representing California since 1992, Senator Feinstein currently serves on the Judiciary, Appropriations and Rules and Administration Committees.
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Following Senator Feinstein will be the sponsor of the companion bill in the Senate, the Honorable Jon Kyl of Arizona. Senator Kyl currently serves on the Judiciary Committee, as well as on the Appropriations and Intelligence Committees. He is also Deputy Senate Whip and vice chairman of the Senate Steering Committee. Prior to being elected to Congress, Senator Kyl founded the Arizona Crime Victim Foundation in 1983.
Our next witness will be the Honorable James A. Barcia, who represents the Fifth Congressional District of Michigan. Congressman Barcia, a cosponsor of H.J. Res. 64, serves on the Transportation and Infrastructure Committee, as well as the Science Committee.
Next, we will hear from the Honorable Robert Scott of Virginia's Third Congressional District. Representative Scott is currently a member of the Judiciary Committee and the Committee on Education and the Workforce and I will note the former ranking Democratic member of the Constitution Subcommittee. Representative Scott will be the final witness on this panel.
Again we welcome all of you. We would ask that you do your best to keep your comments to no more than 5 minutes. There is a light which you will see here. I do not think that anyone is going to insist on strict adherence to the 5-minute rule but if you could accommodate us by coming as close to that as possible, we would be very grateful.
Without objection, your full written statements will be made a part of the permanent record of the hearing.
Congressman Chabot.
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STATEMENT OF HON. STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Mr. CHABOT. Thank you, Mr. Chairman. I am very pleased to be here today with this outstanding bipartisan panel. And I want to emphasize that this is and has been and will be a bipartisan issue, with both Democrats and Republicans, liberals, conservatives, many people behind this effort to support what I consider one of the most important legislative efforts of the 106th Congress, the passage of a Victims' Rights Constitutional Amendment.
I would also like to thank my good friend Congressman Jim Barcia for his commitment to this very important issue. I am very glad to be working with him as lead cosponsors of H.J. Res. 64, and I would also like to thank Senators Kyl and Feinstein for outstanding leadership on this issue in the Senate and I want to thank them for taking their time to come over here to the House today.
Mr. Chairman, members of the Constitution Subcommittee, in 1982, President Ronald Reagan convened the Presidential Task Force on Victims of Crime. After holding hearings around the country and carefully considering this issue, the task force concluded that the only way to fully protect crime victims' rights was to amend the United States Constitution.
Following this strong recommendation, crime victims' rights advocates decided to seek constitutional protections on the State level before undertaking a Federal initiative, using the great laboratories of the States as the proving ground for their movement. As you know, the campaign to enact protections at the State level has been overwhelmingly successful, but the experiment has failed to adequately protect victims' rights.
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In 1982, California became the first State to pass a victims' rights amendment to its constitution. Since that time, 32 States, including my home State of Ohio, have passed similar amendments, with the truly overwhelming support of voters. The average State amendment has been ratified with 79 percent of the vote in statewide referendums.
You might then ask why a constitutional amendment is necessary? A logical question. The answer is simple. A clear pattern has emerged in courthouses around the country. Judges and prosecutors are reluctant to apply or enforce existing laws when they are routinely challenged by criminal defendants.
A study by the National Institute of Justice found that only 60 percent of victims are notified when defendants are sentenced and only 40 percent are notified of a defendant's pretrial release. A follow-up analysis revealed that minorities are least likely to be afforded their rights as victims.
Currently, the U.S. Constitution is completely silent on victims' rights while it speaks volumes to the rights of the accused. Thus, the U.S. Constitution essentially serves as a trump card for those accused of committing crimes, to keep victims from participating in their prosecution or even just sitting in the courtroom during the trial.
I am convinced that this is an outcome that the Framers never intended. The Constitution was written at a time when citizens routinely served as private prosecutors in their own cases. That changed over time and as the articulated rights of the accused became the benchmark for trial procedure, crime victims were left behind.
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A national constitutional amendment is needed to help facilitate a balance between the rights of victims and those of defendants. It would also establish uniformity in the criminal justice system and create a standard below which no State or Federal victims' rights law could go. These rights, like others guaranteed in the Constitution, would become fundamental and citizens of every State would be protected.
I want to stress that nothing—I repeat—nothing in this amendment will undermine or weaken the long-established rights of defendants under our Constitution. This amendment will, however, empower crime victims by giving them the knowledge and opportunity to confront their assailants in court and at sentencing or parole hearings. It will also protect victims by notifying them about the release or escape of their perpetrator from custody.
Finally, the amendment will restore victims by guaranteeing them the right to seek restitution from their attackers.
Many of the people you will hear from today know all too well that violent criminals damage or destroy the lives of innocent victims. Thirty-one million Americans fell prey to criminals in 1998. Some were victims of rape, others were killed by drunk drivers or held at knife point in their own homes. For too many years their voices have been silenced in a criminal justice system that recognizes only the rights of the accused. These victims have had to stand on the courtroom steps with meaningful justice just beyond their reach. Not allowed to view proceedings in person. Not permitted to speak out on behalf of a murdered loved one. Not even notified sometimes when a violent abuser is turned loose.
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Crime victims deserve to be treated better. They deserve to be treated with dignity in our criminal justice system. With the adoption of this amendment we, as a Nation, will finally fortify an important truth, that victims must have their own inalienable rights under our Constitution.
And what I have to say and what the other elected officials have to say here today really pales in comparison to what the witnesses in their own compelling stories, those victims and their family members who are here with us, have to say and I would strongly encourage the committee members to listen very closely or, if they are unable to attend today, to reveiw that testimony, which will be in writing, because the stories are heartrending and very compelling.
I thank the chairman and thank the other members of the committee.
[The prepared statement of Mr. Chabot follows:]
PREPARED STATEMENT OF HON. STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
I am very pleased to be here today with this outstanding bipartisan panel to support what I consider to be one of the most important legislative efforts in the 106th Congress—the passage of a Victims' Rights Amendment to the United States Constitution.
I would like to offer my sincerest thanks to Congressman Jim Barcia for his commitment to this important issue. I am very glad to be working with him as lead co-sponsors of H.J. Res. 64. I would also like to thank Senators Kyl and Feinstien for their outstanding leadership on this issue in the Senate.
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Mr. Chairman, members of the Constitution Subcommittee, in 1982, President Ronald Reagan convened the Presidential Task Force on Victims of Crime. After holding hearings around the country and carefully considering the issue, the Task Force concluded that the only way to fully protect crime victims' rights was to amend the U.S. Constitution.
Following this strong recommendation, crime victims' rights advocates decided to seek constitutional protections on the state level before undertaking a federal initiative, using the ''great laboratory of the states' as the proving ground for their movement. As you know, the campaign to enact protections at the state level has been overwhelmingly successful, but the experiment has failed to adequately protect victims' rights.
In 1982, California became the first state to pass a Victim's Rights Amendment to its constitution. Since that time, 32 states, including my home state of Ohio, have passed similar amendments—with the truly overwhelming support of voters. The average state amendment is ratified with 79% of the vote in state-wide referendums.
You might then ask why a constitutional amendment is necessary? The answer is simple: a clear pattern has emerged in courthouses around the country that judges and prosecutors are reluctant to apply or enforce existing laws when they are routinely challenged by criminal defendants.
A study by that National Institute of Justice found that only 60% of victims are notified when defendants are sentenced and only 40% are notified of a defendant's pre-trial release. A follow-up analysis revealed that minorities are least likely to be afforded their rights as victims.
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Currently, the U.S. Constitution is completely silent on victims' rights, while it speaks volumes as to the rights of the accused. Thus, the U.S. Constitution essentially serves as a trump card for those accused of committing crimes in order to keep victims from participating in their prosecution, or even just sitting in the courtroom during trial.
I am convinced that this is an outcome that the framers never intended. The Constitution was written at a time when citizens routinely served as private prosecutors in their own cases. That changed over time, and, as the articulated rights of the accused became the benchmark for trial procedure, crime victims were left behind.
A national constitutional amendment is needed to help facilitate a balance between the rights of victims and those of defendants. It would also establish uniformity in the criminal justice system and create a standard below which no state or federal victim's rights law could go. These rights, like others guaranteed in our Constitution, would become fundamental and citizens of every state would be protected.
I want to stress that nothing—I repeat, nothing—in this amendment will undermine or weaken the long-established rights of defendants under our Constitution.
This amendment will, however, empower crime victims by giving them the knowledge and opportunity to confront their assailants in court and at sentencing or parole hearings. It will also protect victims by notifying them about the release or escape of their perpetrator from custody. Finally, the amendment will restore victims by guaranteeing them the right to seek restitution from their attackers.
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Many of the people you will hear from today know all too well that violent criminals damage or destroy the lives of innocent victims. 31 million Americans fell prey to criminals in 1998. Some were victims of rape, others were killed by drunk drivers or held at knife point in their own homes. For too many years their voices have been silenced in a criminal justice system that recognizes only the rights of the accused. These victims have had to stand on the courtroom steps with meaningful justice right beyond their reach. Not allowed to view proceedings in person. Not permitted to speak out on behalf of a murdered loved one. Not even notified when a violent abuser is turned loose.
Crime victims deserve to be treated better. They deserve to be treated with dignity in our criminal justice system. With the adoption of this amendment we, as a nation, will finally fortify an important truth: that victims must have their own inalienable rights under our Constitution.
Mr. CANADY. Thank you, Representative Chabot.
Senator Feinstein, we will go to you. Let me say in advance I understand that Senator Feinstein and Senator Kyl have an impending vote in the Senate. We certainly understand that you need to return to your duties in the Senate, so when you need to leave after your statement, certainly feel free to do so. We want to thank you for being here.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
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Ms. FEINSTEIN. Thanks very much, Mr. Chairman. I appreciate being here very much.
I think it was three or 4 years ago that Senator Kyl asked me if I would work with him on this amendment and we have worked together, I think, in the best bipartisan spirit ever since. We have done about 65 drafts. We have worked with the White House. We have worked with attorneys general. We have worked with the Attorney General and her staff. We have worked with the district attorney associations. And we have lobbied our colleagues and gotten enough sponsors and cosponsors to create a critical mass. This amendment is now on the floor of the United States Senate and we believe we will have floor time in April.
Back in 1974, I first became involved in this movement by one specific case that took place in San Francisco. It was a man by the name of Angelo Pavageau, who invaded a home on Portero Hill. A young couple by the name of Carlson lived in that house. Pavageau came into the house. He bludgeoned to death Mr. Carlson with a hammer, a chopping block and a ceramic vase. He repeatedly raped Mr. Carlson's 24-year-old wife. He broke her bones in many places. He slit her wrists. He strangled her. And then, before fleeing, he set the home on fire.
Miraculously, Mrs. Carlson lived and testified against him and was the reason he was convicted and went to State prison.
Some years later she called—I think I was mayor at the time—and she did not know when he would be released. She had changed her name, she was living anonymously and she had a depth of fear that I have never seen before or really after that he would get released, she would not know it, and he would come after her and kill her. No American, Mr. Chairman, should have to live like that.
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So that is how I became involved in this victims' movement and, even in the very liberal city of San Francisco, was a proud supporter of the 1982 Victims Constitutional Bill of Rights that provides California victims with some rights. That is why you saw the family of Nicole Brown Simpson and Ronald Goldman sitting in court in a very famous case.
And as my predecessor has just testified, some 31 additional States have passed victims' rights amendments. Most recently, three States—Mississippi, Montana and Tennessee. Now, the votes in these States were 93 percent, 71 percent and 89 percent. And similar votes have happened across the United States. Overwhelming majorities pass these.
Now while the history of the Victims' Rights Amendment was pointed out, I want to point out a couple of other things. In 1789, we were 13 colonies, we were less than 4 million people. Today we have 8.6 million victims of violent crimes.
In the days when the Constitution was founded, victims actually had certain rights. In America in the late 18th Century and even well into the 19th Century, public prosecutors did not exist. Victims could and did commence criminal trials themselves. As was pointed out, they hired a sheriff to arrest the defendant. They initiated a private prosecutor. The core rights of our amendment—notice, to be present and to be heard—were inherently made available to the victim.
As one scholar has observed, at trial generally there were no lawyers for either the prosecution or the defense. Victims of crime simply acted as their own counsel, although wealthier crime victims often hired a prosecutor. Then gradually the concept of the public prosecution replaced the system of private prosecution around the mid-1800's. And with the explosive growth of crime in this country in recent years, it became easier and easier for the victim to be left aside in the process.
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Let me just quote for you something that Larry Tribe said before this House sometime ago. ''The rights in question—rights of crime victims not to be victimized yet again through the processes by which government bodies and officials prosecute, punish and release the accused or convicted offender—are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate.''
Now let me tell you why State amendments are insufficient. Maryland has a State amendment but when Cheryl Rae Enochs Resch was beaten to death with a ceramic beer mug by her husband, her mother was not notified of the killer's early release only two and a half years into his 10-year sentence and was not given the opportunity to be heard about this release, in violation of Maryland's State amendment.
Arizona has a State amendment, too. But an independent audit of victim witness programs in four Arizona counties, including Maricopa County, where Phoenix is located, found that, and I quote, ''Victims were not consistently notified of hearings during which conditions of a defendant's release were discussed. Victims were not consistently conferred with by prosecutors regarding plea bargains. Victims were not consistently provided with an opportunity to request post-conviction notification.''
Ohio has a State amendment. But when the murderer of Maxine Johnson's husband changed his plea, Maxine Johnson's husband was not notified of the public hearing, and then was not given the opportunity to testify at his sentencing, as provided for in Ohio law.
A Justice Department-supported study of the implementation of State victims' rights amendments made similar findings, and I quote. ''Even in States with strong legal protections for victims' rights, the victims' rights study revealed that many victims are actually denied their rights. Statutes themselves appear to be insufficient to guarantee the provision of victims' rights.
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''Nearly two-thirds of crime victims, even in States with strong victims' rights protection, were not notified that the accused offender was out on bond—two-thirds. Nearly half of all the victims studied, even in the strong protection States, did not receive notice of sentence hearings, notice that is essential if they are to exercise their right to make a statement at sentencing.''
And finally, a substantial number of victims reported that they were not given an opportunity to make a victim impact statement at sentencing or parole.
So we believe that State amendments are simply not enough. They provide different rights in different States, they do not exist in all the others, and they are too often ignored when they do exist.
Now, one of the things that we have had happen in our house is that members have said, ''Oh, we will pass a Federal law.'' Well, we did that. We passed a Federal law in the Oklahoma City bombing case and the judge ignored it. We passed a clarification law in that case, and the judge still ignored it.
The fact of the matter is that at the present time, the constitutionally protected right of the defendant or the accused will always trump the right of the victim under any subsidiary law, and that is what we tried to remedy in this constitutional amendment by giving victims of violent crimes eight basic core rights. In contrast, the accused has 15 basic core rights. This amendment would give the victim eight basic core rights. I believe it is long overdue.
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Let me answer quickly one other question. I think the chairman asked a question about solving some practical problems, and I think indeed there will be practical problems, just as there have been practical problems with virtually every right provided for the accused. Either a court will work that right out or the Congress will work that right out.
Section 3 of our draft gives the Congress the power to enforce this article by appropriate legislation. Section 2 provides that only the victim or the victim's lawful representative shall have standing to assert the rights established in this article. And therefore, if there are questions about the lawful representative, that lawful representative clearly has court access or we have the right to write a clarification statute to clear that up.
Bottom line, Mr. Chairman and members, the time has come to recognize that since the 1850's, 150 years have gone by and victims have not had constitutional rights, rights that should be constitutional. I thank the Chair.
Mr. CANADY. Thank you, Senator.
Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA
Mr. KYL. Thank you, Mr. Chairman.
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Senator Feinstein was going to lay out the case for the amendment. I was then going to get into the legal arguments. Everyone has stipulated to the case and Senator Feinstein has gotten right into the legal argument, so maybe I should simply pack up at this point, but I am going to go back to the beginning and make this point.
Mr. CANADY. Please do not do that. [Laughter.]
Mr. KYL. Well, my job is really to answer these questions and I am delighted to have the opportunity to do that. I have to make this first point. We cannot treat this problem antiseptically. Every time I hear another story about victims today or yesterday who were not provided their basic rights in court, it reminds me again how troubling it is to the victims and to their families and frequently inhibits the prosecutor's ability to move forward with the case, as well, but also how the current system is not working.
So we cannot just treat this problem antiseptically. We could cite hundreds of situations in just the last few years in both Federal courts and in State courts where there are constitutional amendments or statutes that exist that nevertheless have failed to protect the rights of the victim, and that is why we do have to get back to the basic case for this constitutional amendment.
I will get right to the two key questions because they go to the core. First of all, how will this work as a practical matter? Obviously a critical question, especially since there are many things that are not defined here, as Representative Nadler pointed out. But, of course, in reviewing the rights of people accused of crime—let us just focus on them for a moment—''a speedy trial;'' well, what does ''speedy'' mean? ''Counsel?'' It has been the last 25 or 30 years after Miranda that we finally figured out what the right of counsel is and how we are going to tell people about it. The same with respect to the right of self-incrimination. To be free from unreasonable searches and seizures—what does that mean?
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But my favorite, of course, is the right to due process of law. Now, we have, over the years, defined that through statute and through court decisions. It is a constitutional prerogative or requirement to state broad principles. It is a statutory prerogative and obligation then to put meat on that skeleton, and that is precisely, as Senator Feinstein said, what we provide by section 3 for enforcement through appropriate legislation.
We also, however, add something that no other constitutional amendment has. This was done, I would not say over my dead body because I am still here, but I was very reluctant to do this and yet, to get right to Chairman Hyde's question, I concluded it was probably appropriate, even though it is risky in the protection of these rights. We added another sentence. We said, ''Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest,'' but we provide for exceptions to be legislatively created. No other amendment explicitly provides for a legislative body to take away what the people, acting through their legislatures, has granted, has embedded in the Constitution. That is a pretty risky thing to do with rights that we embed in the Constitution. That is why we have the compelling interest standard.
But the point is we recognize that to deal with large cases, cases like the Oklahoma City bombing case, there will have to be exceptions if the courtroom is not big enough. We understand that. There are a couple of other situations that prosecutors have come up with that would also require some exceptions, where you have a gang and, for example, lots of people in the gang are committing crimes against each other, where you have both defendants and victims basically in the same group. You will have to deal with that through exceptions and there are innovative ways to do that.
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But the point is we clearly have anticipated, through these 63 drafts, the possibility of issues that will have to be dealt with legislatively and through court decision, and we have provided for a mechanism to do that.
You have before you the rights that we create here and let me just note some of them because these are not absolute rights. It is true, as Representative Nadler said, that many of the rights we provide in the Constitution are for people who might be otherwise victimized or dealt with shabbily, and we have tried to ensure that that does not happen. But the fact is victims are dealt with shabbily. Everybody loves the victims but they ignore them or treat them in a shabby way notwithstanding that fact.
Just one quotation here from Professor Lawrence Tribe. ''As explained, existing statutes and State amendments are likely, as experience to date sadly shows—'' we can cite case after case after case—''as experience to date sadly shows, to provide too little real protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or any mention of an accused's rights regardless of whether those rights are genuinely threatened.'' That is just the way that it happens.
So what have we done? Well, we have provided rights to reasonable notice of the proceedings, to attend all public proceedings. I mean they are public proceedings, after all. Shouldn't the victim be permitted to participate in public proceedings? To be heard at certain crucial stages. Not to have their way, not to win, not to have an advantage, but to be heard. To reasonable notice of the offender's release or escape. To consideration for a trial free from unreasonable delay. The accused has a right to a speedy trial, absolute right to a speedy trial. We say consider the victim's request to speed things along here.
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To an order of restitution. To have the safety of the victim considered in determining release from custody. To reasonable notice of these rights.
In other words, what we are trying to do is to say you have to at least listen to this person. You have to at least consider what they are saying to you. You do not have to do it. Whereas most of the defendants' rights are pretty absolute rights. We think this is the least that we can do.
I think I have responded to Representative Nadler's point about the need to define, and the chairman made this same point, to actually define these rights further, so let me just conclude, since the time is up.
People who have worked with this, whether they are for the constitutional amendment or not, generally acknowledge that it requires some effort to protect the rights of victims. And you will actually find some prosecutors' organizations that conclude that this effort is just too burdensome and they do not even like to have to deal with this. They do not want it embodied in the Constitution because it is a bother. It is a burden. It might even cost some money to provide notice to people.
Judges with whom I have spoken all acknowledge that they could do a lot better job of taking care of the victims, who have already been victimized once and now they find that in the court system they are being treated in a rather shabby fashion.
Everybody recognizes this. We all recognize they need to do better. It just does not happen and it will not happen until there is a Federal constitutional amendment that creates this basic core, at bottom, which, of course, could be built on but which at least begins to balance the scales of justice.
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Two final points. One, we take nothing away from any defendant's rights. Indeed, there is only one situation, I think, in which there would even be a potential conflict. And just as judges determine which of the rights, a right to a fair trial or the right of free press, might govern in a situation where press wants to be in a courtroom and the judge says no, you have a balancing of rights there and a judge could obviously balance the right of a victim to be present in the courtroom, even though the defendant felt that that was prejudicial. That right would have to be balanced. That is the only one in which I see a natural conflict here.
And finally, the only difference between our amendment in the Senate and the House amendment is the limitation in the Senate amendment to victims of violent crime. Our amendment was originally written similar to the House amendment to apply to any major crime. Frankly, to gain enough cosponsorship to assure that we had a good shot at getting it passed, we limited it to violent crime. That is the only major difference between the two amendments.
Mr. Chairman, I just want to thank you and all of the members. I want to especially thank Chairman Hyde, who has been always very helpful with very practical suggestions as to how we could approach this and make it better. But I thank you and the other sponsors of the legislation in the House for their efforts in this regard.
Mr. CANADY. Thank you, Senator Kyl.
Representative Barcia.
STATEMENT OF HON. JAMES A. BARCIA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
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Mr. BARCIA. Chairman Hyde, Chairman Canady, distinguished members of the committee, I want to thank you for this opportunity to share my thoughts with you this morning about this very important legislation.
Chairman Canady, I especially appreciate you calling this hearing and giving victims the forum to voice their concerns about the Constitution's silence on victims' rights.
Also, I want to say I am very proud to be working with my good friend and distinguished colleague, Congressman Steve Chabot, Senator Jon Kyl and Senator Dianne Feinstein to advance the cause of the constitutional amendment to ensure victims' rights in our criminal justice system.
I appreciate the willingness of members on both sides of the aisle to work together to protect the rights of victims. This cooperation extends beyond the members to their staffs, as well. On that note I would like to recognize the majority counsel, Jonathan Vogel, for his flexibility and willingness to accommodate our requests. I thank you, Jonathan.
I believe the measure before us this morning will change the current dynamics of our criminal justice system to one that is more fair to all parties and not allow victims to be revictimized by an unfair legal process.
Presently, the scales of justice are tilted against crime victims. For too long, victims of crime have gone unrecognized in the criminal justice laws. Too often, the victim is all but forgotten, left on the outside of the process, looking in. This is not right and should be changed.
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Victims should not occupy the fringes of our criminal justice process. They should have the right to be notified of and not excluded from any public proceedings relating to the crime committed against them. They should have the right to participate in parole or early release hearings. They should have the right to be notified when the perpetrator is released or escapes from custody. Their safety should be considered when the defendant might be released from custody.
The amendment before us is based on the fundamental principle that both victims of crime and the accused criminals have rights in our criminal justice system. The rights of the defendant are clearly outlined in the Constitution. It is now time for the rights of victims to also be guaranteed by our Constitution.
I recognize that critics of this amendment may say that we are trying to take away the rights of the defendant, to throw our country back to the days when the defendant was guilty until proven innocent. Clearly no one here today is advocating such a course. What my colleagues and I are trying to accomplish with the Victims' Rights Constitutional Amendment is to ensure that when a judge has to balance the rights of the victim with the rights of the defendant, the scale is not tipped in favor of the defendant.
I have also heard critics of this legislation ask the question: why does the Constitution need to be amended? Why cannot a State constitution address victims' rights? The answer to these questions is that when a judge is presented with a conflict between the rights of the victim and the rights of the defendant, the rights of the accused prevail. This is because rights guaranteed under the Constitution, the defendants' rights, take precedence over the rights of the victim, which are not universally and uniformly protected.
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When a judge balances the defendant's rights in a Federal Constitution against victims' rights in a State law, the victim always loses. Rights of the defendant which are guaranteed under the Constitution will always take precedence over the rights of victims which are not universally guaranteed.
To date, some 32 States have passed some form of a victims' rights amendment to their State constitutions, yet a National Institute of Justice study found that in these States, only 60 percent of victims were notified when defendants were sentenced and less than 40 percent were notified of a defendant's partial release.
There are still far too many situations in which victims only learn that their perpetrator has been released by seeing them on the street. There are still too many situations where family members are not allowed in the courtroom during the trials of their loved one's perpetrator. There are still too many situations where the stories of the victims go untold. State laws have not effectively rectified these situations.
Like everyone in this room, I do not take amending the Constitution lightly, but I believe that only an amendment to the Constitution will bring an end to the suffering victims face at the hands of our legal process.
It was Supreme Court Justice Benjamin Cardozo, one of the preeminent judges of the first half of the 20th Century, who said, ''Justice, though due of the accused, is due to the accuser, also. The concept of fairness must be strained till it is narrowed to a filament. We are to keep the balance true.''
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As we enter this 21st Century, we see the filament Justice Cardozo spoke of becoming increasingly thin. Our current system is not fair to victims and the time has come for us to enact a constitutional amendment that will balance the scales of justice.
I will be wrapping up in just a moment, Mr. Chairman. I have just a little more.
Before I conclude my testimony, let me say one more thing. John Walsh, a good friend and a strong advocate of victims' rights, had planned to testify at today's hearing. However, due to a serious scheduling conflict, he was unable to appear, but this hearing would not be complete without referencing this remarkable man.
Many of you may know John from the crime-fighting television show, ''America's Most Wanted.'' However, his incredibly successful career as a host of an internationally televised program and as an advocate for victims' rights was a career that he never anticipated or desired.
In the summer of 1981, John Walsh was a partner in a hotel management company in Hollywood, Florida. He was living the American dream. He and his wife Revey had a beautiful 6-year-old son Adam, who was the joy of their lives. They never thought crime could touch them but their joy was shattered on July 27, 1981 when Adam was abducted and later found murdered.
The Walshes never received closure to this horrible tragedy. The prime suspect in Adam's murder was never charged in the case. He died in prison while serving a life sentence for other crimes, taking the truth to his grave with him.
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Since that day, John has dedicated his life to advancing the cause of victims' rights and using his television program to help bring closure to the lives of many crime victims. If he were here today, I think there is one message he would want to reinforce and leave with you this morning.
Our Nation was founded on the principles of equal protection under the law and equal justice for all. It is not until our Constitution specifically, expressly and universally guarantees the rights of victims that the scales of justice will truly be balanced. And I thank you for your consideration this morning.
[The prepared statement of Mr. Barcia follows:]
PREPARED STATEMENT OF HON. JAMES A. BARCIA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. Chairman, distinguished members of the Committee, I want to thank you for the opportunity to share my thoughts with you this morning about this important legislation. Chairman Canady, I appreciate you calling this hearing and giving victims a forum to voice their concerns about the Constitution's silence on victims' rights.
I am very proud to be working together with Congressman Steve Chabot, Senator Jon Kyl, and Senator Dianne Feinstein to advance the cause of a Constitutional Amendment to ensure victims' rights in our criminal justice system. I appreciate the willingness of Members on both sides of the aisle to work together to protect the rights of victims. This cooperation extends beyond the Members to their staffs as well. On that note, I would like to recognize the Majority Counsel, Jonathan Vogel, for his flexibility and willingness to accommodate our requests. I thank you.
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I believe the measure before us this morning will change the current dynamics of our criminal justice system to one that is more fair to all parties, and not allow victims to be re-victimized by an unfair legal process. Presently, the scales of justice are tilted against crime victims. For too long, victims of crime have gone unrecognized in criminal justice laws. Too often the victim is all but forgotten, left on the outside of the process looking in. This is not right and must be changed. Victims should not occupy the fringes of our criminal justice process. They should have the right to be notified of, and not excluded from, any public proceedings relating to the crime committed against them. They should have the right to participate in parole or early release hearings. They should have the right to be notified when the perpetrator is released or escapes from custody. Their safety should be considered when the defendant might be released from custody.
The amendment before us is based on the fundamental principle that both victims of crime and accused criminals have rights in our criminal justice system. The rights of the defendant are clearly outlined in the Constitution. It is now time for the rights of victims to also be guaranteed by our Constitution.
I recognize that critics of this amendment may say that we are trying to take away the rights of the defendant, to throw our country back to the days when the defendant was guilty until proven innocent. Clearly, no one here today is advocating such a course.
What my colleagues and I are trying to accomplish with the Victim's Rights Constitutional Amendment is to ensure that when a judge has to balance the rights of the victim with the rights of the defendant, the scale is not tipped in favor of the defendant.
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I have also heard critics of this legislation ask the questions, ''Why does the Constitution need to be amended? Why can't a State Constitution address victims' rights?'' The answer to these questions is that when a judge is presented with a conflict between the rights of the victim and the rights of the defendant, the rights of the accused prevail. This is because rights guaranteed under the Constitution—the defendant's rights—take precedence over the rights of the victim, which are not universally and uniformly protected. When a judge balances defendants' rights in the Federal Constitution against victims' rights in a state law, the victim always loses. Rights of the defendant, which are guaranteed under the Constitution, will always take precedence over the rights of victims which are not universally guaranteed.
To date, 32 states have passed some form of a Victims' Rights Amendment to their State Constitutions. Yet a National Institute of Justice study found that in these states only 60% of victims were notified when defendants were sentenced and less than 40% were notified of a defendant's pretrial release. There are still far too many situations in which victims only learn that their perpetrator has been released by seeing them on the street. There are still too many situations where family members are not allowed in the courtroom during the trials of their loved ones' perpetrator. There are still too many situations where the stories of the victim go untold. State laws have not effectively rectified these situations.
Like everyone in this room, I do not take amending the Constitution lightly. But I believe that only an amendment to the Constitution will bring an end to the suffering victims face at the hands of this process. It was Supreme Court Justice Benjamin Cardozo, one of the preeminent judges of the first half of the twentieth century, who said: ''Justice, though due of the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.''
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As we enter the twenty-first century, we see the filament Justice Cardozo spoke of becoming increasingly thin. Our current system is not fair to victims and the time has come for us to enact a Constitutional amendment that will balance the scales of justice.
Before I conclude my testimony, let me say one more thing. John Walsh, a good friend and a strong advocate of victims' rights had planned to testify at today's hearing. However, he was unable to appear this morning. But this hearing would not be complete without referencing this remarkable man. Many of you may know John from the crime fighting television show, America's Most Wanted. However, his incredibly successful career as a host of nationally televised program and as an advocate for victims' rights, was a career he never anticipated, or desired.
In the summer of 1981, John Walsh was a partner in a hotel management company in Hollywood, Florida. He was living the American dream. He and his wife, Reve, had a beautiful six-year-old son, Adam, the joy of their lives. They never thought crime could touch them. But their joy was shattered on July 27th, 1981, when Adam was abducted and later found murdered. The Walshs' never received closure to this horrible tragedy. The prime suspect in Adam's murder was never charged in the Adam Walsh case. He died in prison while serving a life sentence for other crimes, taking the truth to the grave with him.
Since that day, John has dedicated his life to advancing the cause of victims' rights and using his television program to help bring closure to the lives of many crime victims. If he were here today, I think there is one message he would want to reinforce and leave you with this morning: Our nation was founded on the principles of equal protection under the law and equal justice for all. It is not until our Constitution specifically, expressly, and universally guarantees the rights of victims that the scales of justice will truly be balanced.
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Thank you.
Mr. CANADY. Thank you, Representative Barcia.
Representative Scott.
STATEMENT OF HON. ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. SCOTT. Thank you, Mr. Chairman, Mr. Watt, and other members of the subcommittee. I appreciate the opportunity to appear before you today to share my views on the proposed constitutional amendment on victims' rights.
We have a criminal justice system which is designed to fairly determine guilt in a context which recognizes the great disadvantage that innocent citizens would face if they are accused of a crime and prosecuted by the full weight of government. That is why individuals accused of crimes are given the presumption of innocence until their guilt is proved beyond a reasonable doubt.
In criminal cases, the government represents the interests of victims, as well as the interests of society in general, in having those who commit crimes being held accountable for their offenses, but that accountability for a crime should begin only after the individual is found guilty beyond a reasonable doubt and not during the process of determining guilt.
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Proponents of the proposed constitutional amendment suggest that it is necessary to assure that victims receive proper respect and treatment. Now prosecutors, judges and other law enforcement officials are generally either elected officials themselves or selected by elected officials or report to an elected official. They have the responsibility of assuring that all individuals, victims as well as defendants, are treated with dignity and respect during the entire criminal justice process. If they fail in that responsibility, the voters have an ample remedy.
Now, make no mistake about the power of elected officials to respond to victims under present law. The senator from California mentioned the Oklahoma bombing case where a ruling was made that the victims did not agree with and they used their political power to have Congress change the law during the trial to affect that trial.
Now, people have pointed out that the polls demonstrate the power that victims have in 60, 70, 80, 90 percent passage of constitutional amendments. Whether they diminish the rights of defendants or not, they are very popular. The victims have the political power.
Now, the current Bill of Rights in our Constitution was developed by individuals familiar with the government's power and the Bill of Rights has served us well for over 200 years without a single amendment and I believe we should be extremely reluctant to amend the Constitution in general and the Bill of Rights in particular.
If there is a public consensus that there should be a legislative change, it should be done through the normal legislative process whenever possible, rather than an amendment to the Constitution. Indeed, we should only change the Constitution for profound reasons, not merely for reasons of popularity of the moment or because we disagree with a particular Supreme Court opinion. Amending the Constitution should only occur in those rare instances where there exists a compelling need to establish rights that cannot be established by other means.
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Now, as we have already noted, if the goals of such an amendment can be achieved by other means, such as statutes, they should be achieved that way, rather than constitutional amendment.
Now, it is my understanding that all 50 States either have a victims' rights constitutional amendment or victims' rights statutes, so that virtually every provision in the proposed Federal constitutional amendment is already law in 50 States.
So we have a question of exactly which provisions need constitutional protection, need a constitutional amendment. For example, you do not need a constitutional amendment to notify victims of proceedings or an impending release of a prisoner. You do not need a constitutional amendment to guarantee that victims and witnesses will be treated with dignity or respect. In fact, a constitutional amendment, if it is needed, would not be effective. You cannot guarantee by constitutional amendment that victims and witnesses will be treated with dignity or respect.
You do not need a constitutional amendment to require that speedy trial, that the interests of the victims be considered in a speedy trial determination.
The question really is which of these proposed initiatives will not impinge on the defendant's rights because if the defendant's rights are not affected, you do not need a constitutional amendment.
Now, given that the current Bill of Rights provides for rights of accused persons, this amendment would require courts to diminish the rights of the accused. And then again, which rights are we talking about? We already have a situation where blacks are stopped on highways because of their race. We already have situations where death row inmates are denied by statute even a hearing if they have evidence that they are probably innocent.
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What other rights will be affected? Will the traditional rights of the accused to exclude witnesses who might testify so that they will not have an opportunity to be influenced by the testimony or coordinate their testimony, will that right be subjugated to the right of a victim to be present? What other rights might be compromised? We ought to articulate those rights.
Now, the glaring problem with the proposed constitutional amendment is that it cynically purports to give rights to the victim but denies them any effective remedy. The usual presumption is that a right comes with a remedy and the amendment itself eliminates all customary remedies. In fact, the senator from California outlined the violations of some State constitutions. All have said that although there is a State constitutional right, it has been violated. Well, if you cannot enforce the State constitution and you have no provision in here to enforce the Federal Constitution, what have you given the victim that they do not already have? And that is what makes this entire constitutional amendment without remedy so cynical.
Mr. Chairman, a final point I would like to make is we ought to consider the question of equal protection and the quality of treatment of defendants. If, for example, defendants in a particular area are given 1 year for first offense burglary, what happens when you have an articulate, emotional victim? Should that defendant get more time than a defendant in an identical case where the victim comes up and is inarticulate or is absent? What weight should be given to that testimony?
Mr. Chairman, in the end, there is a lot we can do to assist victims. We can, for example, expand crime prevention and offender rehabilitation programs to reduce crime, to lessen victimization. We can increase crime victims' compensation funds so they can be better compensated when they have losses. We can fund victim witness coordinators so that victims and witnesses do not get lost during the proceedings. We can fund prosecutors, give them more training and reduce their caseload so they will actually have time to talk to people.
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If we are serious about helping victims, we should pursue those initiatives and not attack the Bill of Rights with an amendment which is either meaningless or will diminish the rights of defendants. However, unless there is a compelling showing that a compelling goal cannot be achieved by statute, I would hope that we would not amend the Bill of Rights, which has served us well for over 200 years.
Mr. CANADY. Thank you, Representative Scott.
Mr. Nadler? Typically we do not ask questions of a members panel. If the gentleman from New York insists——
Mr. NADLER. I would prefer it.
Mr. CANADY. Well, if you insist.
Mr. NADLER. I have sat here listening to this testimony and something just puzzles me and I would like to clarify it.
Mr. CANADY. Well, do you wish to ask any questions?
Mr. WATT. I do not have any questions but I will support Mr. Nadler's right to ask——
Mr. CANADY. No need to defend it. Mr. Nadler is recognized.
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Mr. NADLER. Thank you.
I would like to address this to Mr. Chabot and Mr. Barcia, perhaps Mr. Chabot first or whoever. I am puzzled by what you and Senator Feinstein were saying.
You have a lot of testimony and a lot of anecdotal evidence, and I assume it is all correct, of victims who did not get their rights. They were not notified of things they should have been notified of. They were not permitted to do things they should have been permitted to do under various State laws or State constitutional amendments.
So, in effect, what you are saying is that in these many cases, the State laws were not enforced. They have a failure of enforcement of State law or State constitutional amendment. How would amending the Federal Constitution affect that in any way? If a court is ignoring the existing law, the normal remedy for somebody ignoring a law is to go into court and get an injunction or something or try to make the law enforced. How does amending the Federal Constitution help enforce existing laws that are not being enforced? How does it help the enforcement problem at all?
Mr. CHABOT. I will take a shot at it first. I do not know if Mr. Barcia would like to also answer. I think it is a logical question. I think it is a good question.
I think the bottom line comes down to the fact that I think everybody in this country respects, in high school, for example, we are taught that the United States Constitution and the Bill of Rights is the law of the land, the thing that we all must comply with that guarantees certain rights. And the fact that it would be in the United States Constitution, I think everybody takes it serious at that point.
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If, for example, we had freedom of speech in Ohio and California but we did not have it in Utah or did not have it in New Mexico or whatever, people just do not take it as seriously, I think, because we are, as American citizens, brought up, taught from the time that we are conscious of how the laws in this country work that the United States Constitution is something that is absolutely serious and the law of the land. And the rights of criminals are protected in there innumerable times. The rights of the victims in there are totally absent.
So this is one area where many of us feel that it is time to protect the victims nationwide and have a universal application that is going to apply in every State, all across the country.
Mr. NADLER. But that brings up another question. I do not think that answers the first question. What you are really saying is that judges and authorities who may be perfectly content to ignore State laws and State constitutions, because of the majesty of the Federal Constitution, will, in fact, follow that. I wish history demonstrated either point.
Let me ask a different question. Let me ask Mr. Barcia in particular. You talked about, and Mr. Chabot referred to this, too, the Constitution protects rights of accused, people accused of crimes, and it certainly does. You talk about instances where that therefore trumps the right of a victim.
Give me some examples if you could of where a Federal constitutional right of a defendant trumps the right of a victim where a court has held that it does. Give me an example of where a court has held that the Federal constitutional right of an accused trumps the right of a victim and where it would not be unfair to change that.
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In other words, Representative Scott gave an example. You would not want, I presume, people who are going to testify later in court who may be victims or alleged victims—you are not always sure who the victim is—to be sitting there so they can coordinate their testimony. We normally prevent witnesses from sitting in the courtroom until they testify. Give me an example of where a court has held, in your view, where it should not have so held, where it is not right to do so, where we should change it, that a constitutional right of the accused trumps a right of a victim.
Mr. BARCIA. Now, this may not speak directly to your question, Congressman Nadler, but I will just cite the instance of one of my constituents, Miss Sherry Swanson, who was the victim of a crime in Fort Myers Beach, Florida, some 8 years ago in which the accused had been paroled on three separate occasions in the State correction system, the last time all having committed violent felonies, 11 violent felonies, had been incarcerated three times, served 2 years of a 10-year sentence.
During the 9 months that that person was free, he committed two more murders and then assaulted my constituent—she grew up in my district, was temporarily living in Florida for a period of time. She was shot twice in the head with a handgun, was in a coma for 6 months. Her medical bills were in excess of $1.5 million.
You know that she never had the satisfaction to bring to closure the person who perpetrated that crime against her, to have a trial. Because the evidence that was collected at the crime scene was used to convict him of two counts of first degree murder in the two murders that he committed, which was proven and convicted of first degree murder, the prosecutor said well, there is no sense in wasting additional taxpayers' dollars by prosecuting him in your case.
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I can only tell you, Jerry, that my constituent was emotionally very affected by that. Her life has been changed. She's been paralyzed.
Mr. NADLER. How would this amendment affect that situation?
Mr. BARCIA. Pardon me?
Mr. NADLER. How would this amendment have changed that situation, assuming this were in law?
Mr. CANADY. The gentleman's time has expired. I will give the gentleman an additional minute but we are going to have quite an opportunity to discuss this issue, which I think is an important issue that the gentleman from New York has raised, with the second panel. The gentleman has an additional minute.
Mr. NADLER. You did not have a situation there of a court declaring some alleged right of an alleged victim invalid because it was trumped by some alleged right of an alleged defendant. In the case you cited, assume this amendment were in law. How would it have changed that situation?
Mr. BARCIA. Well, perhaps as a victim of a violent crime, she may have been entitled to have the person who committed this heinous crime that changed her life forever prosecuted for the crime that he committed.
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Mr. NADLER. If I may, and tell me if you think I am wrong, as you state the situation, this guy committed multiple horrible crimes, he was convicted of two murders. The prosecutor, using his discretion as an elected official, declined to prosecute. He said, why bother? The guy is going to be in jail for life or is going to be executed, or whatever. This amendment would not compel the prosecutor to prosecute for the additional crime on her.
Mr. BARCIA. Might not compel him but I would agree with Congressman Chabot that in most instances where State and Federal judges have to make decisions in balancing the rights between the victim and the defendant, put more emphasis on the constitutional protections of the defendant than they do the victim.
And what we are trying to do is state in the Federal Constitution, through the amendatory process which the framers of our Constitution provided for, realizing that at some point we may have to refine that great document, that we can add an amendment and many times our country has amended our Constitution from the original text.
And what my belief is is that we would be providing a more level field for the concerns of the victim to be balanced with also the rights, the obviously very important rights of the defendants.
Mr. SCOTT. Mr. Chairman, can I make a very quick point on that? It will be quick.
Mr. CANADY. The gentleman will have an additional 30 seconds. I assume he will let Mr. Scott use it.
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Mr. NADLER. I certainly yield.
Mr. SCOTT. One, you do not need a constitutional amendment to guarantee notice. You can do that by statute. The question is what fundamental rights will be jeopardized.
In the question of whether the witness victims can get in and coordinate their testimony, page 2, lines 8 and 9 give the victims the absolute right not to be excluded from the public proceedings, and there you have the balance. Are they coordinating their testimony, being influenced by the previous testimony, and is that diminishing the rights of a defendant to have a fair trial? That is an example.
Mr. CHABOT. Mr. Chairman, could I have 30 seconds, as well?
Mr. NADLER. I will recognize myself, since we are going to go through this, and yield to the gentleman.
Mr. CHABOT. I will be very brief. Another example would be the defendant has the right to confront his witnesses. He has the right to have counsel appointed on his behalf if he cannot afford one, et cetera.
We have witnesses who are going to testify here today that they have had children that have been killed by drunken drivers, for example, and there have been plea bargains where the charges have been knocked down and people are getting $50 fines and 30-day suspensions of driver's licenses, for example, with no opportunity for these folks, these families, these victims to confront the people that did this or to even be present in the courtrooms or anything else. So that is an example where there is absolutely no balance at all, and that is the reason that this amendment is necessary.
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Mr. CANADY. I will yield back the balance of my time. And I want to thank all the members of this panel for being here. We appreciate your contribution to today's hearing.
Now we will go to the second panel. I would ask the members of the second panel to come forward and we will have your name tags placed on the table, if you could find your seats.
Our first witness on the second panel will be Andrea Rehkamp. Ms. Rehkamp cofounded the Southwestern Ohio Chapter of Mothers Against Drunk Driving in 1981 shortly after her 14-year-old son was killed by a drunk driver. She has served as treasurer, vice president, president and director of victim services and programs. On January 1, 1995, she became executive director of the chapter.
Our second witness will be Christine Long. Ms. Long, a victim of violent crime, is a member of the board of directors and the chairperson of the Victims' Rights Committee of the Law Enforcement Alliance of America. She has testified before Congress on several occasions, including in 1996 when she testified before the full House Judiciary Committee in support of a victims' rights amendment.
The next witness will be Emmett ''Bud'' Welch. Following the death of his 23-year-old daughter in the Oklahoma City bombing, Mr. Welch became active in the movement to abolish the death penalty. He appears today on behalf of Murder Victims' Families for Reconciliation.
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Following Mr. Welch will be Marlene A. Young, who is also a victim of violent crime. Ms. Young serves as executive director of the National Organization for Victim Assistance, a nonprofit public interest organization devoted to national advocacy on behalf of victims' rights and services, among other things.
Our next witness will be the Honorable Emmett G. Sullivan of the United States District Court for the District of Columbia. Judge Sullivan appears today on behalf of the Judicial Conference of the United States, where he serves on the Committee on Criminal Law and as chairman of the Subcommittee on Legislation.
Following Judge Sullivan will be Steven J. Twist. From 1978 through 1991, Mr. Twist served as the chief assistant attorney general for the State of Arizona. Today, Mr. Twist serves as assistant attorney general for Viad Corp. and on the steering committee for the National Victims' Rights Constitutional Amendment Network.
Our next witness will be Bruce Fein. Mr. Fein, a former Associate Deputy Attorney General for the United States Department of Justice, specializes in international and constitutional law in private practice. He has previously testified both before the House and Senate Judiciary Committees in opposition to a proposed victims' rights amendment.
Following Mr. Fein will be Professor Robert P. Mosteller of Duke University School of Law in Durham, North Carolina. Professor Mosteller has authored several articles on the proposed victims' rights amendment and was one of three primary signatories to a letter from 450 law professors submitted in 1997 to the Senate Judiciary Committee in opposition to a proposed victims' rights amendment.
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Our final witness of this panel and of the hearing today will be Professor Doug Beloof of Northwestern School of Law of Lewis & Clark College in Portland, Oregon. Professor Beloof has authored ''The Third Model of Criminal Process: The Victim Participation Model,'' which was published in the Utah Law Review, and he has recently coauthored with Professor Paul Cassell the yet-to-be-published ''Victim Attendance in the Courtroom.''
Again, I want to thank all of you for being with us here this morning for this important hearing. I would ask that you do your best to summarize your testimony in 5 minutes or less. Without objection, your full written statements will be made a part of the permanent record of the hearing.
If you observed, none of the members were finished in 5 minutes or less, so I do not think we are going to insist that anyone on this panel comply with the 5-minute rule but given the fact that we are going to be interrupted with some votes very soon and then later in the afternoon, to the extent that you can stay within the 5 minutes, as indicated by the light here, that would be helpful to the committee.
Again we thank each of you for being with us today. We will go to Ms. Rehkamp.
STATEMENT OF ANDREA REHKAMP, EXECUTIVE DIRECTOR AND CO-FOUNDER, MOTHERS AGAINST DRUNK DRIVING, SOUTHWESTERN OHIO CHAPTER, CINCINNATI, OH
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Ms. REHKAMP. Thank you. Good morning, Mr. Chairman and members of the subcommittee. Thanks for having me here this morning.
My name is Andrea Rehkamp and I am here today as executive director of the Southwestern Ohio Chapter of Mothers Against Drunk Driving, the largest crime victims assistance organization in the world, with more than 3.5 million members and supporters. I am a registered advocate with the State of Ohio and served as co-chair on the Ohio Constitutional Amendment Network, which secured passage of the 1994 Victims' Rights Amendment to the Ohio Constitution. I have been appointed by Governor Voinovich to represent victims on the Ohio Community Corrections Advisory Board and the STOP Program to develop and implement programs to combat violent crimes against women.
And I am pleased to be here today because I believe in order to put balance in the criminal justice system, the victim, as well as the accused, should be accorded equal rights to a meaningful role during court proceedings. I am proud to be supporting H.J. Res. 64 to add the Victims' Rights Amendment to the U.S. Constitution on behalf of MADD, crime victims and their advocates throughout this country.
On October 16, 1981, my son, Ken Watson, was killed by someone who chose to drink and drive. Ken was burnt to death. The offender escaped uninjured and was charged with driving under the influence, aggravated vehicular homicide and driving left of center.
I was not privileged to be involved with any part of the court proceedings and was not told the defendant had been offered and accepted a plea agreement reducing the crime to a misdemeanor. And on December 1 of that year, I received a letter from the court instructing me to attend the sentencing of the defendant. I was later told by a probation officer that the judge's reason for having me there was that he did not want me to go to the media and question what he had done in the case.
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When my husband and I arrived at court that day for the sentencing, the defendant had his family, his priest and his friends with him and I was told because my husband was Ken's stepfather and not his natural father, he could not go in the courtroom with me. After our attorney arrived, he did speak with court officials and they agreed to allow my husband to accompany me, but I was told that I was not allowed to say anything during the proceedings.
The defendant received a $50 fine, had his license suspended for 6 months and was placed on probation for 6 months. I was horrified by the light sentence given to the defendant and when I called the prosecuting attorney and the judge to express my concerns and to ask the reasoning for the plea agreement and the light sentence, my calls went unanswered.
Despite the fact that my family was enduring the aftermath of a terrible crime, we were in no way considered part of the justice system. I gave no victim impact statement. I was not able to tell the judge what a bright, intelligent, loving and talented son Ken was. Ken's name was not even mentioned during the sentencing proceedings. It was as if he was so unimportant that his name was not worth mentioning, yet the defendant, his family and friends were able to say what a great guy my son's killer was and how devastating a strict sentence would be to them.
The judge never knew what the death of my child had done to our family. It has been 18 years and yes, the pain is still here. I was not able to see Ken fulfill his dreams of becoming a professional baseball pitcher and I long for the grandchildren I will never have.
Ohio has rights in law and in the State constitutional amendment but law schools are not teaching them and the judicial system is not enforcing them. Victims' rights are being heard but we are not being listened to. Even the judges and prosecutors who are supportive of victims' rights err on the side of not violating the defendant's rights and by doing that, they continue to violate victims' rights by keeping victims and advocates out of courtrooms simply because they are worried about an appeal by the defendant. Victims do not have standing to object; only the prosecutor does.
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I am here today to ask you to support H.J. Res. 64. I am not asking for victims to determine cases, to determine when and if defendants are arrested, to control the trial process or sentencing, the amount of time to be served or when the defendant should be released. That control remains with government officials.
I am asking for victims to have protection in the system. I am only asking that any procedure where a defendant has the right to be notified, to be present and be heard that the victim be afforded the same right. Victims' rights should have the same protection in the United States Constitution as do defendants' rights. As long as defendants' rights are specified in the Constitution and victims' rights are specified in State by State statutes, the victim's role in the justice system will always be that of a second class citizen.
MADD and other groups have worked tirelessly to assure that these rights be reflected in State constitutions. Thirty-three States have done so. And with a Federal amendment needing the ratification of 38 States, we expect a strong affirmation for the need for a constitutional voice for victims.
MADD's victims, members and supporters stand ready to voice their support for victims' rights. Their voices will be heard. Your constituency needs to know that you support victims' rights. The time has come for victims to have a balanced voice with the defendants and that balance guaranteed in the same document—the Constitution—and we must pass this amendment to assure it. I am asking you to pass H.J. Res. 64 and I am asking you to stop the injustice of excluding victims from the very system that was set up to protect them.
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Thank you, Mr. Chairman and members of the subcommittee.
[The prepared statement of Ms. Rehkamp follows:]
PREPARED STATEMENT OF ANDREA REHKAMP, EXECUTIVE DIRECTOR AND CO-FOUNDER, MOTHERS AGAINST DRUNK DRIVING, SOUTHWESTERN OHIO CHAPTER, CINCINNATI, OH
My name is Andrea Rehkamp and I am here today as Executive Director of the Southwestern Ohio Chapter of Mothers Against Drunk Driving, the largest crime victims' assistance organization in the world, with more than 3.5 million members and supporters.
I am a Registered Victim Advocate with the State of Ohio, served as Co-Chair of the Ohio Constitutional Amendment Network, which secured passage of the 1994 Victim Rights Amendment to the Ohio Constitution, past President of the Ohio Victim Witness Association, a founding member and presently serve on the Review Committee for the Ohio Advocates Network, serve on the National Organization of Victim Assistance (NOVA) Crisis Response Team; The Ohio Crisis Response Team; and Greater Cincinnati Crisis Response Team. In 1991, was appointed by Governor George Voinovich, and served a 5-year term to represent victims on the Ohio Community Corrections Advisory Board and a current Citizens Advisory Board member for the Warren Correctional Institution. In June 1995, was asked by Governor Voinovich to serve on the STOP (Services, Training, Officers, Prosecutors) program to develop and implement programs to combat violent crimes against women. I have received the Victims Service Volunteer of the Year from the Court of Claims of Ohio; the Commendation Award from the National Commission Against Drunk Driving; the Certificate of Appreciation from the United States Department of Justice; as well as certificates of exemplary services for 1995 and 1997 from the Court of Claims of Ohio.
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I am here today because I believe that in order to put balance in the criminal justice system the victim as well as the accused should be accorded equal rights to a meaningful role during court proceedings. I am proud to be supporting House Joint Resolution 64 to add the Victims' Rights Amendment to the United States Constitution on behalf of MADD, crime victims and their advocates from throughout this country.
On November 7, 1981, Julie Taylor was out with friends, within a mile of being home, a man who chose to drink and drive that night crossed the centerline and even though Julie saw him coming at her, and was able to get all four wheels of her vehicle off the roadway, was hit almost head-on. Julie's passengers were slightly injured. Julie was decapitated. The offender was treated and released from the hospital and was charged with driving under the influence and aggravated vehicular homicide. Eleven days after Julie was killed, the defendant was in court on the charges. The case was heard in chambers, the charges reduced and the defendant was ordered to pay a $300.00 fine, 30 days suspended drivers' license, 120 days' suspension of pleasure driving and six-month suspended jail term.
Julie had been buried one week when her parents picked up the afternoon paper to read ''JAIL TERM SUSPENDED IN DEATH OF ROSS GIRL.'' Julie's parents were horrified to learn the case had gone to court without their knowledge.
June Taylor, Julie's mother went to a local reporter who wrote an article questioning the court proceedings in the case. The story ran on November 28, 1981.
Three weeks prior to Julie's death on October 16, 1981 my son Ken Watson was killed by someone who also chose to drink and drive. Ken was burnt to death. The offender escaped uninjured and was charged with driving under the influence, aggravated vehicular homicide and driving left of center. I was not privileged to be involved with any part of the court proceedings, was not told the defendant had been offered and accepted a plea agreement reducing the crime to a misdemeanor. On December 1, I received a letter from the court instructing me to attend the sentencing of the defendant. The only reason I was at the sentencing is because of the news story on November 28 in which June Taylor questioned the court proceedings in Julie's death. I was later told by a probation officer the judge's reason for instructing me to attend the sentencing in Ken's death was that he didn't want me to go to the media also.
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When my husband and I arrived at court for the sentencing the defendant had his family, priest, and friends with him but I was told that because my husband was Ken's stepfather and not his natural father he could not go in the courtroom. When our attorney arrived and after several minutes of negotiations court officials did agree to allow my husband to accompany me. I was also told that I was not allowed to say anything during the proceedings. The defendant received a $50.00 fine, had his license suspended for six months and placed on probation for six months. I too was horrified by the light sentence given to a defendant and when I called the prosecuting attorney and the judge to express my concerns and to ask the reasoning for the plea agreement and the light sentence my calls went unanswered. I wrote them letters and received no reply, I wrote them again and again and to this day neither the judge nor the prosecuting attorney have responded to my calls or letters. Despite the fact that my family was enduring the aftermath of a terrible crime, we were in no way considered part of the justice system.
I gave no Victim Impact Statement, I was not able to tell the judge what an intelligent, loving and talented son Ken was. Ken's name was not even mentioned during the sentencing proceedings. It was if he was so unimportant that his name wasn't worth mentioning. Yet the defendant and his family and friends were able to say what a great guy my son's killer was and how devastating a strict sentence would be to them. The judge never knew what the death of my child had done to our family. It has been 18 years and the pain is still here. I was not able to see Ken fulfill his hopes and dreams of becoming a professional baseball pitcher and I long for the grandchildren I will never have.
On December 7, 1981, June Taylor and I met with a group trying to start an MADD Chapter. June and I co-founded MADD Southwestern Ohio and since then as a victim advocate I have assisted hundreds of victims and their families of drunk driving crashes. Many times I have told victims ''there is nothing they can do'' because the defendant has all the rights afforded them in the Constitution and the victims' have none.
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Ohio has rights in law and in the State Constitutional Amendment, but law schools are not teaching them and the judicial system is not enforcing them. Victims' rights are being heard but are not being listened to, even the judges and prosecutors who are supportive of victims' rights error on the side of not violating the defendants' rights and by doing that they continue to violate victims' rights, by keeping victims and advocates out of courtrooms simply because they are worried about an appeal by the defendant. Victims don't have standing to object, only the prosecutor does.
I am here today to ask you to support House Joint Resolution 64. I am not asking for victims to determine cases, to determine when and if defendants are arrested, to control the trial process or sentencing, the amount of time to be served or when the defendant should be released. That control remains with government officials. I am asking for victims to have protection in the system. I am only asking that any procedures where a defendant has the right to be notified, present and heard, the victim be afforded the same right.
Victims' rights should have the same protection in the United States Constitution as do defendants' rights. The Constitution drafted with the intent to assure that the oppressed and downtrodden have a voice. It was designed to remove tyranny and control over the powerless. Our forefathers recognized that as times changed, so would the Constitution—and indeed it has.
A time came for slavery to be abolished—and the Constitution was amended to assure it. A time came for women to vote—and the constitution was amended to assure it.
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As long as defendants' rights are specified in the United States Constitution and victim rights are specified in state-by-state statutes, the victims' role in the justice system will always be that of a second-class citizen.
MADD and other groups have worked tirelessly to assure that these rights be reflected in state constitutions, and thirty-three states have done so. With a federal amendment needing the ratification of thirty-eight states we expect a strong affirmation of the need for a Constitutional voice for victims.
MADD's victims, members and supporters stand ready to voice their support for victims' rights. Their voices will be heard. Your constituency needs to know that you support victims' rights.
The time has come for victims to have a balanced voice with defendants, and that balance guaranteed in the same document Constitution. And we must pass this amendment to assure it. I'm asking you to pass House Joint Resolution 64. I'm asking you to stop the injustice of excluding victims from the very system that was set up to protect them.
Mr. CANADY. Thank you.
Before you proceed, Ms. Long, I will let you know, as you have already heard, that there is a vote going on on the floor, so the members are going to have to go to the floor for the vote. I think we need to do that before you start your testimony, Ms. Long. Otherwise we will be leaving as you are trying to complete what you want to say and we want to give you our full attention.
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So the committee will now stand in recess so that the members can go to the floor and vote. The committee will reconvene at 20 minutes after 12.
[Recess.]
Mr. HYDE [presiding]. Ladies and gentlemen, I think rather than delay any further, we will proceed with your testimony. We have a sufficient number here. We will await the chairman but meanwhile we can proceed. I am told we were up to Ms. Long. So if you do not mind, Ms. Long, please take 5 minutes and tell us your story.
Ms. LONG. I was hoping to have Congressman Scott here for this, to make some of my points.
Mr. HYDE. Would you rather wait? We will skip you and go to Mr. Welch. Then when Mr. Scott comes if, indeed he does, we will return to you.
Ms. LONG. We all want Mr. Scott.
Mr. HYDE. You both wanted Mr. Scott. Well, Ms. Young could go. We do not know if Mr. Scott is coming back or not but let's give it a chance.
Ms. LONG. Could we give that a chance? I would appreciate it.
Mr. HYDE. Surely. We are nothing if not flexible.
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Here is our chairman so my temporary usurpation comes to an end.
Mr. Chairman, we decided to let Ms. Long and Mr. Welch await the arrival of Mr. Scott, to whom they would like to direct their remarks, so we have moved to Ms. Young, if that is all right with you.
Mr. CANADY [presiding]. Absolutely. Please proceed.
STATEMENT OF MARLENE A. YOUNG, EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE, WASHINGTON, DC
Ms. YOUNG. Thank you. Chairman Canady and members of the subcommittee, I am Marlene Young, Executive Director of the National Organization for Victim Assistance or NOVA. Thank you for inviting me to speak in support of H.J. Res. 64, the proposed Constitutional Amendment for Victim Rights.
Founded in 1975, NOVA is the oldest and most far-reaching organized champion of victim rights and services in what has become a worldwide movement to bring healing and justice to crime victims. Our diverse and sophisticated board was the first national organization in the victims' movement to endorse the adoption of a Victims' Rights Amendment to the United States Constitution following its proposal for the President's Task Force on Victims of Crime.
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Proud as I am to speak for an institution I admire, I am also privileged to represent here the millions of Americans who fall victim to crimes each year. Like so many in this room, I, too, have known the pain of victimization. I also know the comfort that can be provided by the justice system when it is responsive to the victim's just expectations.
Since I am summarizing my testimony, I will not go through the recitation in my testimony of the three burglaries that I have been victimized by, one sexual assault, and the survival of my husband's first cousin and providing victim services to his Aunt Mary and Uncle Bernie after she had been stalked, raped, cut apart in pieces and distributed around the countryside in Indiana.
But I can say that these experiences have certainly shaped my views over the treatment of crime victims, that they have been reinforced by the constant exposure to the similar sufferings of people I have served. They can be plainly put in an emotional algorithm of fear and terror, rage and horror, confusion and frustration, self-blame and guilt, shame and humiliation, and horrible endless grief.
And the problem is that these kinds of emotions are exacerbated when they are not treated well by the criminal justice system. And unfortunately, despite what many of us call supreme progress over the last 25 years that I have been in the victims' movement, I can tell you that in many cases they are treated no better today than they were back in 1981, as you heard from Mrs. Rehkamp and her experiences.
I am reminded of a letter that I received 2 weeks ago in our office, a letter published in the Sumter, Georgia Free Press. It reads, in part, ''I write this letter as a victim, not only of the person who violated me but as a victim of a system gone bad. I was sexually battered here in Sumter County. I chose to press charges. Several days after the arrest and release of the accused,'' and I emphasize the arrest and release of the accused, ''I received a packet from the court which included a list of my rights, as defined by Georgia State law.'' Notice: several days after the arrest and release.
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''I should have received this information from the detective the day I gave my statement. Georgia law states that the investigator will provide the victim with a copy of Georgia's Victims Bill of Rights in plain English upon initial contact. My general rights as a victim, which I do not have to request, are as follows.''
''You, the victim, have the right to be notified of the arrest of the accused. This notification generally comes from the investigating authority. I was notified.''
''You, the victim, have the right to be notified of any proceeding where the release of the accused will be considered. This notification generally comes from the prosecuting attorney. I was not.''
''You, the victim, have the right to be notified of the release of the accused. The notification will come from the custodial authority. Again, I was not.''
''I do not write this as an attack on any one person but rather, as criticism on the system or the lack thereof in this area. Victims are everywhere and we have a right to be protected under Georgia law. How many other victims are out there who do not know what their rights are because the agencies are not working together?''
''Lucky for me, to date, I have not been further injured by the accused. Others in this county may not be as lucky as I have been. It is time that victims of crime be treated with respect and the laws set forth by the State of Georgia be followed. At what point are the laws of this State important to the authorities of Sumter County? Is a victim going to have to lose their life at the hand of a released attacker before something is done here in Sumter County? I hope not.''
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Member of the committee, the violation of the statutory rights for victims is not the remarkable thing in this letter, for research shows that they are commonplace, even in our Federal justice system.
What I would look forward to is seeing that corrected by a constitutional amendment, for my heart is controlled by the deep alliance with thousands of crime victims I have come to know in my 25 years of service. Far too many of those friends and acquaintances have been made to feel contaminated and violated by the justice system, not vindicated, and I will tell you that many have fallen by the wayside as 18 years have passed, 18 years since the then-Attorney General Ken Eichenberry of Washington State first put forth the idea of a constitutional amendment.
Edith Surgan's daughter was killed in New York in 1976 and she last testified from her nursing home bed in 1983 at the National Conference on Victim Rights and the Judiciary praising the efforts of Attorney General Eichenberry, and she died in July 1984.
Leon Matthews was robbed and beaten at gunpoint in 1982 and died in 1987 of injuries sustained in that attack. He was never given a chance to talk to the court or parole board about the impact of the crime had on his life.
And Ross and Betty Parks were parents of a murdered daughter Betsy, who waited 7 years for a murder trial. As Betty explained, it was six and one half years after Betsy died when Gary Coleman was extradited from a prison in Georgia to North Carolina and charged with her murder. For the next 14 months, he was able to delay going to trial with motion after motion, 31 of them at one point. Betty died last summer. I have grown to know these doubly-wronged victims of crime and feel it compels me to testify on behalf of this constitutional amendment.
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Let me say that as I have listened and read testimony today and read the testimony submitted, that I have been somewhat concerned about some of the issues raised, which have been reflected as having been raised over and over again, in hearings on Capitol Hill over the years, as well as in the numbers of people who have raised what I consider spurious objections.
Some of those include what happens when there are multiple victims involved in any case and there is disagreement? I found it particularly poignant that my fellow witness, Mr. Welch, raised that question because while I had not had a chance to meet him until today, I was struck and profoundly moved by a documentary that he did with Marsha Kight, another survivor of the Oklahoma City bombing in which they both talked about the impact on their lives. He particularly moved me in that documentary by talking about how much it meant for him to go to trial on behalf of his daughter Julie.
But I was also struck that he raised the issue of disagreement among multiple victims because it is clear that in Marsha Kight's support of the constitutional amendment and Mr. Welch's disagreement and opposition, there always will be disagreement among multiple victims. But that does not mean that either your committee or a court of law should not hear from those disagreements and then resolve them in your own minds with how that should affect a particular case. That is the passion of the moment.
I would also say that I was struck by the fact that there was a concern over the presence in a courtroom and people have said to me, ''Well, how does this concern affect a fair trial for defendants?'' Let me just say one thing to that and then I will conclude.
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It seems to me that if we can grant to a defendant under the United States Constitution the right to be in a trial, to confront his accuser throughout an entire trial, and we trust him and his codefendants not to listen to the testimony and change their testimony, when they would have the most interest in most cases of changing that testimony, surely we can give the innocent victims the right to be there and hear the same things and trust to them the same kind of sense of fairness and dignity.
Thank you very much for allowing me to testify. Let me say in conclusion that the resolution before you, when favorably acted on by Congress and the States, will finally answer the bitter complaint voiced by a victim years ago. ''All we ask is to be treated just like the criminals.'' Thank you.
[The prepared statement of Ms. Young follows:]
PREPARED STATEMENT OF MARLENE A. YOUNG, EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION FOR VICTIM ASSISTANCE, WASHINGTON, DC
Chairman Canady and Members of the Subcommittee, I am Marlene Young, Executive Director of the National Organization for Victim Assistance, or NOVA. Thank you for inviting me to speak in support of House Joint Resolution 64, a proposed Constitutional amendment for victims' rights.
I am proud to do so as a representative of the 4,500 agencies and individuals from all across the United States who are our members, and of the Board of Directors whom they have elected to serve as trustees of the victims' movement.
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Founded in 1975, NOVA is the oldest and most far-reaching organized champion of victim rights and services in what has become a worldwide movement to bring healing and justice to crime victims. Historically, those elected to our Board represent the true strength and diversity of the victims' movement in America. As an example, among our past Presidents are two clergy members and university professors, the Executive Director of the International Association of Chiefs of Police, the founder and operator of a battered women's shelter, the founder and administrator of a rape crisis center, a founding member of the American Professional Society on the Abuse of Children, a state corrections administrator, three elected prosecutors, a state victim services administrator, and a county-based victim assistance director.
Our diverse and sophisticated Board was the first national organization in the victims' movement to endorse the adoption of a victim rights amendment to the U.S. Constitution following its proposal by the President's Task Force on Victims of Crime.
Proud as I am to speak for an institution I admire, I am also privileged to be here to represent the millions of Americans who fall victim of crime each year. Like so many in this room, I too have known the fury, the terror, and the pain of victimization. I also know the comfort that can be provided by the justice system—when it is responsive to the victims' just expectations.
It is hard to put into words the shock and disbelief that I experienced upon entering my dream home in rural Oregon in 1980 to find it had been virtually wiped clean of all my belongings. But, I can remember the law enforcement officer who arrived to say that he was sorry that everything I possessed had been stolen and that he would like to help.
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I cannot fully express my fear, two weeks later, when alone in my partly-refurbished house, I observed two people, one with a handgun in his pocket, go to the side of my house and enter the same basement window that the earlier burglars had used to gain entry. Though I quietly dialed the state law enforcement agency, I knew it might take them an hour or more to get to me, so I slipped outside and banged a ladder on the wall to scare the intruders away. I was successful in my efforts, but simply to recall that event brings back tremors to my body. And, I can think back to my relief when law enforcement officers showed up to tell me that I was safe now.
It is difficult to begin to describe the pain that my husband and his family endured, and I with them, after the partial, butchered remains of his cousin were discovered buried in her Indiana garden. I can describe the room, its colors, the time of night, and the sounds of my husband, when I got the call from Aunt Mary saying her daughter was murdered. I can describe her gratitude that her nephew was able to find her help from our close friend and victim advocate, Betty Jane Spencer—herself, a survivor of the murders of four boys.
I have found few people who can identify with my rage at having my car broken into, not once or twice, but three times, and each time finding its stereo ripped out of it. It was, I should say, the first new car I had ever owned, a special possession. I often raise these three violations of my property in my training courses, remembering my screaming pledge at the time to lead a nationwide campaign to seek the death penalty for car stereo thieves—it is a joke that usually gets a chuckle. But the frustration behind it was, and remains, no laughing matter. It should be said, parenthetically, that research in the Netherlands indicates that providing victim services tends to reduce the inclination to victimize others. There is a part of me that intuitively believes that.
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I have not forgotten the sadness that swept over me when I learned from my aging mother that her house had been burglarized—her door broken down and her space violated. I have not forgotten, either, the law enforcement officer who told her it was not her fault.
And I cannot express the confusion, shame, and terror I experienced when a university professor I respected sexually assaulted me in his office. The police officer I approached just after I fled the building was not sympathetic, since it was my word against somebody else's and ''there was no penetration.'' When I later confronted my professor with his crime, he coldly told me my grades would suffer if I reported it to the university. I didn't expose it, my grades didn't suffer, and the next year, I concluded my studies 3,000 miles away.
These experiences have certainly shaped my views over the treatment of crime victims. But they have been reinforced by the constant exposure to the similar sufferings of people I have served. They can be plainly put in an emotional algorithm: fear and terror, anger and outrage, confusion and frustration, self-blame and guilt, shame and humiliation, and horrible, endless grief.
I can report that some of the patrol officers I encountered after reporting the crimes against me treated me very well, and some treated me very poorly. None of them, however, read me my rights—because I had none. That much will change when victims have the Constitutional right to be told of their Constitutional rights. Despite the distress endured at the hands of criminals, I know that the system can work better. Again, it is my memory which serves to tell the story.
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An elderly woman, Joan Crayten, in Multnomah County who was a victim of a horrible rape and robbery in her home told me as much over twenty years ago. She talked of the sexual assault and the loss of her safe place—her home. But, she was allowed to attend the trial of the assailant and to speak at sentencing—courtesy of the persuasiveness of the then-District Attorney, Harl Haas. She had a person at her side when she went to court, and she was able to tell the court of her shame and her ability to survive. In that day and age, I can say, she was exceptional—and lucky. Today, I can say that her experience should be unexceptional, but it is not.
Just within the past two weeks, our office received a copy of a letter published in the Sumpter (Georgia ) Free Press. It reads in part:
I write this letter as a victim, not only of the person who violated me but as a victim of a system gone bad . . . I was sexually battered here in Sumter County. I chose to press charges. Several days after the arrest and release of the accused, I received a packet from the court which included a list of my rights as defined by Georgia State law. I should have received this information from [the detective] the day I gave my statement. Georgia Law states that the investigator will provide the victim with a copy of Georgia Victims Bill of Rights in plain English upon initial contact.
My general rights as a victim, which I DO NOT have to request are as follows:
1) You, the victim, have the right to be notified of the arrest of the accused. This notification generally comes from the investigating authority. ( I was.)
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2) You, the victim, have the right to be notified of any proceedings where the release of the accused will be considered. This notification generally comes from the prosecuting attorney. (I was NOT.)
3) You, the victim, have the right to be notified of the release of the accused. The notification will come from the custodial authority. (Again, I was NOT.)
I do not write this as an attack on any one person but rather as criticism on ''the system'' or the lack thereof in this area. Victims are everywhere and we have the right to be protected under Georgia Law. How many other victims are out there who don't know what their rights are because the agencies are not working together? Lucky for me, to date, I have not been further injured by the accused. Others in this county may not be as lucky as I have been. It is time the victims of crimes be treated with respect and the laws set forth by the State of Georgia be followed. At what point are the laws of this state important to the authorities of Sumter County? Is a victim going to have to lose her life at the hand of a released attacker before something is done here in Sumter County? I hope not.
[signed] Victimized Victim
The violation of statutory rights for victims is not the remarkable thing in this letter—for the research shows they are commonplace—even in our Federal justice system. In fact, a former federal prosecutor who testified before the Senate Judiciary Committee in opposition to the proposed Amendment argued that it would jeopardize prosecutions if victims had to be consulted over a plea bargain with accused co-conspirators to the principle crimes—this despite a Federal statute long on the books that requires precisely that form of consultation.
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And the sense of outrage expressed in the letter is not remarkable. It is the natural, predictable reaction of people who know they have important rights, and who discover that their rights have been ignored. More worrisome are the reactions of the larger group of victims who yearn to be treated with dignity and respect, who were disappointed in their hopes—and who never knew they had any rights that mandate they be treated with dignity in concrete ways.
The failure of our conscientious efforts to have victim rights not only articulated as public policy but enforced as a public duty is not the only disappointment this veteran of the victims' movement has suffered. Permit me to express in personal terms the aspirations so many of us share:
If my dreams were to come true, my world would include a national hotline for all victims of crime that would provide information and referral on local victim assistance and victim compensation programs. My world would include victim service professionals who are trained and available to help all victims through criminal justice procedures. My world would include rights for victims to be informed, present and, heard in balance with rights for offenders.
For my heart is controlled by the deep alliance with the thousands of crime victims I have come to know in my twenty-five years of work in the victims' movement. Far too many of those friends and acquaintances have been made to feel contaminated, not vindicated, by the justice system. And many have fallen by the wayside as eighteen years have passed since the then-Attorney General Ken Eichenberry of Washington State first put forth the idea of a constitutional amendment.
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Edith Surgan's daughter was killed in New York in 1976. She last testified from her nursing home bed in 1983 at the National Conference on Victim Rights and the Judiciary praising the efforts of Attorney General Eichenberry and pleading for the hope of change to become a reality in the constitution. She died in July, 1984.
Leon Matthews was robbed and beaten at gunpoint in 1982. His assailant was arrested, prosecuted, and sentenced to three years in prison. Leon died in 1987 of injuries sustained in the attack. Leon was never given a chance to tell a court or a parole board what the impact of the crime had on his life. He was never asked about his financial losses or the possibility of restitution.
Ginny Mahoney's daughter was killed here in Washington, D.C., in 1997 at the Starbuck's Restaurant just north of Georgetown. Years before, Ginny threw her life into victim services and her heart into victim rights from the time she was a Victim Services Director with Baltimore County and later with the U.S. Attorney's Office. She knew the need for victims to be a part of the process and the need for victims to have critical information about what was going on in the system. She died this last December, still looking forward to a day of justice for her daughter.
Aunt Mary and Uncle Bernie, who survived their daughter Ellie, gave me encouragement to speak out on behalf of victim rights whenever possible. Aunt Mary's legacy, in one sense, to the victims' movement was her phrase which I have echoed on her behalf many times, ''Before Ellie was killed, I knew there was good and bad in the world, but I didn't really know there was good and evil—and that was a lesson I never had to learn.'' Aunt Mary died last year. Uncle Bernie died this year.
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Ross and Betty Parks were parents of a murdered daughter, Betsy. The Parks waited seven years for a murder trial. As Betty Parks explained, ''It was—six and one half years after Betsy died when Gary Coleman was extradited from a prison in Georgia to North Carolina and charged with her murder. For the next fourteen months he was able to delay going to trial with motion after motion—thirty-one of them at one point.'' Betty died last summer.
I grew to know these doubly-wronged victims of violent crime, and the kind of maltreatment they received has been repeated to me hundreds of times by victims I have met in my travels. The problems addressed by the resolution before you are persistent and pervasive.
From the evening of April 13, 1985, to this day, there has been a nationwide coalition of victim advocates committed to the passage and ratification of a U.S. Constitutional Amendment for victims' rights. In many respects, H. J. Res. 64 goes farther than the proposal we originally backed, the one recommended by 1982 Presidential Task Force on Victims of Crime.
Our coalition—the National Victims Constitutional Amendment Network (NVCAN)—can claim some responsibility for expanding the breadth of the earlier proposal. Our members held several retreats to examine anew the core values deemed worthy of constitutional protection, and we ended up going beyond our old formula of giving victims the right to be informed of, present, and heard at every critical proceeding. That more expansive list of values—including a right to know their victims' rights, standing to assert them (at least prospectively), a right to know of one's offender's release or escape, to have considered their interests in the pace of prosecutions and appeals, to restitution, and to strong authority to craft legislation to enforce the rights—all these, after Congressional fine-tuning, remain intact.
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Moreover, while we who are active in NVCAN are fully supportive of S. J. Res. 3, the counterpart resolution now before the Senate, in one respect, H. J. Res. 64 is, we believe, an improvement. For it authorizes Congress to spread the mantle of Constitutional protection to victims of property crime as well as to those who suffer criminal violence. As one who has been subjected to both, I need hardly tell you that the consequences are often equally painful, and the justice issues they raise for the victim are usually identical.
Appended to my testimony are some thoughts expressed by my husband (and Deputy Director), John Stein, written some ten years after he attended the trial of the man who killed his cousin, a trial in which his family asked him to speak for them at the sentencing hearing. In it, he expresses some personal satisfaction over the way his family was treated in the trial of his cousin's murdered. But he also speaks of his personal dismay that not all victims are treated with such respect—and that the victims least likely to be accorded their rights are racial minorities.
John's personal discouragement is felt by most of us in the victims' movement. As a nation, we will not provide equal protection of the law—at least, not of victim rights law—until we make its application an American birthright. Until that happens, it will not just be racial and economic minorities whose claims to be treated to dignity will be unheeded in the justice system, for we see the systemic indifference imposed on victims who are also people with disabilities, or who are elderly.
So the resolution before you, when favorably acted on by the Congress and the states, will finally answer the bitter complaint voiced by a victim years ago: ''All we ask is to be treated just like criminals.''
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Thank you for this opportunity to speak to you in behalf of NOVA, of the victims it represents, and of justice.
ADDENDUM: EXCERPTS FROM AN UNPUBLISHED PAPER WRITTEN BY NOVA DEPUTY DIRECTOR, JOHN H. STEIN:
''I am . . .''
''I am . . .''
''. . . somebody!''
''. . . somebody!''
Anyone who has seen the Reverend Jesse Jackson preach his interactive, secular sermons with African-American youth has been witness to hand-to-hand combat with despair. If anyone doubts that these young people feel themselves relegated to the fetid backwaters of society, let that skeptic try to explain the fervor with which they merely assert their human existence.
The sense of alienation Reverend Jackson seeks to lift from the shoulders of his young parishioners is one which millions of crime victims have come to experience. Of all the losses victims bear, perhaps none is more lasting or harmful to more victims than the felt loss of autonomy, of control over their lives, of connection to the social order.
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Crime victims have ample reason to feel a certain kinship with racial minorities—particularly African-American youth of the inner city—partly because of a shared sense of powerlessness, and often because they are African-American youth of the inner city. We often lament that they have the highest arrest rates for violent crime among our various subpopulations, but rarely remember that their victimization rates are also the highest.
Some people like me have a passion for victim rights because they were fully accorded to me when I needed them—and they made a positive difference in my family's distressful reconstruction. But the victim rights revolution is a spotty one. It is not reaching everyone, whatever the laws on the books may say. Those most likely to be left behind are lower income Americans and racial minorities.
These are the findings of extensive research conducted by the National Victim Center (NVC) in four states, two with relatively weak statutory protections for victims, two with strong ones, backed up by state victim rights amendments. The overall disparities between the two groups of states are telling. Thus, for example, only 42 percent of the victims in the ''weak'' states were informed of their right to submit a victim impact statement at sentencing, whereas 75 percent of the victims in ''strong'' were so informed. This suggests that state constitutional amendments make a very significant difference—but not big enough—not by a wide margin.
And especially not for non-whites. Even the ''strong'' states displayed weaknesses in honoring certain rights to minority victims. While 80 percent of white victims whose offenders were up for parole were told of their right to speak at the parole hearing, only 41 percent of the non-white victims were so informed. Sixty-three percent of white victims were informed of a possible plea agreement; only 43 percent of non-whites were. The figures for information about a suspect's bail release were 63 and 43 percent respectively.
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Not surprisingly, the levels of dissatisfaction with the justice process had a pronounced racial characteristic, most notably in the weak states, where only 38 percent of white victims were dissatisfied with the opportunities to be heard at pleas and dismissals, a rate that rose to 62 percent among racial minorities. Comparable dissatisfaction rates over sentencing were 48 and 70 percent respectively.
We have long had a saying in the victims' movement: ''Justice for all—even the victim.'' We are slowly achieving that ideal, at least for people whose demographic characteristics match mine. For those of us who care about all victims, especially those most likely to become victims by virtue of their race and income, our ''progress'' is bittersweet indeed.
Mr. CANADY. Thank you, Ms. Young.
Ms. Long.
STATEMENT OF CHRISTINE LONG, MEMBER OF THE BOARD OF DIRECTORS AND CHAIRPERSON OF VICTIMS' RIGHTS COMMITTEE, LAW ENFORCEMENT ALLIANCE OF AMERICA, INC., FALLS CHURCH, VA
Ms. LONG. Good afternoon, Mr. Chairman and members of the committee. I want to thank you for allowing me to appear today and I am honored and grateful for the opportunity.
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My name is Christine Long. I am from Columbus, Ohio. I am the past Second Vice President and currently a director of the Law Enforcement Alliance of America, which is the Nation's largest coalition of law enforcement officers, crime victims and citizens. Additionally, I am LEAA's Victims' Rights Committee chair and have been working with LEAA for nearly a decade to secure the rights of the crime victims in this country.
In many ways the proposed constitutional amendment before you today is the fulfillment of the hopes and dreams of victims across this vast Nation. For me, it is a validation of a 12-year battle to secure the rights of victims of crime. My crusade began in 1988 when I was the victim of a vicious crime committed by a serial rapist. And today, I speak for LEAA's more than 65,000 members and supporters and from my own personal perspective as a victim of a violent crime and a fervent activist for the rights of all victims.
In America today, where ''justice for all'' is a cornerstone upon which our great country was built, justice is not in any way, shape or form applied equally to all its citizens. The Constitution repeatedly outlines the rights of the accused but neglects to make one mention of crime victims.
It is important to understand why this is the case and why an amendment is necessary. The Constitution was written when the colonists were breaking away from British rule. Wanting to ensure that the travesties of the past did not reoccur, progressive laws about search and seizure, court representation, due process and self-incrimination were created.
And at this time, as we have heard earlier today, victims were directly involved in the system. Our Forefathers could never have envisioned a time when victims of crime would be neglected. Then, the State assumed responsibility for prosecution and became the ''injured party.'' Subsequently, victims became excluded from participation in the process.
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Fortunately for victims, President Reagan commissioned the Task Force on Victims of Crime in 1982. For the first time there was national recognition for victims of crime. The task force met with more than 1,000 victims and came with 68 recommendations, including an amendment to the U.S. Constitution guaranteeing the rights of crime victims. This laid the groundwork for the fight ahead and since then, over 30 States have adopted their own constitutional amendments.
A Federal constitutional change is necessary because if the defendants' rights are guaranteed under the Constitution and victims' rights are only specified in statutes, the rights of the accused will always prevail. Victims will always be seen by our justice system as second class citizens. The Constitution is our supreme law of the land and this is properly where our fundamental rights should be guaranteed.
H.J. Res. 64, the Victims' Rights Amendment, brings victims of crime one step closer to fair treatment. Today, our justice system renders crime victims powerless, voiceless and demoralized, and this includes the most overlooked segment of crime victims—our law enforcement officers. Every day, law enforcement officers put themselves in harm's way to protect the citizens of this country and tens of thousands are assaulted every year and dozens more are killed. Cops who become victims would also be afforded the basic rights outlined in this constitutional amendment.
Victims of crime should have the right of reasonable notice of proceedings related to the crime he or she suffered. And, victims deserve notice of their assailant's escape or release from custody. No reasonable person should object to giving crime victims a voice at pardon and parole proceedings and no one should deny a crime victim the right to a speedy trial when that same right is guaranteed to the accused. Make no mistake about it; defendants are the only ones who benefit when trials are dragged out.
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In 1988, I was raped by a brutal attacker named Robert Blankenship, who preyed upon women. Even after being convicted of rape and serving time, he raped again. I have no reason to believe that he will reform his life of sexual violence when he is again released back into society.
This attacker invaded my most personal and sacred space when he broke into my home and brutally raped me, destroying every shred of my dignity and my notions of personal security. My subsequent experience with the criminal justice system left me feeling violated over and over again by placing greater value on the rights of the accused versus my rights. There were needless delays—three continuances.
During this time, for the very first one, I figured I was going to get a trial. I deserved a trial. There were five victims. So to get prepared for this, I went to a victim's self-defense group and I practiced telling my story at these different group meetings so I was prepared for my time at the trial, which never did occur. I never got a trial. But each time it was scheduled, the day before or the day of it was canceled and put back another month or more. I cannot explain to you what that does to a victim but it definitely helps the defendant because some of these victims in this group of five were ready to pull out and say, ''Never mind. Just forget it.'' That is what that does.
The defendant had DNA done and it was proved that he was the person that raped me and at that point, I asked for him to have an AIDS test. Obviously in this resolution this is not one of the points, but at that point in Ohio, he could not be forced—I could not compel him to have an AIDS test, so I had to wait 3 months before I could have one myself.
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I was excluded from involvement in the plea bargaining hearing. I was just told he plea-bargained; come down for the sentencing. That is what happened to me. And then in victim's compensation afterwards I had counseling for several years. I applied for victim's compensation three different times. Each time it had to be investigated to make sure I was, in fact, a victim. It took 3 months each time that I applied to get any compensation.
I was treated not as a victim but instead, as a mere witness, as if I had only seen from afar the inhumane brutality inflicted against me. The system saw me as a piece of evidence like a fingerprint or a photograph, but not as a feeling, thinking human being.
As Reagan's 1982 task force reported, ''The criminal justice system is absolutely dependent upon the cooperation of crime victims to report and to testify. Without their help, the system cannot hold criminals accountable and stem the tide of future crime.''
In the 18 years that we have been discussing this issue, 1.8 million violent crimes have occurred each year—in other words, 32.4 million lives have been ravished at the hands of violent offenders. How can we allow this injustice to continue? We must stop now.
My ordeal impressed upon me the total lack of crime victims' rights. I had no right to be apprised of the plea bargain associated with my assailant and I had no right to voice my objections at subsequent parole hearings.
On behalf of LEAA and myself, I have traveled throughout the Nation on behalf of violent crime victims, trying to bring attention to the fact that as a society and as a Nation, we must address the issues of victims of crime and their rights. We must afford equal treatment and equal rights for victims under the Constitution.
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I fully understand the need for a defendant's right to due process and a victim's rights amendment is not intended to infringe on a defendant's rights in any way. We, the victims, are only asking to be treated equally, to be allowed involvement in the process, and to be allowed the same consideration under the law.
I have testified before Congress in the past voicing my support for a victims' rights amendment. In fact, I testified before the Committee on the Judiciary in 1996 in favor of this joint resolution proposing a constitutional amendment to establish and protect the rights of crime victims.
Today I am here again speaking for all victims, fighting the same fight. And I will say again today what I said in '96. Victims of crime, from robbery to the most brutal and dehumanizing crimes, have no Federal guarantee that we will ever receive justice, let alone fair and equal treatment. This is a sad truth that must be changed.
For 12 years I have made it my life's goal to fight for fair treatment of crime victims. We, the victims, are asking to be treated with the same respect, the same dignity due to any human being, any American citizen. I believe this House Resolution 64, Crime Victims' Rights Constitutional Amendment does that, and I am hoping for your support in passage. Thank you very much for having me today.
[The prepared statement of Ms. Long follows:]
PREPARED STATEMENT OF CHRISTINE LONG, MEMBER OF THE BOARD OF DIRECTORS AND CHAIRPERSON OF VICTIMS' RIGHTS COMMITTEE, LAW ENFORCEMENT ALLIANCE OF AMERICA, INC., FALLS CHURCH, VA
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Mr. Chairman, members of the subcommittee, I want to thank you for allowing me to appear before you today. I am honored and grateful for this opportunity.
My name is Christine Long. I am from Columbus, Ohio. I am the past Second Vice President and currently a Director of the Law Enforcement Alliance of America (LEAA), the nation's largest coalition of law enforcement officers, crime victims and citizens. Additionally, I am LEAA's Victims' Rights Committee Chair and have been working with LEAA for nearly a decade to secure the rights of crime victims in this country.
In many ways the proposed constitutional amendment before you today is the fulfillment of the hopes and dreams of victims across this vast nation. For me, it is a validation of a twelve-year battle to secure rights of victims of crime. My crusade began in 1988 when I was the victim of a vicious crime committed by a serial rapist. And today I speak for LEAA's more than 65,000 members and supporters and from my own personal perspective as a victim of violent crime and a fervent activist for the rights of all victims.
In America today, where ''justice for all'' is a cornerstone upon which our great country was built, justice is not in any way, shape or form applied equally to all its citizens. The Constitution repeatedly outlines the rights of the accused but neglects to make one mention of crime victims.
It's important to understand why this is the case and why an amendment is necessary. The Constitution was written when the colonists were breaking away from the British rule. Wanting to ensure that the travesties of the past did not reoccur, progressive laws about search and seizure, court representation, due process and self-incrimination were created. At this time, victims were directly involved in the system. Our Forefathers could never have envisioned a time when victims of crime would be neglected. Then, the state assumed responsibility of prosecution and became the ''injured party.'' Subsequently, victims became excluded from participation in the process.
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Fortunately for victims, President Reagan commissioned the Task Force on Victims of Crime in 1982. For the first time, there was national recognition for victims of crime. The task force met with more than 1,000 victims and came back with 68 recommendations, including an amendment to the U.S. Constitution, guaranteeing the rights of crime victims. This laid the groundwork for the fight ahead and since then, over 30 states have adopted their own victims' constitutional amendments.
A federal constitutional change is necessary because if defendants' rights are guaranteed under the Constitution and victims' rights are only specified in statutes, the right of the accused will always prevail—victims will always be seen by our justice system as second class-citizens. The Constitution is our supreme law of the land and this is properly where our fundamental rights should guaranteed.
House Joint Resolution 64, the Victims' Rights Amendment, brings victims of crime one step closer to fair treatment. Today, our justice system renders crime victims powerless, voiceless and demoralized. And this includes the most overlooked segment of crime victims—law enforcement officers. Every day law enforcement officers put themselves in harm's way to protect the citizens of this country and tens of thousands are assaulted every year and dozens more are killed. Cops, who become victims, would also be afforded the basic rights outlined in this constitutional amendment.
Victims of crime should have the right of reasonable notice of public proceedings related to the crime he or she suffered. And, victims deserve notice of their assailant's escape or release from custody. No reasonable person should object to giving crime victims a voice at pardon and parole proceedings and no one should deny a crime victim the right to a speedy trial when that same right is granted to the accused. Make no mistake about it, defendants are the ONLY ones who benefit when trials are dragged out.
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In 1988, I was raped by a brutal attacker named Robert Blankenship, who preyed upon women. Even after being convicted of rape and serving time, he raped again. I have no reason to believe that he will reform his life of sexual violence when he is again released back into society.
This attacker invaded my most personal and sacred space when he broke into my home and brutally raped me, destroying every shred of my dignity and my notions of personal security. My subsequent experience with the criminal justice system left me feeling violated again by placing greater value on the rights of the accused versus my rights. I was treated not as a victim but instead as a mere witness, as if I had only seen from afar the inhumane brutality inflicted against me.
The system saw me as a piece of evidence, like a fingerprint or a photograph, not as a feeling, thinking human being. As Reagan's 1982 Task Force reported, ''The criminal justice system is absolutely dependent upon the cooperation of crime victims to report and to testify. Without their help, the system cannot hold criminals accountable and stem the tide of future crime.''
In the 18 years that we have been discussing this issue, 1.8 million violent crimes have occurred each year—in other words, a total of 32.4 million lives have been ravaged at the hands of violent offenders. How can we allow this injustice to continue? We must put a stop to this now!
My ordeal impressed upon me the total lack of crime victims' rights. I had no right to be apprised of the plea bargain negotiated with my assailant. And I had no right to voice my objections at subsequent parole hearings.
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On behalf of LEAA and myself, I've traveled throughout the nation on behalf of crime victims, trying to bring attention to the fact that as a society and as a nation, we must address the issue of victims' rights. We must afford equal treatment and equal rights for victims under the Constitution of the United States. I fully understand the need for a defendant's right to due process. A victims' rights amendment is not intended to infringe on a defendant's rights in any way. We, the victims, are only asking to be treated equally, to be allowed involvement in the process and to be allowed the same consideration under the law.
I have done countless radio, television and print news interviews, speaking on behalf of other victims of crime and I have spoken with countless other victims across the nation; I have even testified before Congress in the past, voicing my support for a victims' rights amendment. In fact, I testified before the Committee on the Judiciary in 1996 in favor of a joint resolution proposing a constitutional amendment to establish and protect the rights of crime victims.
Today, I am here again, speaking for all victims, fighting the same fight. I'll say again today what I said in 1996: victims of crime—from robbery to the most brutal and dehumanizing crimes—have no federal guarantee that we will ever receive justice, let alone fair and equal treatment under the law. This is a sad truth that must be changed.
For twelve years I've made it my life's goal to fight for fair treatment of crime victims. We, the victims, are asking to be treated with the same respect, with the same dignity due any human being, any American citizen. I believe that House Resolution 64, the Crime Victims' Rights Constitutional Amendment, does that. And I thank you for it.
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Mr. CANADY. Thank you, Ms. Long.
Mr. Welch.
STATEMENT OF EMMETT E. (BUD) WELCH, MEMBER, MURDER VICTIMS' FAMILIES FOR RECONCILIATION, OKLAHOMA CITY, OK
Mr. WELCH. Thank you. Good afternoon, Chairman Canady, Ranking Member Mr. Watt, and members of the committee.
I want to tell you a little about myself. I am the third oldest of eight children, raised on a dairy farm in Central Oklahoma, and I have owned and operated the Texaco service station for the last 35 years in Oklahoma City.
I am testifying today to urge you to oppose H.J. Res. 64, the Victims' Rights Constitutional Amendment. I know that many people believe that a constitutional amendment is something that crime victims want. However, I want you to know that as a crime victim, I do not want the Constitution amended. Having gone through the ordeal of witnessing a major criminal case, I believe more strongly than ever in the need to protect the Constitution and the rights of the accused. I believe that if this constitutional amendment had been in place, it would have harmed rather than helped the prosecution of the Oklahoma City bombing case.
I lost my daughter Julie in the Oklahoma City bombing. Julie was an amazing young woman. Of course, I am her father, so I am biased, but I believe other people thought she was a special person, too. At the time of her death, she was working at the Federal Building as a translator for the Social Security Administration. Julie spoke five languages and used her language abilities to help disadvantaged people. On the morning of the bombing she had gone into the lobby to meet her clients. Julie always did things like that, making the extra effort to make her clients feel at ease. Ironically, had she stayed in her office instead of meeting the clients in the lobby, she would have survived the bombing.
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Julie was my best friend and my heart has been sadly broken since her death. I was so angry after she was killed that I wanted to kill McVeigh and Nichols immediately, without a trial. I probably would have done anything myself to have killed them. I considered that I was in a state of temporary insanity immediately after her death. When a victim's family member is in that state of mind, they have no business involved in the law-making process or the prosecution process of the accused.
It is because I was so crazy with grief that I oppose the Victims' Rights Amendment. It would give the victims right to give input in the criminal case even before a conviction. I do not think crime victims should have a constitutional right to give input into bail decisions and plea agreements. I think crime victims are too emotionally involved in the case and will not make the best decisions about how to handle the case.
In my own experience, the government did an excellent job prosecuting the Oklahoma City bombing case. Beth Wilkinson, one of the prosecutors, opposes a victims' rights constitutional amendment because she believes it would have compromised the government's prosecution of the case.
The example she gives is that at one point in the case, the government entered into a plea agreement with a witness named Michael Fortier. The government believed that Fortier's testimony was crucial for it to prove its case against McVeigh and Nichols. However, many of the victims opposed this plea agreement. Had this constitutional amendment been in place, it would have allowed for every one of the 168 victims' family members to speak about the plea agreement. Ms. Wilkinson feared that if many of the victims had publicly opposed the plea agreement with Fortier then the judge might not have accepted it, or he might have required the government to explain why it was entering into the agreement. Without Fortier's testimony, the government could not have proven its case. It would not have helped me or any of the other Oklahoma City bombing victims if our participation in the case kept the government from doing its job.
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Another way that the government's case could have been compromised is the provision granting victims ''consideration for the interest of the victim in a trial free from unreasonable delay.'' This will require the judge to consider the victim's interest in scheduling trials. If a victim wants a speedy resolution, it could force the government to go to trial before it is ready. Likewise, it might force the defendant to go to trial before his or her attorney has had adequate time to prepare.
From a practical point of view, it would have been impossible to accommodate all the victims in a case like Oklahoma City. The government could not possibly have kept all 168 victims and their representatives informed about every public hearing.
Also, it is unclear who is entitled to constitutional rights. For example, in the case of Julie's murder, would I have been entitled to constitutional rights? Would her mother, my ex-wife, have been entitled, or would her fiancé have been entitled? This might not be a problem if all family members have the same idea about how the criminal case should be handled, but what if we do not agree? Should all three of us have the opportunity to give our differing opinions in court? If not, who should be excluded?
There is also likely to be a conflict when there are multiple victims. Victims do not always agree on the best way a case should be handled. The prosecution would be required to try to weigh the opinions of different victims, leaving those victims who the prosecution does not agree with feeling left out of the process.
I also worry that this amendment will undermine the rights of defendants. The amendment prematurely decides who is a victim. The point of a criminal trial is to determine whether a crime has occurred and who the victim is. The defendant is presumed to be innocent. By granting rights to a victim before there has been a conviction, a determination has already been made that the defendant is guilty of the crime.
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Another way that a defendant's right to a fair trial could be harmed is the provision that gives crime victims a constitutional right to be present in all public proceedings, even if this would interfere with the fairness of the trial. Take, for instance, situations where a victim is also a witness. Usually witnesses in criminal cases do not watch the trial because of the danger that their testimony will be influenced by hearing the testimony of other witnesses. Under the amendment, however, the victim witness could not be excluded from the courtroom while the other witnesses testify. Whether consciously or unconsciously, the victim/witness could easily tailor his or her testimony to fit the testimony of the other witnesses. Needless to say, the reliability and accuracy of this testimony would be questionable.
Furthermore, it would be difficult for defense counsel to establish inconsistencies between witnesses. I would not have been happy had I believed that McVeigh and Nichols did not get a fair trial or worse, that the government had convicted the wrong people.
The proposed amendment appears to offer a rather limited scope of possible remedies to those victims who believe their rights were violated. What if one of the 168 victims of the Oklahoma City bombing believed that their rights had been violated? What would be the remedy? Could they sue the prosecutor or judge to have the trial interrupted? Can they sue for monetary damages? If they do not have any remedies, what is the value of a constitutional right? If Congress intends to create a constitutional right without a remedy, the amendment is, at best, symbolic. At worst, however, it undermines the constitutional rights and protections without providing any meaningful improvement in the victim's role in the criminal justice system.
I believe that there are other ways that Congress could help victims without amending the Constitution. Although I feel that the government did an excellent job providing support to the victims, there are many places in the country that do not have the resources that victims need, like counseling and financial assistance. This could help victims without the risk of hurting defendants and compromising our Constitution.
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I want to thank you very much for hearing my testimony and please do not change the Constitution in Julie Marie Welch's name. Thank you.
[The prepared statement of Mr. Welch follows:]
PREPARED STATEMENT OF EMMETT E. (BUD) WELCH, MEMBER, MURDER VICTIMS' FAMILIES FOR RECONCILIATION, OKLAHOMA CITY, OK
Good Morning Chairman Canady, Ranking Member Mr. Watt and Members of the Committee.
I am testifying today to urge you to oppose HR 64, the Victims' Rights Constitutional Amendment. I know that many people believe that a constitutional amendment is something that crime victims want. However, I want you to know that as a crime victim, I do not want the Constitution amended. Having gone through the ordeal of witnessing a major criminal case I believe more strongly than ever in the need to protect the constitution and the rights of the accused. I believe that if this constitutional amendment had been in place it would have harmed, rather than helped, the prosecution of the Oklahoma City Bombing case.
I lost my daughter Julie in the Oklahoma City bombing. Julie was an amazing young woman. Of course, I am her father, so I am biased, but I believe other people thought she was a special person, too. At the time of her death, she was working at the Federal Building as a translator for the Social Security Administration. She spoke 5 languages and used her language abilities to help disadvantaged people. On the morning of the bombing, she had gone into the lobby to meet with her clients. Julie always did things like that—making the extra effort to make her clients feel at ease. Ironically, had she stayed in her office instead of meeting the clients in the lobby, she would have survived the bombing.
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Julie was my best friend and my heart has been absolutely broken since her death. I was so angry after she was killed that I wanted McVeigh and Nichols killed without a trial. I probably would have done it myself if I could have. I consider that I was in a state of temporary insanity immediately after her death. It is because I was so crazy with grief that I oppose the Victims' Rights Amendment. It would give victims the right to give input in the criminal case even before a conviction. I do not think crime victims should have a constitutional right to give input into bail decisions and plea agreements. I think crime victims are too emotionally involved in the case and will not make the best decisions about how to handle the case.
In my own experience, the government did an excellent job prosecuting the Oklahoma City Bombing case. Beth Wilkinson, one of the prosecutors, opposes a Victim's Rights Constitutional Amendment because she believes it would have compromised the government's prosecution of the case. The example she gives is that at one point in the case, the government entered into a plea agreement with a witness named Michael Fortier. The government believed that Fortier's testimony was crucial for it to prove its case against McVeigh and Nichols. However, many of the victims opposed this plea agreement. Had this constitutional amendment been in place it would have allowed for every one of the 168 victims to speak about the plea agreement. Ms. Wilkinson feared that if many of the victims had publicly opposed the plea agreement with Fortier then the judge might not have accepted it, or he might have required the government to explain why it was entering into the agreement. Without Fortier's testimony the government could not have proven its case. It would not have helped me or any of the other Oklahoma City Bombing victims if our participation in the case kept the government from doing its job.
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Another way that the government's case could have been compromised is the provision granting victims ''consideration for the interest of the victim in a trial free from unreasonable delay''. This will require the judge to consider the victim's interests in scheduling trials. If a victim wants a speedy resolution it could force the government to go to trial before it is ready. Likewise, it might force the defendant to go to trial before his or her attorney has had adequate time to prepare.
From a practical point of view, it would have been impossible to accommodate all of the victims in a case like Oklahoma City. The government could not possibly have kept all 168 victims and their representatives informed about every public hearing. Also it is unclear who is entitled to constitutional rights. For example, in the case of Julie's murder would I have been entitled to constitutional rights, would her mother, my ex-wife have been entitled, or would her fiance have been entitled? This might not be a problem if all family members have the same idea about how the criminal case should be handled, but what if we don't agree? Should all three of us have the opportunity to give our differing opinions in court? If not, who should be excluded?
There is also likely to be conflict when there are multiple victims. Victims do not always agree on the best way a case should be handled. The prosecution would be required to try to weigh the opinions of different victims, leaving those victims who the prosecution does not agree with feeling left out of the process.
I also worry that this amendment will lead to more wrongful convictions. The more emotional the trial becomes, the more likely it is to be unfair. The point of a trial is to find out what happened. It should be about facts, not fiction. Defendants are presumed innocent. Giving ''rights'' to a ''victim'' before the defendant is convicted, is like putting the cart before the horse.
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Another way the Amendment will harm a defendant's right to a fair trial is by granting victims the constitutional right to be ''present in all public proceedings'' even if their presence would bias the trial. Take, for instance, situations where a victim is also a witness. Usually witnesses in criminal cases are not allowed to be present during the entire trial because of the danger that their testimony will be influenced by hearing the testimony of other witnesses. Under the Amendment, however, the victim/witness could not be excluded from the courtroom. Whether consciously or unconsciously, the victim/witness could easily tailor his or her testimony to fit the testimony of the other witnesses. Needless to say, the reliability and accuracy of this testimony would be questionable. Furthermore, it would be difficult for defense counsel to establish inconsistencies between witnesses. I would not have been happy had I believed that McVeigh and Nichols did not get fair trials or worse, that the government had convicted the wrong people.
The proposed amendment appears to offer a rather limited scope of possible remedies for those victims who believe their rights were violated. What if one of the 168 victims of the Oklahoma City Bombing believed their rights had been violated? What would the remedy be? Could they sue the prosecutor or judge to have the trial interrupted? Can they sue for monetary damages? If they do not have any remedies, what is the value of a constitutional right? If Congress intends to create a constitutional right without a remedy, the amendment is at best symbolic. At worst, however, it undermines constitutional rights and protections, without providing any meaningful improvement in the victim's role in the criminal justice system.
I believe that there are other ways that Congress could help victims without amending the constitution. Although I feel that the government did an excellent job providing support to the victims of the Oklahoma City Bombing, there are many places in the country that don't have the resources that victims need like counseling and financial assistance. This could help victims without the risk of hurting defendants and compromising our Constitution.
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Mr. CANADY. Thank you, Mr. Welch.
Judge Sullivan.
STATEMENT OF EMMETT G. SULLIVAN, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, MEMBER OF THE COMMITTEE ON CRIMINAL LAW AND CHAIRMAN OF THE SUBCOMMITTEE ON LEGISLATION, JUDICIAL CONFERENCE OF THE UNITED STATES, WASHINGTON, DC
Mr. SULLIVAN. Thank you, Mr. Chairman. Mr. Chairman and members of the committee, my name is Emmet G. Sullivan. I am a United States District Judge from the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I chair their committee's Legislative Subcommittee.
On behalf of the Judicial Conference, I appreciate the invitation to testify today. 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 by balancing the need to ensure a fair trial for persons accused of a crime but who are presumed to be innocent. We hope that the testimony we provide here today is useful to you in this regard.
In March 1997, the Judicial Conference resolved to take no position at that time on the enactment of a Victims' Rights Amendment. The Conference did direct its Criminal Law Committee to inform Congress of how the amendment may affect the administration and cost of operating the Federal courts. In the limited time I have here this morning, I will focus on three of our primary concerns with the proposal: one, the kinds of crimes and victims to which the amendment will apply; two, the serious implications that enforcement of the amendment has for our Federal system; and three, the need for exceptions necessitated by the administration of justice.
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Under H.J. Res. 64, the proposed amendment applies to all felony offenses and all violent misdemeanors. This comprises the vast majority of cases in the Federal criminal justice system. The proposal leaves some very fundamental issues totally unresolved. One key issue is the question of what persons will qualify as a victim. Must a person suffer direct physical harm or is it sufficient if they suffer pecuniary loss alone? What if the person alleges solely emotional harm? Are family members of an injured person also victims? Business partners, employers, employees?
The effect of a broad definition of victim becomes important in light of the expansive classes of crimes to which the amendment applies. For example, many districts in our country are currently handling large numbers of telemarketing fraud cases, some involving thousands of victims. 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.
This proposed amendment would also significantly affect our system of federalism. A Federal constitutional right is necessarily enforceable in Federal court. Victims will seek injunctive relief against State officials for violation of their new constitutional rights. Such claims will almost inevitably cause significant Federal court supervision of State criminal justice. 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.
Congress should also 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.
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The first category relates to the very real practicalities of the administration of justice. An example would be an action involving exceptionally large numbers of victims wishing to attend the proceedings and overwhelming any available courtroom or other suitable location. The second category of cases are those in which the rights of victims 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.
If Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach, as opposed to a constitutional amendment. A statutory approach would allow the Federal 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.
H.J. Res. 64 represents a significant change in our criminal justice system, bitterly realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. It could conceivably take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process and, in addition, could take effect immediately, avoiding the lengthy, ponderous and uncertain ratification process required under Article 5.
This morning we have heard of a number of situations and cases involving proceedings in which panelists have complained that the system did not work, that the victims were not heard. Let me just share with you two instances, two recent experiences in my court, in which the system worked significantly on the part of victims.
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One case involved a man who pled guilty to numerous counts of fraud and money-laundering. There were in excess of 25 victims. I wanted to hear from the victims. I wanted to hear about their financial losses. I wanted to hear about their emotional losses. I wanted to hear about the impact of this criminal activity on their lives.
The victims came to court and I listened very intently to their losses and I heard the stories of the false hopes given to the victims by the defendant and the victims' shattered dreams when the false hopes proved indeed to be false. And I was persuaded by the very compelling stories that all the victims had to share with me.
During those proceedings I happened to look at the defendant, who was laughing. I did not realize he had been laughing at the stories of the victims but that instance, that insensitive conduct on the part of the defendant had a significant impact on the outcome of the proceedings because I was able to not give that defendant the three-level adjustment for acceptance of responsibility because I found that his conduct in court, in laughing at the victims, was totally not consistent with an acceptance of responsibility. So the appearance and participation of those victims resulted in an additional 30-month period of incarceration for that defendant. The system worked.
In another situation a defendant pled guilty not too long ago to embezzling in excess of $3 million from his employer. The victims had no idea of the extent of the loss and had to hire an accountant and had to retain the services of an attorney at significant expense, in excess of $100,000. That sum of money was tacked onto an order of restitution that that defendant has to repay.
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Now I am in the process of writing an opinion and I plan to publish that so that judges across the country can use that as an example. They can add that to their arsenal of tools available to ensure that we are appropriately dealing with the losses that victims sustain.
But if Congress believes that we are not doing enough and if Congress believes that additional measures should be taken, we respectfully suggest that the appropriate way to proceed would be to enact a statute. Modify title XVIII of the United States Code. You will get the attention of the judiciary because when you modify title XVIII, you are speaking to us and when Congress speaks, we listen.
Thank you for the opportunity to appear today and I would be most happy to answer any questions that you have.
[The prepared statement of Judge Sullivan follows:]
PREPARED STATEMENT OF EMMETT G. SULLIVAN, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, MEMBER OF THE COMMITTEE ON CRIMINAL LAW AND CHAIRMAN OF THE SUBCOMMITTEE ON LEGISLATION, JUDICIAL CONFERENCE OF THE UNITED STATES, WASHINGTON, DC
Mr. Chairman, and Members of the Committee, my name is Emmet G. Sullivan. I am a United States District Judge for the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I chair that Committee's Legislative Subcommittee.
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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 H.J. Res. 64, proposing an amendment to the Constitution of the United States to protect the rights of crime victims. I will also discuss the Judicial Conference's 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.
H.J. RES. 64
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.
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While H.J. Res. 64 appears to have less potential adverse impact on the federal judiciary than some previous amendment proposals, there remain a number of fundamental concerns. Among the most important of these are the kinds of crimes and victims 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. 64, 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.
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, more than 58,000 criminal cases were commenced in the federal courts during Fiscal Year 1999. Of this total, nearly 47,000 were felonies. Our statistics do not readily indicate how many of the more than 11,000 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 14.6 million criminal actions were filed during 1998.
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Closely associated with this issue is the question of what classes of persons will qualify as a ''victim.'' We note that the proposed amendment includes no definition of victim. Must a person suffer direct physical harm to qualify as a victim? Or is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? What about close friends, employers, or business partners?
Suppose more than 1,000 people are defrauded as part of a fraudulent securities scheme, but the prosecutor chooses to prosecute just ten of these cases. Are the other 990 defrauded persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just ten of the cases. Are the other 990 defrauded persons victims under these circumstances? Will our answer affect a prosecutor's ability to obtain plea agreements from defendants?
The effect of a potentially expansive 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. 64 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 potential extensive reach of this proposal and the inevitable costs and impact that it will have upon our criminal justice system. At a time when Congress is increasingly urging budgetary restraint, you 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.
Enforcement
The proposed amendment states that nothing ''in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling.'' Unlike some previously introduced victims' rights constitutional amendment proposals, H.J. Res. 64 does not stipulate that a victim has no grounds to challenge a charging decision. This addition would be a significant and valid limitation. Allowing victims to challenge a prosecutor's charging decision could result in significant operational problems. In addition, while the limitation on invalidating any rulings appears to apply to sentencing, some previous versions of the amendment specifically stated that the amendment would provide a victim no grounds to challenge a conviction or a sentence already imposed on a defendant. This, too, would be a valid limitation. Allowing victims to challenge sentences would erode the fundamental principle of finality of sentencing.
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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.
Federalism
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.
Administration of Justice Exception
H.J. Res. 64 permits Congress to create exceptions to the proposed amendment ''when necessary to achieve a compelling interest.'' While this is a very valid and useful provision, Congress 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.
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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 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 constitution, by the addition of a phrase allowing sequestration when ''necessary to a fair trial for the defendant.'' 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.''
Speedy Trial Considerations
The proposed amendment includes a victim's right to ''consideration of the interest of the victim that any trial be free from unreasonable delay.'' 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. §3161–3173, 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.
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How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? Such a right 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?
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.
Notice
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.
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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. 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. 64 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.
In closing, I would like to say that 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.
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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.
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. CANADY. Thank you very much, Judge. I want to express special gratitude to you for taking time out of your schedule.
Mr. SULLIVAN. My pleasure. Thank you for inviting me here.
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Mr. CANADY. Mr. Twist.
STATEMENT OF STEVEN J. TWIST, MEMBER OF THE STEERING COMMITTEE, NATIONAL VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK AND FORMER CHIEF ASSISTANT ATTORNEY GENERAL, STATE OF ARIZONA, SCOTTSDALE, AZ
Mr. TWIST. Mr. Chairman and members, thank you also for inviting me to participate. As I sat and listened to Judge Sullivan's comments, I could not help but think if all judges expressed the same sensitivity that he expresses, perhaps we would not be here today. But I would remind the members of the subcommittee that James Madison told us if men were angels, no government would be necessary. But indeed, experience has taught us the need for—I think he went on to say—''auxiliary precautions,'' and we are here today to talk about a precaution against those in the system, who unfortunately pervade it who are not respectful of the rights of crime victims.
I would like to both share a summary of my written comments with you and then also respond to some of the issues that have been raised.
The unifying theme of most witnesses who have testified before your committee or who have testified in the Senate seems to be, whether they are pro or con, there seems to be near universal support for the rights themselves. You can talk about some disagreements about some of the issues in the amendment but generally everyone says, ''I am all for victims' rights. I just do not think they need to be in the Constitution.''
Certainly Judge Sullivan presented moving testimony about the Judicial Conference and I see here from the letter that was submitted it is indeed the quoted statement of the Judicial Conference, ''In the event that Congress chooses to affirmatively act, the Conference would strongly prefer the Congress to pursue a statutory approach to the issue, as opposed to a constitutional amendment.''
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But surely the Judicial Conference knows that the Congress enacted victims' rights statutes in 1982, that it reaffirmed and strengthened them in 1990, that there are statutes on the books in every State and yet even to this day, we know story after story that do not come out like the cases that Judge Sullivan has referred to. Something is deeply wrong in the system.
The rights themselves are hard to argue with. The right to notice of proceedings and key events, like the release of your attacker, the right not to be excluded from proceedings, all of the rights that are enumerated in the proposed amendment are simple and straightforward and meaningful and important and they do not really engender a lot of controversy. They, in fact, should be the birthright of every American, as my friend John Stein at NOVA has reminded us so often.
There is not a party line that divides the American people on this question. There is not a color line or a race line. There is not a left or a right line, not a gender line. I would submit to you there is not even a criminal line. In my State, where we have had a constitutional amendment for a decade, even offenders want these rights when they themselves are victims of crime and seek to assert them.
Opponents always say they support the rights in general; they just do not want them in the Constitution. So why should they be in the Constitution? Well, permit me to quote President Clinton: ''Until these rights are also enshrined in our Constitution, the people who have been hurt most by crime will continue to be denied equal justice under law.'' That is what this country really is all about—equal justice under law, he said. Or Attorney General Reno: ''Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.''
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Chairman Hyde answered the question this way: ''Victims deserve constitutional protections just as falsely accused persons do. For that reason, I believe specific, defined rights under the Federal Constitution should be provided.''
Attorney General Carla Stovall of Kansas: ''It is unjust that within our system, no rights are guaranteed by the Constitution to the victims of the very acts for which the accused have been arrested and guaranteed rights.''
Professor Larry Tribe: ''These are the very rights with which our Constitution is properly concerned—rights of individuals to participate in all those government processes that strongly affect their lives.''
Even opponents like Ellen Greenlee of the Legal Defender Society noted before your full committee 4 years ago, ''A State constitution is far easier to ignore than the Federal one.''
The 1998 NIF study concluded, after an extensive survey, ''The enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice.''
The Office for Victims of Crime, after an extensive review of the field: ''An amendment is the only legal measure strong enough,'' they concluded.
The proposed amendment meets ever test set out by the Citizens for the Constitution. I brought their booklet. No proponent of constitutional amendments that have passed this House in recent years, they set out eight guidelines for when it would be appropriate to support an amendment to the Constitution. This proposal meets every one of the eight.
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The rights are of abiding importance. They protect individual rights against government action. The evidence is unequivocally strong that the rights cannot be achieved by other means. It is consistent with how we protect the rights of the accused. It is enforceable and the standing provision and other provisions in section 2 make it so, and I hope we will have a chance to talk about that. It has been thought through during two decades of trying and learning about other means—State constitutional provisions, State statutes, Federal statutes—and all have been found wanting. It has had years of full and fair debate, almost two decades now. And, their last criteria, it has a 7-year deadline for ratification.
Let me say to those who have argued, and Mr. Fein among them—let me say I deeply respect the service of Judge Sullivan and the scholarship of Mr. Fein and other opponents, but I respectfully disagree. Mr. Fein has argued that the amendment would trivialize the Constitution.
When I talk to victims around the country, when we hear stories like have been presented to the subcommittee today and your full committee earlier, let me say it is not trivial to the parents of a murdered child that their government excludes them from the trial of their child's murderer. It is not trivial that a battered woman is not told by the government when her attacker is released. It is not trivial to a rape victim that her government forces her to stand silent during a plea bargaining proceeding or a sentencing.
These things, protected in the amendment, are not trivial things. They are deep wounds of injustice that are inflicted by the government and they will only be stopped by our most sacred law.
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One final comment, Mr. Chairman. When James Madison took to the floor of this House to propose the Bill of Rights, he did so at a time when he had a lot of criticism. Federalists said that the amendments were unnecessary because State constitutions had bills of rights. Anti-Federalists said they did not go far enough. But he took on those criticisms and he looked at the State constitutional amendments and he said in a speech on the floor that many of them were inadequate, many of them did not go far enough, and we find ourselves in the same position today.
The same sentiment that animated James Madison, in response to Mr. Nadler's point earlier, he said, ''How will it mean a better enforcement if we have laws in the U.S. Constitution?'' and this is what Madison said. He said the amendments ''will have a tendency to impress some degree of respect for the rights, to establish the public opinion in their favor and rouse the attention of the whole community. They acquire, by degrees, the character of fundamental maximums as they become incorporated with the national sentiment.''
That is what a constitutional amendment will do. It will change the culture—not depriving defendants of their sacred rights in our Constitution but providing equal fairness for these individual citizens who are denied equal justice today. Thank you.
[The prepared statement of Mr. Twist follows:]
PREPARED STATEMENT OF STEVEN J. TWIST, MEMBER OF THE STEERING COMMITTEE, NATIONAL VICTIMS' CONSTITUTIONAL AMENDMENT NETWORK AND FORMER CHIEF ASSISTANT ATTORNEY GENERAL, STATE OF ARIZONA, SCOTTSDALE, AZ
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Mr. Chairman and Members, thank you for giving me the opportunity to address the Subcommittee and to express my support for H. J. Res. 64, the proposed Crime Victims' Rights Amendment.
At the outset permit me to describe for the Subcommittee my background in this area. I am a former prosecutor. I served for twelve years as the Chief Assistant Attorney General for the State of Arizona. Under then Attorney General Bob Corbin, I supervised the investigation and prosecution of hundreds of criminal cases, dealing with thousands of crime victims. I started the first state Attorney General based Victim-Witness Program.
Before joining the Attorney General's Office, I was the principal author of Arizona's Criminal Code. In that code, Arizona adopted the first victims' rights statutes in its history. When it became clear to me years later that statutes were not sufficient to change the culture of the criminal justice system so that it might be more responsive to the rights of crime victims, I authored the Arizona constitutional Victims' Bill of Rights, which our voters approved overwhelmingly in 1990. I was the original author of the Victims' Rights Implementation Act. which our Legislature passed in 1991.
Since these new laws have taken effect, I have represented crime victims, in actions before Arizona courts, to enforce their statutory and state constitutional rights. I have prepared and presented victims' rights training materials and lectures to prosecutors and judges.
I have been in the movement for crime victims' rights since 1974. Some years ago, shortly after the President's Task Force on Victims of Crime issued its report in December, 1982 proposing, inter alia, a federal constitutional amendment for crime victims' rights, the victims' movement made a conscious choice to forego pressing for a federal amendment in favor of passing state amendments, testing them in various forms, building up a body of law, and seeing whether they were sufficient. For almost a decade, I have worked with states all across the country in aiding their efforts to establish state constitutional rights for crime victims. I am currently on the Board of Directors of the National Organization for Victim Assistance and the Executive Board of the National Victims' Constitutional Amendment Network.
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This experience, over the last two and one-half decades, has convinced me that only an Amendment to the United States Constitution will bring about the reform our law needs if crime victims are to be treated with the fundamental fairness that a decent society should extend. In my testimony I would like to elaborate on this point in three ways; first, by reviewing the rights that we propose, next by discussing why they need to be in the U. S. Constitution, and finally by responding to some of the arguments that have been offered in opposition to the proposal.
I. THE RIGHTS PROPOSED
1. Right to notice of proceedings
Despite the fact that simple notice of proceedings is regarded universally as an element of fundamental fairness for anyone involved in the justice system, crime victims are not given any notice of criminal justice proceedings in too many jurisdictions across this country.
Witnesses before your full committee and before the Senate Judiciary Committee have given compelling testimony about the devastating effects on crime victims who learn that proceedings in their case were held without any notice to them. What is most striking about this testimony is that it comes on the heels of a concerted efforts by the victims' movement to obtain notice of hearings. In 1982, the President's Task Force on Victims of Crime recommended that victims be kept appraised of criminal justice proceedings. Since then many state provisions have been passed requiring that victims be notified of court hearings. But those efforts have not been fully successful. A recent Department of Justice Report [New Directions from the Field: Victims' Rights and Services for the 21st Century (1998) hereinafter '' '98 Report''] found that not all states had adopted laws requiring notice for victims, and even in the ones that had, many had not implemented mechanisms to make such notice a reality. At 13.
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To fail to provide simple notice of proceedings to criminal defendants would be unthinkable; why do we tolerate it for crime victims?
The right to be ''informed'' of proceedings is fundamental to the notions of fairness and due process that ought to be at the center of any criminal justice process. Victims have a legitimate interest in knowing what is happening to ''their'' case, and such information can sometimes allay a victim's fears about the whereabouts of a suspect or defendant.
Surely it is time to protect this fundamental interest of crime victims by securing an enduring right to notice in the Constitution.
2. Right to attend
The Crime Victims Rights Amendment will also guarantee that victims have the right to attend (''not be excluded from'') court proceedings. This also builds on the recommendations for the President's Task on Victims of Crime, which concluded that victims ''no less than the defendant, have a legitimate interest in the fair adjudication of the case, and should therefore, as an exception to the general rule provided for the exclusion of witnesses, be permitted to be present for the entire trial.'' Allowing victims to attend trials has a variety of benefits for victims. The victim's presence may help to heal the psychological wounds from the crime. Giving victims the right to be present also helps them to reassert control over their own lives, a dignity that criminals have often impaired by the criminal act. Victims can even further the truth-finding process ''by alerting prosecutors to misrepresentations in the testimony of other witnesses.'' While some have argued that a victim's exclusion is needed to avoid the possibility of tailored testimony, this concern can be addressed in other ways such as having the victim testify first or relying on pre-trial statements to police officers or the grand jury. Moreover no party in a civil case is excluded from the courtroom even when they are witnesses and we do not value truth any less in civil cases than we do in criminal cases. After several hearings on the Victims Rights Amendment, the Senate Judiciary Committee recently concluded that there is ''no convincing evidence that a general policy [of] excluding victims from courtrooms is necessary to ensure a fair trial.''
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This conclusion is consistent with the findings of the '98 Report, ''There can be no meaningful attendance rights for victims unless they are generally exempt from [witness sequestration rules]. Just as defendants have a right to be present throughout the court proceedings whether or not they testify, so too should victims of crime.''
3. Right to be heard
Victims also should be given the right to be heard at appropriate points in the criminal justice process. The Crime Victims Rights Amendment does not propose to make victims ''co-equal parties in the criminal justice process'' free to speak whenever they wish. Instead, the proposed Amendment extends to victims the right to be heard at certain crucial proceedings where they have useful information to provide. One such point is a hearing to determine whether to accept plea bargains. As Professor Beloof has explained in his excellent casebook on victims' rights:
The victim's interests in participating in the plea bargaining process are many. The fact that they are consulted and listened to provides them with respect and an acknowledgment that they are the harmed individual. This in turn may contribute to the psychological healing of the victim. The victim may have financial interests in the form of restitution or compensatory fine which need to be discussed with the prosecutor. . . . The victim may have a particular view of what . . . sentence [is] appropriate under the circumstances. . . . Similarly, because judges act in the public interest when they decide to accept or reject a plea bargain, the victim is an additional source of information for the court.
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Victims also deserve to be heard at bail and other release hearings. By informing courts of the risks posed by criminal defendant, victims allow judges to reach appropriate decisions on pretrial release. This is not to say that victims should be able to dictate to judges whether and on what terms a defendant should be release. But it is to say that victims should have, while not a veto, at least a voice in the process. The failure of the system to hear from victims of crime at this stage has sometimes lead to tragic consequences from release decisions, consequences that might well have been averted if the judge had heard from the affected victims.
Victims should be heard before a judge imposes sentence. This furthers fundamental due process, for ''[w]hen the court hears, as it may, from the defendant, his lawyer, his family and friends, his minister, and others, simple fairness dictates that the person who has borne the brunt of the defendant's crime be allowed to speak.'' While all states now recognize some form of a victim's right to be heard at sentencing, shortfalls remain. A federal constitutional amendment would clearly vindicate a victim's right to be heard in all these areas.
Similarly, victims should be heard before any post-conviction early release is allowed. Without victim testimony the releasing authority may be unaware of the true danger posed by the inmate seeking release, or the true nature of the crime that the inmate committed. In my own state the story of Patricia Pollard, fully set forth in the Senate Record, is compelling evidence of the importance of this right.
4. Right to notice of escape or release
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Victims also should be given the right to be notified whenever a defendant or a convicted offender is released or escapes. Without such notice, victims are placed at grave risk of harm. As the Department of Justice recently explained, ''Around the country, there are a large number of documented cases of women and children being killed by defendants and convicted offenders recently released from jail or prison. In many cases, the victims were unable to take precautions to save their lives because they had not been notified of the release.'' The risk of attack is particularly serious in cases involving domestic violence. By providing victims with a right to ''reasonable notice,'' the constitutional amendment would help alert such victims to potential dangers. This is the very least that a decent society owes to its victims of violence.
5. Right to consideration of the victim's interest in a trial free from unreasonable delay
Victims should also be given a right to consideration for their interest in a trial ''free from unreasonable delay.'' In today's criminal justice system, defendants are often able to prolong the start of trials for no good reason. Let me make plain that I am not speaking here of delays for legitimate reasons. But there can be no doubt that in a number of cases defendants have sought—and obtained—delay for delay's sake. The Senate Judiciary Committee recently concluded that ''efforts by defendants to unreasonably delay proceedings are frequently granted, even in the face of State constitutional amendments and statutes requiring otherwise.'' Such practices should be eliminated by plainly recognizing a victim's interest in a trial brought to a conclusion without ''unreasonable delay.'' This right does not conflict with defendants' rights; defendants have, of course, long enjoyed their own right to a ''speedy trial.''
The '98 Report noted, ''Repeated continuances cause serious hardships and trauma for victims as they review and relive their victimization in preparation for trial, only to find the case has been postponed.'' For victims, ''[t]he healing Process cannot truly begin until the case can be put behind them. This is especially so for children and victims of sexual assault or any other case involving violence.'' President's Task Force on Victims of Crime, Final Report 75 (1982).
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6. Right to an order of restitution
As the Senate Judiciary Committee recently found, ''Crime imposes tremendous financial burdens on victims of crime. . . . In 1991, the direct economic costs of personal and household crime was estimated to be $19.1 billion, a figure that did not include costs associated with homicides.'' [Senate Judiciary Report on S. J. Res. 44, 1998]. While courts have long had the power to order restitution for crime victims it remains one of the ''most underutilized means of providing crime victims with a measurable degree of justice.'' '98 Report. To be sure many defendants will not be able to fully discharge a restitution order. But even nominal restitution can have beneficial effects for the victim. Our fundamental law should embody this fundamental value.
7. Right to have safety considered
Under current law the safety of the victim is not always considered when release decisions are made. Often the only consideration, in pre-trial releases, is the likelihood that the defendant will appear when required. This systemic failure threatens real harm to crime victims. When this consideration is required in every court release orders will be more sensible and victims will not unwittingly be put in harm's way.
8. Notice of these rights
Just as defendants are provided notice of their rights, so to should crime victims be advised of theirs. Again this is an element of simple fairness. In my state since the enactment of our state constitutional rights for crime victims this notice has been provided simply and efficiently.
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9. Standing to assert rights
For rights to be real they must be enforceable. The Standing Clause will give victims the right to stand before any judge in the country and make a claim for the enforcement of the rights secured.
II. THE NECESSITY FOR A CONSTITUTIONAL AMENDMENT.
Even the Amendment's most ardent critics usually say they support most of the rights in principle. If there is one thing certain in the victims' rights debate, it is that these words, ''I'm all for victims' rights but . . .,'' are heard repeatedly. But while supporting the rights ''in principle,'' opponents in practice end up supporting, if anything, mere statutory fixes that have proven inadequate to the task of vindicating the interests of victims. As Attorney General Reno testified before the House Committee on the Judiciary, ''. . . efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.'' The best federal statutes have proven inadequate to the needs of even highly publicized victim injustices, as Professor Cassell's writing about the plight of the Oklahoma City bombing victims has ably demonstrated.
In my state, statutes were inadequate to change the justice system. And now, despite its successes, we realize that our state constitutional amendment will also prove inadequate to fully implement victims' rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that is needed to completely change old ways. In our state, as in others, the existing rights too often ''fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused's rights—even when those rights are not genuinely threatened.'' The experience in my state is, sadly, hardly unique. A recent study by the National Institute of Justice found that ''even in States where victims' rights were protected strongly by law, many victims were not notified about key hearings and proceedings, many were not given the opportunity to be heard, and few received restitution.'' The victims most likely to be affected by the current haphazard implementation are, perhaps not surprisingly, racial minorities.
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A group calling itself ''Citizens for the Constitution'' [hereinafter ''Citizens''] has organized under the auspices of The Century Foundation's Constitution Project. Their purpose is to call for restraint in the consideration of Amendments to the U. S. Constitution. In their recent pamphlet, ''Great and Extraordinary Occasions'': Developing Guidelines for Constitutional Change, the group propounds eight guidelines which, they argue, should be satisfied before any constitutional amendment would be justified. The ''Citizens'' raise some questions, in the commentary following their guidelines, about the Crime Victims' Rights Amendment. Applying these rigorous Guidelines, however, despite the reservations of the ''Citizens'' themselves, demonstrates unequivocal support for case for the Amendment. I would like to direct the Subcommittee's attention to these eight guidelines, which the ''citizens'' offer in the form of eight questions.
1. Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?
Yes.
Even as the Constitutional rights of persons accused or convicted of crimes address issues of ''abiding importance,'' so to do the proposed rights of crime victims. The legitimate rights of the accused to notice, to the right to be present and the right to be heard or remain silent, the right to a speedy and public trial, or any of the other rights are surely no more enduring than the legitimate interests of the victim to notice, presence, or the right to be heard, or any of the other rights proposed by the amendment. Surely no one could persuasively argue that the rights of the innocent victim were less important or enduring.
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Indeed, it is precisely because these values for victims are of enduring, or ''abiding'' importance that they must be protected against erosion by any branch or majoritarian will. That they do not exist today broadly across the country is evidence that they are not adequately protected despite general acceptance of their merit.
2. Does the proposed amendment make our system more politically responsive or protect individual rights?
Yes.
Clearly the proposed amendment is offered to ''protect individual rights.'' That is its sole purpose.
The ''Citizens'' however, suggest that Congress should ask ''whether crime victims are a ''discreet and insular minority'' requiring constitutional protection against overreaching majorities or whether they can be protected through ordinary political means. Congress should also ask whether it is appropriate to create rights for them that are virtually immune from future revision. Let's review these two questions.
''[O]rdinary political means'' have proven wholly inadequate to establish and protect the rights reviewed above. If this were not so they would exist and be respected in every state and throughout the federal government. The evidence that they are not is as compelling as it is overwhelming. Why is this so? Are crime victims unpopular? No, but as a class they are ignored; their interests subordinated to the interests of the defendant and the professionals in the system. And those interests are entrenched as deeply as any in this society. Crime victims become ''discreet and insular'' by virtue of their transparency. If this were not so we would not be here for our rights would be secure.
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3. Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?
Yes.
The ''Citizens'' write, ''The proposed victims' rights amendment raises troubling questions under this Guideline. Witnesses testifying in Congress on behalf of the amendment point to the success of state amendments as reason to enact a federal counterpart. But the passage of the state amendments arguably cuts just the other way; for the most part, states are capable of changing their own law of criminal procedure in order to accommodate crime victims, without the necessity of federal constitutional intervention. While state amendments cannot affect victims' rights in federal courts, Congress has considerable power to furnish such protections through ordinary legislation. Indeed, it did so in March 1997 with Public Law 105–6 . . . which allowed the victims of the Oklahoma City bombing to attend trial proceedings.''
I was one of those witnesses the ''Citizens'' referred to. They should have read all my testimony. Let me repeat again one of my statements, ''In my state, the statutes were inadequate to change the justice system. And now, despite its successes, we realize that our state constitutional amendment will also prove inadequate to fully implement victims' rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that is needed to completely change old ways. In our state, as in others, the existing rights too often ''fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused's rights—even when those rights are not genuinely threatened.'' (Quoting Prof. Lawrence Tribe on the proposed amendment).
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Moreover our courts have now made explicit in a series of cases (cited in Hearing Report on S. J. Res. 6, April 16, 1997, Senate Judiciary Committee) what was always understood: namely that the U. S. Constitutional rights of the defendant will always trump any right of the victim without any fair attempt to balance the rights of both.
On the Oklahoma City bombing point that the ''Citizens'' make they should have read the whole testimony of Prof. Paul Cassell who convincingly demonstrates how the statute cited by the citizens was inadequate to the task of fully protecting even these high profile and compelling victims. The law didn't work for them. How much less must it work for victims who don't have the clout to get an act of Congress passed? That ''other means,'' to use the ''Citizens'' phrase, have simply proven inadequate is concurred in by a broad consensus that includes the Justice Department, constitutional scholars of the highest regard from both ends of the political spectrum, the President, the Vice President, the platforms of both major political parties, and bi-partisan coalition of Members and Senators, and crime victim advocates throughout our country.
4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves in tact?
Yes.
The proposed rights are perfectly consistent with the constitutional doctrine that fundamental rights for citizens in our justice system need the protection of our fundamental law.
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5. Does the proposed amendment embody enforceable, and not purely aspirational, standards?
Yes.
The text of the proposed amendment grants to crime victims constitutional standing to stand before any judge in the country and seek orders protected the established rights. This is the essence of enforceability.
6. Have the proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?
Yes.
More than simply ''think through'' the proposal, proponents of the CVRA have taken roughly two decades of experience with state statutes and constitutional provisions to develop a very refined understanding of the limits of state and federal law, the need for a federal amendment, and how that amendment would work in actual practice and be interpreted. No other constitutional amendment has had this degree of vetting.
7. Has there been full and fair debate on the merits of the proposed amendment?
Yes.
The Congress has had the amendment under consideration since 1996. There have been major hearings in both bodies on multiple occasions. The record of debate and discussion throughout the country is extensive.
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8. has congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?
Yes.
See the ''Resolved'' Clause which introduces H. J. Res. 64.
The proposed amendment passes the test of the ''Citizens'' Guidelines. More importantly, it is fully faithful to the spirit and design of James Madison.
The ''Citizens'' ' pamphlet, Great and Extraordinary Occasions, takes its name from a line in The Federalist No. 49, authored by James Madison. There Madison rightly argued for restraint in the use of the amendment process. But of course he rose above rightful restraint to propose the first twelve amendments.
When James Madison took to the floor and proposed the Bill of Rights during the first session of the First Congress, on June 8, 1789, ''his primary objective was to keep the Constitution intact, to save it from the radical amendments others had proposed. . . .'' In doing so he acknowledged that many Americans did not yet support the Constitution.
''Prudence dictates that advocates of the Constitution take steps now to make it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them.''
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The fact is, Madison said, there is still ''a great number'' of the American people who are dissatisfied and insecure under the new Constitution. So, ''if there are amendments desired of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens,'' why not, in the spirit of ''deference and concession,'' adopt such amendments?
Madison adopted this tone of ''deference and concession'' because he realized that the Constitution must be the ''will of all of us, not just a majority of us.'' By adopting a bill of rights, Madison thought, the Constitution would live up to this purpose. He also recognized how the Constitution was the only document which could likely command this kind of influence over the culture of the country.
Our goals are perfectly consistent with the goals that animated James Madison. There is substantial evidence in the land that the Constitution today does not serve the interests of the ''whole people'' in matters relating to criminal justice. And the way to restore balance to the system, in ways that become part of our culture, is to amend our fundamental law.
''[The Bill of Rights will] have a tendency to impress some degree of respect for [the rights], to establish the public opinion in their favor, and rouse the attention of the whole community . . . [they] acquire, by degrees, the character of fundamental maxims . . . as they become incorporated with the national sentiment. . . .''
Critics of Madison's proposed amendments claimed they were unnecessary, especially so in the United States, because states had bills of rights. Madison responded with the observation that ''not all states have bills of rights, and some of those that do have inadequate and even 'absolutely improper' ones.'' Our experience in the victims' rights movement is no different. Not all states have constitutional rights, nor even adequate statutory rights. There are 32 state constitutional amendments and they are of varying degrees of value. See Appendix A.
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Harvard Professor Lawrence Tribe has observed this failure: ''. . . there appears to be a considerable body of evidence showing that, even where statutory or regulatory or judge-made rules exist to protect the participatory rights of victims, such rights often tend to be honored in the breach. . . .'' As a consequence he has concluded that crime victims' rights ''are the very kinds of rights with which our Constitution is typically concerned.''
After years of struggle, we now know that the only way to make respect for the rights of crime victims ''incorporated with the national sentiment,'' is to make them a part of ''the sovereign instrument of the whole people,'' the Constitution. Just as James Madison would have done it.
III. SELECTED ARGUMENTS IN OPPOSITION AND RESPONSES
''I'm all for victims' rights, but the proposed amendment is 'an assault on federalism as it has been defined for more than two centuries.' ''
The full quote from Prof. Raskin continues, ''No aspect of public policy, with the possible exception of education, has been more jealously guarded by the states and localities than the investigation and prosecution of common law crimes and the structuring of the accompanying criminal justice process.'' The federalism concern also has been expressed by others.
The criminal justice system which Prof. Raskin describes does not exist. In many important matters the Constitution of the United States has come to dictate to the states the ''structuring'' of their ''criminal justice process.'' Certainly Prof. Raskin knows this and indeed supports it. Through the Fourteenth Amendment, the courts have structured the criminal justice process in each state to be respectful and protective of the rights established in the Bill of Rights for persons accused and convicted of crimes. The incorporation of these rights through the Fourteenth Amendment, and their applicability to the states, has been accepted within our federal system in order to secure a national threshold of fair treatment. Why should not the same deference be given to the rights of crime victims as is given to the rights of accused or convicted offenders?
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The authors and supporters of the Crime Victims' Rights Amendment are sympathetic to the demands of federalism and deeply respect the role of the states. The proposal does not infringe these important values. Nothing in the proposed amendment denies to the states their rightful authority to define and implement the rights as they see fit, subject only to the unifying review of the U. S. Supreme Court. Moreover, the power of the Congress to enforce the provisions of the amendment are limited by the understanding given to the word ''enforce'' in recent Supreme Court decisions, e.g. City of Boerne. This jurisprudence is important to our understanding of the role of the states within their respective jurisdictions. For a fuller discussion of this point see the Senate Judiciary Report on S. J. Res. 44
As long as the Constitution establishes a floor of rights for defendants it will be proper for the same Constitution to establish a floor of rights for victims. As Attorney General Reno earlier testified in the House, ''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 haphazard patchwork of victims' rights.''
''I'm all for victims' rights, but the costs of this amendment will be staggering and local criminal justice systems will be crippled as a consequence.''
This criticism is often made by those who have no direct knowledge of the costs of providing rights for crime victims and who have not thought through clearly enough the actual fiscal impact of the proposed amendment. Let them come to Arizona. Our state constitutional amendment has been in effect since November 1990 and the costs have been minimal and manageable. Consider the proposed rights themselves. H. J. Res 64 proposes that in cases of violent crimes each victim would have the rights to:
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reasonable notice of . . . all public proceedings . . . reasonable notice of a release or escape from custody relating to the crime reasonable notice of the rights established
Some costs are associated with these rights, but how and where they fall will be dependant on each state's decision. In some states the duty to provide notice of proceedings could fall on the prosecutor, as in my state, while in others the duty may fall to the courts. The costs will vary with the kind of notice provided. In some places victims may receive notice by mail, while in others notice may be provided by the victim calling a central phone number. In either case the costs are not staggering.
More importantly, it is right that victims be given these notices. No similar right of a defendant would be denied on the basis of cost. None should be for crime victims.
be heard . . . at all public proceedings (and certain non-public parole proceedings) to determine a release from custody, an acceptance of a negotiated plea, or a sentence;
No costs are associated with allowing the victim the right to speak at proceedings that are already held. There are those who argue that this right to be heard regarding pleas will result in far fewer pleas and far more trials. There is no evidence of this happening anywhere. In Arizona the trial rate has remained unaffected.
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consideration for the interest of the victim in a trial free from unreasonable delay;
No costs are associated with requiring the court to take these matters into consideration. To the extent it helps avoid unreasonable delays in the trial it may save costs.
restitution from the convicted offender;
No significant costs are associated with the requirement to order restitution. Victims typically will submit proof of economic losses to the court and restitution orders are simply made a part of sentencing. If amounts are contested the issues are resolved during sentencing proceedings that are already held.
consideration for the safety of the victim in determining any release from custody;
Requiring courts or parole authorities to consider the safety of the victim will not impose significant costs. It may result in more carefully crafted release conditions for the accused or convicted offender, but so be it. It may save lives.
The cost argument is a red-herring. Costs are modest, and moreover, appropriate when viewed in light of the important interests at stake. Not one of these critics would dare suggest a cost litmus test for defendants' rights. None should be imposed on crime victims. Let the critics come to Arizona.
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''I'm all for victims' rights, but this proposal will undermine the rights of defendants.''
Nothing in H. J. Res. 64 will limit the fundamental rights of defendants.
Giving to the victim the right to certain notices infringes no right of a defendant. Allowing the victim the right to be present does not ''substantially undermine'' any constitutional right of a defendant. Allowing the victim the right to speak at release, plea, or sentencing proceedings does not deny a constitutional right to a defendant, but it does allow the court to make more informed and just decisions. Defendants do not have a constitutional right to refuse or avoid restitution for the economic losses they cause to their victims. Defendants have a right to effective counsel, but they have no right to unreasonably delay proceedings and requiring the court to consider the interests of the victim in a trial free from unreasonable delay does not deny any constitutional right to a defendant. Defendants have no right to prohibit the court or parole authority from considering the safety of the victim when making release decisions and requiring the safety of the victim to be considered does not infringe any right of the defendant.
When considered in the light of reason, and not emotion, vague assertions that ''fundamental constitutional rights will be undermined,'' have little value other than to inflame the debate; the amendment is not an assault on the fundamental rights of the defendant. In the justice system throughout the country, rights for those involved are not ''a zero-sum game.'' Rights of the nature proposed here do not subtract from those rights already established, they merely add to the body of rights that we all enjoy as Americans.
Professor Tribe concurs in this analysis when he writes, ''no actual constitutional rights of the accused or of anyone else would be violated by respecting the rights of victims in the manner requested.''
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Crime victims seek balance—that victims' rights will not automatically be trumped every time a defendant offers a vague and undefined ''due process'' objection to the victims' participatory and substantive rights. S. J. Res. 44 will achieve this fairness and balance.
''I'm all for victims' rights, but giving the victim a right to be present in the courtroom will lead to perjured testimony by the victim.''
The imbalance of the present system is evident in this criticism. The argument goes that victims must be excluded during trial, and perhaps at some pre-trial stages, just like other witnesses, so they will not hear other testimony and conform their own to it. Defendants, of course, may be witnesses in their own trials, but they have a right to be present which overrides the rule of exclusion. The same rules should apply to the crime victim. Typically those rules now make exception so that the prosecution is allowed to keep even the principal investigator in the trial without exclusion, but no exception is made for the victim.
And what of the fear of perjury? Consider the civil justice system. If a lawsuit arises from a drunk driving crash, both the plaintiff (the victim of the drunk driver) and the defendant (the drunk driver) are witnesses. Yet both have an absolute right, as parties in the case, to remain in the courtroom throughout the trial. Do we value truth any less in civil cases? Of course not. But we recognize important societal and individual interests in the need to participate in the process of justice.
This need is also present in criminal cases involving victims. How can we justify saying to the parents of a murdered child that they may not enter the courtroom because the defense attorney has listed them as witnesses. This was a routine practice in my state, before our constitutional amendment. And today, it still occurs throughout the country. How can we say to the woman raped or beaten that she has no interest sufficient to allow her the same rights to presence as the defendant? Closing the doors of our courthouses to America's crime victims is one of the shames of justice today and it must be stopped.
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Victims in my state have had this unqualified right to be present since November 1990. Based on our actual experience the fears of the critics are unfounded.
''I'm all for victims' rights, but the right to have the victim's interest in a trial free from unreasonable delay will force both prosecutors and defendants to trial too early.''
Nothing in the amendment will cause this result. The key phrase is ''unreasonable delay.'' Giving the state an adequate time to prepare its case is not ''unreasonable delay.'' The state is already under time deadlines by virtue of the defendant having a right to a speedy trial and the various acts which implement that right.
The defendant has a constitutional right to effective counsel and to be effective the defendant's counsel needs an adequate time to prepare, to review the evidence, the case file, and interview certain witnesses. Giving the defendant's counsel an adequate time to prepare is not an ''unreasonable'' delay.
The Arizona Constitution has given crime victims a right to both ''a speedy trial or disposition'' and a ''prompt and final conclusion of the case after the conviction and sentence.'' It has been the law for the last nine years and I am aware of no case in which either the state or the defendant has been forced to trial before they were ready. The fears of the critics are unfounded.
What the amendment in Arizona has done, albeit inadequately, and what the federal amendment will do, is allow, in the typical case, the court to have a constitutional context in which to balance the legitimate rights of the defendant to effective counsel and due process, with the rights of the victim to some reasonable finality.
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Defendants often seek continuances, and then seek to exclude the time of those continuances from the speedy trial rules that would otherwise control the processing of the case. Because these speedy trial rules run to the benefit of the accused, when the accused asks that they be waived, courts are often loath to deny the requests. This is especially true when no countervailing interest in reasonable finality is preserved and protected.
And yet, unreasonable delay is not a mere scheduling problem. It is an all too often painful agony for the victim, who must continue to re-live the crime and confront the defendant. Allowing a reasonable balance between both of the legitimate interests of the defendant and the victim to be considered by the court is the goal of the amendment.
Nothing in the proposed amendment gives the crime victim the power to force any case to trial before it or the defense is ready.
''I'm all for victims' rights, but the right of the victim to have safety considered when making release decisions will result in a constitutional right to imprisonment even after a sentence has been served.''
As certain objecting law professors phrased this objection, ''The proposed Amendment . . . would . . . allow a victim of a crime to argue that it is unconstitutional to release a person from prison even though the sentence had been completely served.''
An examination of the text of the proposed amendment quickly disposes this criticism. The amendment provides that ''[e]ach . . . victim shall have the rights to . . . consideration for the safety of the victim in determining any conditional release from custody. . . .'' When a sentence ''has been completely served,'' as the law professors posit, there is no ''determining'' to be done in connection with the release. The release happens by operation of law and the expiration of the original sentence. No discretionary decision is permitted and hence no ''consideration'' would be given to the safety of the victim on the matter of the release itself. There may be discretion with respect to the conditions of a release and, of course, then the safety of the victim should always be considered. Sadly, it rarely is. The law professors have simply failed to understand the proposal.
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Others have argued that the same safety consideration should not be given to pre-trial release decisions. For most of our recent history the only relevant standard for a court's pre-trial release decision was whether or not the defendant would appear when required. Safety of the victim was not a factor, indeed not allowed to be considered. Recent changes in some states have allowed dangerousness to the victim or the community to be considered when making pre-trial release decisions. However, even these changes have proven inadequate to require consideration for the safety of the victim when fashioning conditions of pre-trial release because they are couched in terms of the defendants rights and not the victims. The time for this imbalance to end is now.
''I'm all for victims' rights, but the terms of this amendment are too vague to have any meaning,'' or in the alternative, ''I'm all for victims' rights, but this amendment is so specific it reads more like a statute than an amendment.''
Both criticisms, each contradicting the other, have been made. Neither is true. The amendment proposed is specific enough to make real change in the justice system and is still written to properly reflect the language and patterns of the Constitution.
If all the rights of the defendant were incorporated into one amendment, it would be longer and one could argue, both more specific in some cases and much more general in others, than this proposal. The rights there are as long and as specific as they need to be, as are these.
In this connection, some also argue that the proposed amendment is fatally flawed because it does not specifically define who the ''victim'' is. For some purposes the definition of the victim is self-evident and even without a statutory definition the court could determine who the victim was by resort to the elements of the charged offense. My testimony before the Senate Judiciary Committee in 1996 addresses this point in more detail.
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''I'm all for victims' rights, but this amendment reverses the presumption of innocence; a person is not a victim until there is a conviction.''
From NOW's Legal Defense and Education Fund comes: ''A victims' rights amendment would undermine the presumption of innocence by naming and protecting the victim before a crime is proven.''
That it was impossible for the Fund to complete that sentence without again referring to the person against whom the crime has been committed as ''the victim'' is evidence of the rhetorical problem here. But it is just that, merely a rhetorical problem having nothing to do with the presumption of innocence.
If a defendant's liberty can be taken away before trial and conviction without undermining the presumption of innocence, surely our justice system can provide the simple rights for crime victims enumerated in this proposal. The proposal has nothing to do with the burden of proof the government bears before a jury may convict an accused of an offense. That is what the presumption of innocence is all about. Nothing in this proposal reverses or undermines it in any way.
CONCLUSION
The time for statecraft is at hand.
Our country, our Constitution, and each of its Amendments, were born of compromise. Not compromise on issues either trivial or superficial, but fundamental issues, ones born of convictions deeply held. Jefferson called the Bill of Rights ''half a loaf.'' But he supported it. Governor Randolph of Virginia was originally opposed to the Constitution and sought a new constitutional convention. In the end, because he believed the greater good was served by union, he was an ardent supporter of the plan and rose in stature as a statesman. The Constitution was born of a profound statecraft, one that rejected the hordes of nay sayers and recognized that the Constitution must be universal, adapted to meet the needs of the ''whole people.''
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Today, for crime victims, this promise that the Constitution would become ''the sovereign instrument of the whole people'' lies hollow and unfulfilled. The founders would not recognize our system of justice, which has grown in utter disregard of the victims.
Nothing about this injustice is inevitable or unchangeable. We have the power, through H. J. Res. 64, to right the wrongs inflicted upon crime victims by government-sanctioned neglect. Now is the time to summon the will and the decency to change the course of justice and establish rights for crime victims.
This is the call to bi-partisanship; please do not be timid in the face of great injustice. The American people will hail your achievement and greet this new amendment with a profound sense of gratitude.
| National Victims Constitutional |
| Amendment Network, |
| Scottsdale, AZ, February 24, 2000. |
Hon. Charles Canady,
House of Representatives, Washington, DC.
Dear Mr. Canady: I am writing on behalf of the National Victims' Constitutional Amendment Network (NVCAN), at your invitation, to submit for the record of your recent hearing on H. J. Res. 64, additional comments regarding the various language proposals included in the ''Statement for the Record'' of Eleanor D. Acheson, Assistant Attorney General, Office of Policy Development, U. S. Department of Justice [hereinafter ''Statement''].
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NVCAN is a broad coalition of national and local victims advocacy organizations which includes, among many others, Mothers Against Drunk Driving, the National Organization for Victim Assistance, Parents of Murdered Children, the National Association of Crime Victim Compensation Boards, the National Troopers Coalition, and the National Center for Missing and Exploited Children. For a current listing of major organizational supporters please note our website at nvcan.org.
We have worked for quite a long time with the Justice Department on many of the issues raised in Ms. Acheson's Statement. We are grateful for the chance to share our views on these issues with you and the members of your Subcommittee.
Issue 1
''. . . [w]e urge that the following language be added: 'Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution.' ''[Statement, p.4].
The likely, although perhaps unintended, consequence of the proposed language would be to always subordinate the rights of the victim to those of an accused or convicted offender. To constitutionalize such a ''trump card,'' would be directly contrary to the views President Clinton expressed on June 25, 1996 during the Rose Garden ceremony in which he announced his support for a Constitutional Amendment. The President said:
When a judge balances defendants' rights in the Federal Constitution against victims' rights in a statute or a state constitution, the defendants' rights almost always prevail. That's just how the law works today. We want to level the playing field. This is not about depriving people accused of crimes of their legitimate rights, including the presumption of innocence; this is about simple fairness. When a judge balances the rights of the accused and the rights of the victim, we want the rights of the victim to get equal weight. (Emphasis added).
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The language offered by the Ms. Acheson would not ''level the playing field,'' nor give ''equal weight'' to the rights of the victim. It would make crime victims second class citizens.
We have provided a more extended discussion of this issue through Prof. Paul Cassell's testimony before the Senate Judiciary Committee. Permit me to set forth here a portion of his April 28, 1998 statement:
One issue that has been raised in connection with victims' rights is how they would affect defendants' rights. In previous testimony, I gave my view that real conflicts between victims and defendants' constitutional rights were largely imaginary. A recently published article supports this view, collecting the available research on this subject:
Studies show that there ''is virtually no evidence that the victims' participation is at the defendant's expense.'' For example, one study, with data from thirty-six states, found that victim-impact statutes resulted in only a negligible effect on sentence type and length. Moreover, judges interviewed in states with legislation granting right to the crime victim indicated that the balance was not improperly tipped in favor of the victim. One article study victim participation in plea bargaining found that such involvement helped victims ''without any significant detrimental impact to the interests of prosecutors and defendants.'' Another national study in states with victims' reforms concluded that: ''Victim satisfaction with prosecutors and the criminal justice system was increased without infringing on the defendant's rights.''
Given this real world experience, the claim that victims rights come at the expense of defendant's rights is empirically unsupported. Sometimes, however, the additional claim is made that a new federal victims' rights Amendment would somehow ''trump'' the rights of criminal defendants. The argument runs that, because the Crime Victims' Rights Amendment will be adopted more recently than provisions in the Bill of Rights, it will in essence ''supersede'' any conflicting provisions in the Bill of Rights.
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This interpretation seems strained to me. But because this does seem to be a concern of some fair minded persons, it might be useful to put the matter to rest entirely. Accomplishing this goal poses no insurmountable problem. As Harvard Law Professor Laurence Tribe has written in supporting a victims' rights amendment:
Any constitutional amendment in this field must be written so that courts will retain ultimate responsibility for harmonizing, or balancing, the potentially conflicting rights of all participants in any given case. But assuring that this fine-tuning of conflicting rights remains a task for the judiciary should not be too difficult. What is difficult, and perhaps impossible, is assuring that, under the existing system of rights and rules, the constitutional rights of victims—rights that the Framers of the Constitution undoubtedly assumed would receive fuller protection than has proven to be the case—will not instead receive short shrift.
Language ensuring that rights would be appropriately balanced could be something along the following lines:
''In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced.''
This would simply codify what I assume would be the outcome without any such language. Courts today are used to balancing constitutional rights. For instance, courts have developed approaches to resolving conflicts between a defendant's right to a fair trial and the public's right to freedom of the press in ways that appropriately handle all legitimate concerns. Codified balancing language would continue this venerable tradition.
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The language we have offered addresses the legitimate concerns of those who wish to preserve a rigorous protection for the fundamental rights of the accused while also ensuring equal justice for the victim.
Issue 2
''This provision would create an unprecedented incursion on the President's power to grant executive clemency requests.'' [Referring to the right to notice and be heard regarding a proposed pardon or commutation.] (Statement, p. 4).
That victims should have the right to be heard on the matter of a proposed pardon or commutation seems beyond substantive debate. The concern of the Justice Department is therefore most telling and points precisely to the need for this right to be protected in the Constitution. Presumably the Department also would take the position that a mere statute which gave a victim the simple right to voice an opinion on the matter of a pardon or commutation would be unconstitutional. How then, except by way of a constitutional amendment, would the right be preserved?
We also question whether simply asking the President to consider the views of the victim truly represents ''an unprecedented incursion on the President's power. . . .'' The right of the victim is merely the right to a voice, not a veto, regarding the proposed executive clemency. Nothing in the proposed amendment would require the President to follow the views of the victim. After giving the victim an opportunity to be heard no court could undue the President's decision. Surely this can not be the threat to the President's power which the Statement asserts it is.
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Issue 3
''While we would prefer that the Amendment authorize the creation of exceptions that are 'necessary to promote a significant government interest,' we believe that eliminating the reference to the exceptions power altogether, and therefore leaving it implicit, would be preferable to retaining the 'compelling interest' language.'' (Statement, p. 7)
Some have argued that to constitutionalize the rights of the victim would make the Constitution too inflexible. As Professor Cassell has written:
The provision also gives Congress and the states the ability ''enact exceptions when necessary to achieve a compelling interest.'' This provision is designed to respond to suggestions that have occasionally been made that, in some rare cases, it would be impossible to provide rights to crime victims. Those suggestions are rarely fleshed out in any tangible way; nor are they based on real world examples of difficulties in implementing state constitutional provisions protecting victims rights. Accordingly, my sense is that the ability to enact exceptions will prove to be a safeguard against purely imaginary dangers. Should such dangers materialize, however, the Amendment empowers Congress and the states to respond by enacting exceptions. Exceptions must serve a ''compelling interest,'' a standard with which the courts are familiar.
The Statement argues that the ''compelling interest'' standard may be too high. We simply note that the standard should be high enough to protect the rights secured, but flexible enough to allow exceptions that would avoid true injustice or impossible administrative burdens. The exceptions language proposed in the Statement carries its own problems. The requirement that the interest protected be a ''government interest'' is arguably too restrictive.
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We are willing to work with you and the full Committee, as we have with the Department, to continue discussions on this point.
Issue 4
The application of the amendment to all felony crimes and all violent crimes ''could conceivably create enormous burdens in cases of mass victimization.'' (Statement, p. 7).
We support extending constitutional rights to victims of all crimes. We believe the burden argument is overstated and experience in the States with amendments which cover all crimes proves the point. [For example, Arizona's state constitutional amendment has, for the last decade, covered victims of all violent crimes and all felonies, without ''enormous burdens.''] We believe that technology provides a solution to many of the questions and concerns about cases involving large numbers of victims. And the ''compelling interest'' standard for exceptions would still allow for exceptions when the alternative would be an impossible administrative burden.
At the same time we also support, as a necessary compromise to achieve sufficient support for the amendment, limiting the scope of the amendment to crimes of violence as that phrase would be defined by law. We believe that once rights for these victims are established in the Constitution they will ''lift the tide'' for all victims.
Issue 5
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''. . . Section 2 invites the reopening of completed criminal cases to revisit the issue of restitution. . . . Section 2 of H. J. Res. 64 is overly broad and would unduly disrupt the finality of sentences.''
The Statement favors deleting ''or restitution'' from the second sentence of Section 2 which reads:
Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling, except with respect to conditional release or restitution or to provide rights guaranteed by this article in future proceedings, without staying or continuing a trial.
Such an change would leave the curious anomaly that while the Constitution established a right to restitution from the convicted offender, if a court failed to honor and protect the right with an order of restitution, there would be nothing the victim could do to remedy the violation. Surely the Department cannot mean this. Again the real experience in Arizona contradicts the hypothetical parade of horribles (at p. 8) the Department offers in support of the proposed change. These problems have simply never surfaced in almost a decade of experience.
Thank you again for the opportunity to submit these additional views. We stand ready to work with you and the full committee as you undertake the important job of considering action on H. J. Res. 44. We hope you will move to a mark-up soon. The rights we propose ought to be the birthright of every American, they will not infringe on the fundamental rights of defendants, they will only be respected when they are in our Supreme Law, and, as evidenced by all the state votes to date, they will be enthusiastically received by the people of this country.
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Very Truly yours
STATE CONSTITUTIONAL AMENDMENTS
ALABAMA
Alabama is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Alabama passed a constitutional amendment in both houses during the summer of 1994. The amendment was ratified in November with 70% of the voters in favor of the amendment.
That amendment reads as follows:
Amendment 557
(a) Crime victims, as defined by law 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 authorized, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the person accused of committing the crime.
(b) Nothing in this amendment or in any enabling statute adopted pursuant to this amendment shall be construed as creating a cause of action against the state or any of its agencies, officials, employees, or political subdivisions. The legislature may from time to time enact enabling legislation to carry out and implement this amendment.
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ALASKA
Alaska is one of thirty-one states that have amended their constitutions to include rights for crime victims.
The amendment passed in the Alaska legislature in the Spring of 1994; it was ratified in November with an 87% voter approval.
The amendment, which changed one section of the constitution and added another, reads as follows:
ARTICLE 1, SECTION 12. CRIMINAL ADMINISTRATION.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Criminal administration shall be based upon the following:
the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.
ARTICLE 2, SECTION 24. RIGHTS OF CRIME VICTIMS.
Crime victims, as defined by law, shall have the following rights as provided by law:
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the right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court;
the right to confer with the prosecution;
the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process;
the right to timely disposition of the case following the arrest of the accused;
the right to obtain information about and be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present;
the right to be allowed to be heard, upon request, at sentencing, before or after conviction or juvenile adjudication, and at any proceeding where the accused's release from custody is considered;
the right to restitution from the accused; and
the right to be informed, upon request, of the accused's escape or released from custody before or after conviction or juvenile adjudication.
ARIZONA
Arizona is one of thirty-one states that have amended their constitution to include rights for crime victims.
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A state coalition of victims' rights organizations began a citizens' initiative in 1988 to qualify the amendment for the November 1990 ballot. The amendment received support from 58% of the voters and was passed into law in 1990.
The amendment reads as follows:
ARTICLE II, SECTION 2.1
Victims' Bill of Rights
(A) To preserve and protect victims' rights to justice and due process, a victim of crime has a right:
1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
2. To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
3. To be present at, and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
4. To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.
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5. To refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant.
6. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
7. To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.
8. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.
9. To be heard at any proceeding when any post-conviction release from confinement is being considered.
10. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
11. To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.
12. To be informed of victims' constitutional rights.
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(B) A victims' exercise of any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.
(C) ''Victim'' means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative except if the person is in custody for an offense or is the accused.
(D) The legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.
(E) The enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the legislature or retained by victims.
CALIFORNIA
California is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Proposition 8 the Victims' Bill of Rights was ratified by voters in 1982.
The amendment reads as follows:
ARTICLE I, SECTION 28.
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Victims' Bill of Rights.
(a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance. Such public safety extends to public primary, elementary, junior high, and senior high school campuses, where students and staff have the right to be same and secure in their persons. To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.
(b) Restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution form the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.
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(c) Right to Safe Schools. All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful.
(d) Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offenses, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.
(e) Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offenses charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety shall be the primary consideration.
A person may be released on his or her own recognizance in the court's discretion, subject to the same factors considered in setting bail. However, a person charged with the commission of any serious felony shall be released on his or her own recognizance.
Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney shall be given notice and reasonable opportunity to be heard on the matter. When a judge or magistrate grants or denies bail or release on a person's own recognizance, the reasons for that decision shall be stated in the record and included in the court's minutes.
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Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proved to the trier of fact in open court.
As used in this article, the term ''serious felony'' is any crime defined in Penal Code, Section 1192.7(c).
COLORADO
Colorado is one of thirty-one states that have amended their constitutions to include rights for crime victims.
During the 1991 National Crime Victims' Rights Week, supporters kicked off the Colorado campaign to pass a constitutional amendment. Two weeks later, the amendment had passed both the Senate and the House, and was signed by the Governor. Comprehensive enabling legislation was also passed in 1992. The amendment was ratified with support from 86% of voters in the November 1992 General Election.
The amendment reads as follows:
ARTICLE II, SECTION 16a.
RIGHTS OF CRIME VICTIMS.
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Any person who is a victim of a criminal act, or such person's designee, legal guardian, or surviving immediate family members if such person is deceased, shall have the right to be heard when relevant, informed, and present at all critical stages of the criminal justice process. All terminology, including the term ''critical stages'', shall be defined by the General Assembly.
CONNECTICUT
Connecticut is one of thirty-one states that have amended their constitutions to include rights for crime victims. The Amendment was ratified by 78.5% of the voters.
ARTICLE XXIX of the Amendments of the Connecticut Constitution:
In all criminal prosecutions, a victim, as the General Assembly may define by law, shall have the following rights:
(1) The right to be treated with fairness and respect throughout the criminal justice process;
(2) The right to timely disposition of the case following arrest of the accused, provided no right of the accused is abridged;
(3) The right to be reasonably protected from the accused throughout the criminal justice process;
(4) The right to notification of court proceedings;
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(5) the right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person's testimony would be materially affected if such person hears other testimony;
(6) The right to communicate with the prosecution;
(7) The right to object to or support any plea agreement entered into by the accused and the prosecution and to make a statement to the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the accused;
(8) The right to make a statement to the court at sentencing;
(9) The right to restitution which shall be enforceable in the same manner as any other cause of action or as otherwise provided by law; and
(10) The right to information about the arrest, conviction, sentence, imprisonment and release of the accused.
The General Assembly shall provide by law for the enforcement of this subsection. Nothing in this subsection or in any law enacted pursuant to this subsection shall be construed as creating a basis for vacating a conviction or ground for appellate relief in any criminal case.
FLORIDA
Florida is one of thirty-one states that have amended their constitutions to include rights for crime victims.
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The state legislature passed the amendment during the 1987 legislative session, which was ratified by 90% of the voters during the 1988 November General Election.
The amendment reads as follows:
ARTICLE I, SECTION 16.
RIGHTS OF ACCUSED AND OF VICTIMS.
(a) [pertains to rights of the accused]
(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.
IDAHO
Idaho is one of thirty-one states that have amended their constitutions to include rights for crime victims.
The amendment was ratified in November of 1994 with 79% of the voters in favor of the amendment.
The amendment reads as follows:
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ARTICLE 1, SECTION 22
RIGHTS OF CRIME VICTIMS.
A crime victim, as defined by statute, has the following rights:
(1) To be treated with fairness, respect, dignity and privacy throughout the criminal justice process.
(2) To timely disposition of the case.
(3) To prior notification of trial court, appellate and parole proceedings and, upon request, to information about the sentence, incarceration and release of the defendant.
(4) To be present at all criminal justice proceedings.
(5) To communicate with the prosecution.
(6) To be heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration or release of the defendant, unless manifest injustice would result.
(7) To restitution, as provided by law, from the person committing the offense that caused the victim's loss.
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(8) To refuse an interview, ex parte contact, or other request by the defendant, or any other person acting on behalf of the defendant, unless such request is authorized by law.
(9) To read presentence reports relating to the crime.
(10) To the same rights in juvenile proceedings, where the offenses is a felony if committed by an adult, as guaranteed in this section, provided that access to the social history report shall be determined by statute.
Nothing in this section shall be construed to authorize a court to dismiss a case, to set aside or void a finding of guilt or an acceptance of a plea of guilty, or to obtain appellate, habeas corpus, or other relief from any criminal judgment, for a violation of the provisions of this section; nor be construed as creating a cause of action for money damages, costs or attorney fees against the state, a county, a municipality, any agency, instrumentality or person; nor be construed as limiting any rights for victims previously conferred by statute.
This section shall be self-enacting. The legislature shall have the power to enact laws to define, implement, preserve, and expand the rights guaranteed to victims in the provisions of this section.
ILLINOIS
Illinois is one of thirty-one states that have amended their constitutions to include rights for crime victims.
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A strong coalition succeeded in getting a victims' rights amendment introduced and passed during the 1992 legislative session. Illinois voters overwhelmingly supported constitutional rights for crime victims with 77% of the vote in the 1992 November General Election.
The amendment reads as follows:
Article 1, Section 8.1
CRIME VICTIM'S RIGHTS
(a) Crime victims, as defined by law, shall have the following rights as provided by law:
(1) The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
(2) The right to notification of court proceedings.
(3) The right to communicate with the prosecution.
(4) The right to make a statement to the court at sentencing.
(5) The right to information about the conviction, sentence, imprisonment, and release of the accused.
(6) The right to timely disposition of the case following the arrest of the accused;
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(7) The right to be reasonably protected from the accused throughout the criminal justice process.
(8) The right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.
(9) The right to have present at all court proceedings, subject to the rules of evidence, an advocate or other support person of the victim's choice.
(10) The right to restitution.
(b) The General Assembly may provided by law for the enforcement of this Section.
(c) The General Assembly may provide for an assessment against convicted defendants to pay for crime victims' rights.
(d) Nothing in this Section or in any law enacted under this Section shall be construed as creating a basis for vacating a conviction or a ground for appellate relief in any criminal case.
INDIANA
Indiana is one of thirty-one states that have amended their constitutions to include rights for crime victims—during the November 1996 elections, where the amendment received 89% voter approval.
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The Amendment reads as follows:
Article 1, Section 13 (b)
Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.
KANSAS
Kansas is one of thirty-one states that have amended their constitutions to include rights for crime victims. Its constitutional amendment was ratified by 84% of the voters in the 1992 November General Election.
The amendment reads as follows:
ARTICLE 15, SECTION 15
VICTIMS' RIGHTS.
(a) Victims of crime as defined by law shall be entitled to certain basic rights, including the right to be informed of and to be present at, public hearings, as defined by law, of the criminal justice process, and to be heard at sentencing or at any other time deemed appropriate by the court, to the extent that these rights do not interfere with the constitutional rights of the accused.
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(b) Nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality, or any of the agencies, instrumentalities, or employees thereof. The legislature may provide for other remedies to insure adequate enforcement of this section.
(c) Nothing in this section shall be construed to authorize a court to set aside or to void a finding of guilt or innocence or an acceptance of a plea of guilty or to set aside any sentence imposed in any criminal case.
LOUISIANA
Louisiana is one of thirty-one states with constitutional protections for victims' rights. In October of 1998, Louisiana voters ratified the following constitutional amendment with 68% of the vote.
Article I, Section 25
A person who is a victim of crime shall be treated with fairness, dignity, and respect, and shall be informed of the rights accorded under this Section. As defined by law, a victim of crime shall have the right to reasonable notice and to be present and heard during all critical stages of preconviction and postconviction proceedings; the right to be informed upon the release from custody or the escape of the accused or the offender; the right to confer with the prosecution prior to final disposition of the case; the right to refuse to be interviewed by the accused or a representative of the accused; the right to review and comment upon the presentence report prior to imposition of sentence; the right to seek restitution; and the right to a reasonably prompt conclusion of the case. The legislature shall enact laws to implement this Section. The evidentiary and procedural laws of this state shall be interpreted in a manner consistent with this Section.
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Nothing in this Section shall inure to the benefit of an accused or to confer upon any person the right to appeal or seek supervisory review of any judicial decision made in a criminal proceeding. Nothing in this Section shall be the basis for an award of costs or attorney fees, for the appointment of counsel for a victim, or for any cause of action for compensation or damages against the state of Louisiana, a political subdivision, a public agency, or a court, or any officer, employee, or agent thereof. Remedies to enforce the rights enumerated in this Section shall be provided by law.
MARYLAND
Maryland is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Maryland passed its constitutional amendment during the 1994 Spring session, and it received 92% of the vote in the November 1994 general election.
The amendment reads as follows:
ARTICLE 47.
(A) A victim of crime shall be treated by agents of the state with dignity, respect, and sensitivity during all phases of the criminal justice process.
(B) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceedings, as these rights are implemented and the terms ''crime'', ''criminal justice proceeding'', and ''victim'' are specified by law.
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(C) Nothing in this Article permits any civil cause of action for monetary damages for violation of any of its provisions or authorizes a victim of crime to take any action to stay a criminal justice proceeding.
MICHIGAN
Michigan is one of thirty-one states that have amended their constitutions to include rights for crime victims.
The amendment, submitted by Representative Bill Van Regenmorter, was passed by the state legislature during the 1988 session, and won an overwhelming 80% voter approval in the November 1988 General Election.
The amendment reads as follows:
ARTICLE I, SECTION 24.
RIGHTS OF CRIME VICTIM; ENFORCEMENT; ASSESSMENT AGAINST CONVICTED DEFENDANTS.
(1) Crime victims, as defined by law, shall have the following rights, as provided by law:
The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
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The right to timely disposition of the case following the arrest of the accused.
The right to be reasonably protected from the accused throughout the criminal justice process.
The right to notification of court proceedings.
The right to attend trial and all other court proceedings the accused has the right to attend.
The right to confer with the prosecution.
The right to make a statement to the court at sentencing.
The right to restitution.
The right to information about the conviction, sentence, imprisonment, and release of the accused.
(2) The legislature may provided by law for the enforcement of the section.
(3) The legislature may provided for an assessment against convicted defendants to pay for crime victims' rights.
MISSISSIPPI
Mississippi is one of thirty-one states that have amended their constitutions to include rights for crime victims. Mississippi voters ratified the amendment in the November 1998 election with 93% of the vote.
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The amendment reads as follows:
Section 26A.
(1) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings.
(2) Nothing in this section shall provide grounds for the accused or convicted offender to obtain any form of relief nor shall this section impair the constitutional rights of the accused. Nothing in this section or any enabling statute shall be construed as creating a cause of action for damages against the state or any of its agencies, officials, employees or political subdivisions.
(3) The Legislature shall have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.
MISSOURI
Missouri is one of thirty-one states that have amended their constitutions to include rights for crime victims.
An amendment introduced during the 1990 legislative session was passed by the House of Representatives, but failed to pass out of the Senate by the end of the legislative session. It was successfully reintroduced and passed during the 1991 legislative session. In the General Election of 1992, 84% of Missouri voters supported passage of the constitutional amendment.
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The amendment reads as follows:
ARTICLE I, SECTION 32
1. Crime victims, as defined by law, shall have the following rights, as defined by law:
(1) The right to be present at all criminal justice proceedings at which the defendant has such right, including juvenile proceedings where the offense would have been a felony if committed by an adult;
(2) Upon request of the victim, the right to be informed of and heard at guilty pleas, bail hearings, sentencings, probation revocation hearings, and parole hearings, unless in the determination of the court the interests of justice require otherwise;
(3) The right to be informed of trials and preliminary hearings;
(4) The right to restitution, which shall be enforceable in the same manner as any other civil cause of action, or as otherwise provided by law;
(5) The right to the speedy disposition and appellate review of their cases, provided that nothing in this subdivision shall prevent the defendant from having sufficient time to prepare his defense;
(6) The right to reasonable protection from the defendant or any person acting on behalf of the defendant;
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(7) The right to information concerning the escape of an accused from custody or confinement, the defendant's release and scheduling of the defendant's release from incarceration; and
(8) The right to information about how the criminal justice system works, the rights and the availability of services, and upon request of the victim the right to information about the crime.
2. Notwithstanding section 20 of article I of this Constitution, upon a showing that the defendant poses a danger to a crime victim, the community, or any other person, the court may deny bail or may impose special conditions which the defendant and surety must guarantee.
3. Nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality, or any of the agencies, instrumentalities, or employees provided that the General Assembly may, by statutory enactment, reverse, modify, or supersede any judicial decision or rule arising from any cause of action brought pursuant to this section.
4. Nothing in this section shall be construed to authorize a court to set aside or to void a finding of guilt, or an acceptance of a plea of guilty in any criminal case.
5. The general assembly shall have power to enforce this section by appropriate legislation.
MONTANA
Unlike thirty-one other states, Montana does not have a victims' rights amendment to its constitution. However, in November of 1998, 71% of Montana voters approved a constitutional amendment broadening the purposes of the criminal justice system, to include restitution to the crime victim.
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The amendment reads as follows:
Article II, Section 28
Criminal justice policy—rights of the convicted.
(1) Laws for the punishment of crime shall be founded on the principles of prevention, reformation, public safety, and restitution for victims.
(2) [relates to rights of the defendants]
NEBRASKA
Nebraska is one of thirty-one states that have amended their constitutions to include rights for crime victims. The amendment was passed in Nebraska's unicameral legislature in 1995 and was ratified by the voters in May of 1997, with 78% of the voters in support.
The amendment reads as follows:
Article I, Section 28
(1) A victim of a crime, as shall be defined by law, or his or her guardian or representative shall have: The right to be informed of all criminal court proceedings; the right to be present at trial unless the trial court finds sequestration necessary for a fair trial for the defendant; and the right to be informed of, be present at, and make an oral or written statement at sentencing, parole, pardon, commutation, and conditional release proceedings. This enumeration of certain rights for crime victims shall not be construed to impair or deny others provided by law or retained by crime victims.
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(2) The legislature shall provide by law for the implementation of the rights granted in this section. There shall be no remedies other than as specifically provided by the Legislature for the enforcement of the rights granted by this section.
(3) Nothing in this section shall constitute a basis for error in favor of a defendant in any criminal proceeding, a basis for providing standing to participate as a party to any criminal proceeding, or a basis to contest the disposition of any charge.
NEVADA
Nevada is one of thirty-one states that have amended their constitutions to include rights for crime victims—during the November 1996 elections with 74.3% of the vote.
Article 1, Section 8
1. [Pertains to the rights of the defendant]
2. The legislature shall provide by law for the rights of victims of crime, personally or through a representative, to be:
(a) Informed, upon written request, of the status or disposition of a criminal proceeding at any stage of the proceeding; (b) Present at all public hearings involving the critical stages of a criminal proceeding; and (c) Heard at all proceedings for the sentencing or release of a convicted person after trial.
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3. Except as otherwise provided in subsection 4, no person may maintain an action against the state or any public officer or employee for damages or injunctive, declaratory or other legal or equitable relief on behalf of a victim of a crime as a result of a violation of any statute enacted by the legislature pursuant to subsection 2. No such violation authorizes setting aside a conviction or sentence or continuing or postponing a criminal proceeding.
4. A person may maintain an action to compel a public officer or employee to carry out any duty required by the legislature pursuant to subsection 2.
NEW JERSEY
New Jersey is one of thirty-one states that have amended their constitutions to include rights for crime victims.
The amendment was passed by the New Jersey legislature and ratified by the voters in November, 1991. The amendment received the support of 85% of the voters.
The amendment reads as follows:
ARTICLE I, PARAGRAPH 22.
A victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system, shall not be denied the right to be present at public judicial proceedings except when properly sequestered in accordance with law or Court Rule prior to completing his or her testimony as a witness, and shall be entitled to those rights and remedies as may be provided by the Legislature. For the purposes of this paragraph, the phrase ''victim of a crime'' shall mean: a) a person who has suffered physical or psychological injury or has incurred loss of or damage to personal or real property as a result of a crime or an incident involving another person operating a motor vehicle while under the influence of drugs or alcohol, and b) the spouse, parent, legal guardian, grandparent,child or sibling of the decedent in the case of a criminal homicide.
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NEW MEXICO
New Mexico iis one of thirty-one states that have amended their constitutions to include rights for crime victims. An amendment was ratified by the voters in 1992, receiving 68% of the vote. The Amendment reads as follows:
Sec. 24. [Crime victims' rights.]
A. A victim of arson resulting in bodily injury, aggravated arson, aggravated assault, aggravated battery, dangerous use of explosives, negligent use of a deadly weapon, murder, voluntary manslaughter, involuntary manslaughter, kidnapping, criminal sexual penetration, criminal sexual contact of a minor, homicide by vehicle, great bodily injury by vehicle or abandonment or abuse of a child or that victim's representative shall have the following rights as provided by law:
1. the right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process;
2. the right to timely disposition of the case;
3. the right to be reasonably protected from the accused throughout the criminal justice process;
4. the right to notification of court proceedings;
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5. the right to attend all public court proceedings the accused has the right to attend;
6. the right to confer with the prosecution;
7. the right to make a statement to the court at sentencing and at any post-sentencing hearings for the accused;
8. the right to restitution from the person convicted of the criminal conduct that caused the victim's loss or injury;
9. the right to information about the conviction, sentencing, imprisonment, escape or release of the accused;
10. the right to have the prosecuting attorney notify the victim's employer, if requested by the victim, of the necessity of the victim's cooperation and testimony in a court proceeding that may necessitate the absence of the victim from work for good cause; and
11. the right to promptly receive any property belonging to the victim that is being held for evidentiary purposes by a law enforcement agency or the prosecuting attorney, unless there are compelling evidentiary reasons for retention of the victim's property.
B. A person accused or convicted of a crime against a victim shall have no standing to object to any failure by any person to comply with the provisions of Subsection A of Section 24 of Article 2 of the constitution of New Mexico.
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C. The provisions of this amendment shall not take effect until the legislature enacts laws to implement this amendment.
NORTH CAROLINA
North Carolina is one of thirty-one states that have amended their constitutions to include rights for crime victims. In 1996, voters in North Carolina ratified a state victims' constitutional amendment with 78% of the vote.
The Amendment reads as follows:
Article 1, Section 37
(1) Basic Rights. Victims of crime, as prescribed by law, shall be entitled to the following basic rights:
(a) The right as prescribe by law to be informed of and to be present at court proceedings of the accused.
(b) The right to be heard at sentencing of the accused in a manner prescribed by law, and at other times as prescribed by law or deemed appropriate by the court.
(c) The right as prescribed by law to receive restitution.
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(d) The right as prescribed by law to be given information about the crime, how the criminal justice system works, the rights of victims, and the availability of services for victims.
(e) The right as prescribed by law to receive information about the conviction or final disposition and sentence of the accused.
(f) The right as prescribed by law to receive notification of escape, release, proposed parole or pardon of the accused, or notice of a reprieve or commutation of the accused's sentence.
(g) The right as prescribed by law to present their views and concerns to the Governor or agency considering any action that could result in the release of the accused, prior to such action becoming effective.
(h) The right as prescribed by law to confer with the prosecution.
(2) No money damages; other enforcement. Nothing in this section shall be construed as creating a claim of money damages against the State, a county, a municipality, or any of the agencies, instrumentalities, or employees thereof. The General Assembly may provide for other remedies to ensure adequate enforcement of this section.
(3) No ground for relief in criminal case. The failure of inability of any person to provide a right or service provided under this section may not be used by a defendant in a criminal case, an inmate, or any other accused as a ground for relief in any trial, appeal, post-conviction litigation, habeas corpus, civil action, or any similar criminal or civil proceeding.
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OHIO
Ohio is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Ohio passed amendment in both houses of the legislature during the summer of 1994. The amendment was ratified in November of 1994 with 77% voter-approval.
The amendment reads as follows:
ARTICLE I, SECTION 10a
Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the General Assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process. This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this Constitution, and does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any political subdivision, or any officer of the court.
OKLAHOMA
Oklahoma is one of thirty-one states that have amended their constitutions to include rights for crime victims.
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Voters in Oklahoma ratified a state victims' rights constitutional amendment during the November 1996 elections with 91% of the vote.
The amendment reads as follows:
Article II, Section 34. A. To preserve and protect the rights of victims to justice and due process and ensure that victims are treated with fairness, respect and dignity and are free from intimidation, harassment or abuse, throughout the criminal justice process, any victim or family member of a victim of a crime has the right to know the status of the investigation and prosecution of the criminal case, including all proceedings wherein a disposition of a case is likely to occur, and where plea negotiations may occur. The victim or family member of a victim of a crime has the right to know the location of the defendant following an arrest, during a prosecution of the criminal case, during a sentence to probation or confinement, and when there is any release or escape of the defendant from confinement. The victim or family member of a victim of a crime has a right to be present at any proceeding where the defendant has a right to be present, to be heard at any sentencing or parole hearing, to be awarded restitution by the convicted person for damages or losses as determined and ordered by the court, and to be informed by the state of the constitutional rights of the victim.
B. An exercise of any right by a victim or family member of a victim or the failure to provide a victim or family member of a victim any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.
C. The Legislature, or the people by initiative or referendum, has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings and if enacted by the Legislature, youthful offender proceedings.
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D. The enumeration in the Constitution of certain rights for victims shall not be construed to deny or disparage other rights granted by the Legislature or retained by victims.
OREGON
Voters in Oregon ratified a crime victims' rights amendment to that state's constitution in 1996. The amendment received 59% of the vote. However, the amendment was invalidated by the Oregon Supreme Court in 1998, on the grounds that the amendment combined several distinct constitutional amendments that should have been voted on separately. Oregon advocates quickly proposed a new amendment, which was ratified by the voters in 1999 with 58% support.
The Constitution of the State of Oregon is amended by creating a new section to be added to and made a part of Article I, such section to read:
(1) To preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due dignity and respect and to ensure that criminal and juvenile court delinquency proceedings are conducted to seek the truth as to the defendant's innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal and juvenile court delinquency proceedings, the following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings:
(a) The right to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition;
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(b) The right, upon request, to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender;
(c) The right to refuse an interview, deposition or other discovery request by the criminal defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraph shall restrict any other constitutional right of the defendant to discovery against the state;
(d) The right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury;
(e) The right to have a copy of a transcript of any court proceeding in open court, if one is otherwise prepared;
(f) The right to be consulted, upon request, regarding plea negotiations involving any violent felony; and
(g) The right to be informed of these rights as soon as practicable.
(2) This section applies to all criminal and juvenile court delinquency proceedings pending or commenced on or after the effective date of this section. Nothing in this section reduces a criminal defendant's rights under the Constitution of the United States. Except as otherwise specifically provided, this section supersedes any conflicting section of this Constitution. Nothing in this section is intended to create any cause of action for compensation or damages nor may this section be used to invalidate an accusatory instrument, ruling of a court, conviction or adjudication or otherwise suspend or terminate any criminal or juvenile delinquency proceedings at any point after the case is commenced or on appeal.
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(3) As used in this section:
(a) 'Convicted criminal' includes a youth offender in juvenile court delinquency proceedings.
(b) 'Criminal defendant' includes an alleged youth offender in juvenile court delinquency proceedings.
(c) 'Victim' means any person determined by the prosecuting attorney to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. In the event that no person has been determined to be a victim of the crime, the people of Oregon, represented by the prosecuting attorney, are considered to be the victims. In no event is it intended that the criminal defendant be considered the victim.
(d) 'Violent felony' means a felony in which there was actual or threatened serious physical injury to a victim or a felony sexual offense.
SOUTH CAROLINA
South Carolina is one of thirty-one states that have amended their constitutions to include rights for crime victims. Voters in South Carolina ratified a victims' rights constitutional amendment during the November 1996 elections with 89.8% of the vote.
The amendment reads as follows:
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Article 1, Section 24
(A) To preserve and protect victims' rights to justice and due process regardless of race, sex, age, religion or economic status, victims of crime have the right to:
(1) be treated with fairness, respect and dignity , and to be free from intimidation, harassment or abuse throughout the criminal and juvenile justice process, and to be informed of the victim's constitutional rights, provided by statute;
(2) be reasonably informed when the accused or convicted person is arrested, released from custody or has escaped;
(3) be informed of and present at any criminal proceedings which are dispositive of the charges where the defendant has the right to be present;
(4) be informed of and be allowed to submit either a written oral statement at all hearings affecting bond or bail;
(5) be heard at any proceeding involving a post-arrest release decision, a plea or sentencing;
(6) be reasonably protected from the accused or persons acting on his behalf throughout the criminal justice process;
(7) confer with prosecution, after the crime against the victim has been changed, before the trial or before any disposition and informed of the disposition;
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(8) have reasonable access after the conclusion of the criminal investigation to all documents relating to the crime against the victim before trial;
(9) receive prompt and full restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury including both adult and juvenile offenders;
(10) be informed of any proceeding when any post-conviction action is being considered, and be present at any post-conviction hearing involving a post-conviction release decision;
(11) a reasonable disposition and prompt and final conclusion of the case;
(12) have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and have these rules subject to amendment or repeal by the legislature to ensure protection of these rights.
(B) Nothing in this section creates a civil cause of action on behalf of any person against any public employee, public agency, the State or any agency responsible for the enforcement of rights and provision of services contained in this section. The rights created in this section may be subject to a writ of mandamus, to be issued by any justice of the Supreme Court or Circuit Court judge to require compliance by any public employee, public agency, the State, or any agency responsible for the enforcement of the rights and provisions of these services contained in this section, and a wilful failure to comply with a writ of mandamus is punishable as contempt.
For purposes of this section:
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(1) A victim's exercise of any right granted by this section is not grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.
(2) ''Victim'' means a person who suffers direct or threatened physical, psychological or financial harm as the result of the commission or attempted commission of a crime against him. The term ''victim'' also includes the person's spouse, parent, child or lawful representative of a crime victim who is deceased, who is a minor or who is incompetent or who was a homicide victim or who is physically or psychologically incapacitated.
(3) The General Assembly has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.
(4) The enumeration in the Constitution of certain rights for victims shall not be construed to deny or disparage others granted by the General Assembly or retained by victims.
TENNESSEE
Tennessee is one of thirty-one states that have amended their constitutions to include rights for crime victims. Voters gave final approval to the amendment in November of 1998, with 89% of the voters ''for'' the amendment.
The amendment added the following language to Article 1 of the Constitution as a new section:
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To preserve and protect the rights of victims of crime to justice and due process, victims shall be entitled to the following basic rights:
1. The right to confer with the prosecution.
2. The right to be free from intimidation, harassment and abuse throughout the criminal justice system.
3. The right to be present at all proceedings where the defendant has the right to be present.
4. The right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly.
5. The right to be informed of all proceedings, and of the release, transfer or escape of the accused or convicted person.
6. The right to a speedy trial or disposition and a prompt and final conclusion of the case after the conviction or sentence.
7. The right to restitution from the offender.
8. The right to be informed of each of the rights established for victims.
The General Assembly has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.
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BE IT FURTHER RESOLVED, That the General Assembly has the authority to enact laws to provide that a judge, attorney for the state, law enforcement officer or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section.
BE IT FURTHER RESOLVED, That the failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal, new trial, post-conviction relief or habeas corpus nor shall it be construed to authorize a court to set aside, reverse, vacate or void a finding of guilt, or an acceptance of a plea of guilty in any criminal case.
BE IT FURTHER RESOLVED, That nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality, or any of the agencies, instrumentalities, or employees thereof. The General Assembly has the authority to provide for other remedies to ensure adequate enforcement of this section.
TEXAS
Texas is one of thirty-one states that have amended their constitutions to include rights for crime victims.
The amendment was submitted and passed during the 1989 legislative session, and ratified by 73% of the voters in November of 1989.
The amendment reads as follows:
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ARTICLE 1, SECTION 30
RIGHTS OF CRIME VICTIMS.
(a) A crime victim has the following rights:
(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and
(2) the right to be reasonably protected from the accused throughout the criminal justice process.
(b) On the request of a crime victim , the crime victim has the following rights:
(1) the right to notification of court proceedings;
(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim bears other testimony at the trial;
(3) the right to confer with a representative of the prosecutor's office;
(4) the right to restitution; and
(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.
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(c) The legislature may enact laws to define the term ''victim'' and to enforce these and other rights of crime victims.
(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.
(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal of post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.
UTAH
Utah is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Utah passed its constitutional amendment in both the house and senate in March 1994. The amendment was ratified by the voters in November with 68% in favor of the amendment.
The amendment reads as follows:
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ARTICLE I, SECTION 28
DECLARATION OF THE RIGHTS OF CRIME VICTIMS.
(1) To preserve and protect victims' rights to justice and due process, victims of crimes have these rights, as defined by law:
(a) To be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process;
(b) Upon request, to be informed of, be present at, and to be heard at important criminal justice hearings related to the victim, either in person or through a lawful representative, once a criminal information or indictment charging a crime has been publicly filed in court; and
(c) To have a sentencing judge, for the purpose of imposing an appropriate sentence, receive and consider, without evidentiary limitation, reliable information concerning the background, character and conduct of a person convicted of an offense except that this subsection does not apply to capital cases or situations involving privileges.
(2) Nothing in this section shall be construed as creating a cause of action for money damages, costs, or attorney's fees, or for dismissing any criminal charge, or relief from any criminal judgment.
(3) The provisions of this section shall extend to all felony crimes and such other crimes or acts, including juvenile offenses, as the Legislature may provide.
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(4) The Legislature shall have the power to enforce and define this section by statute.
VIRGINIA
Virginia is one of thirty-one states that have amended their constitutions to include rights for crime victims. Voters in Virginia ratified a state victims' rights constitutional amendment during the November 1996 elections with 84.2% of the vote.
The amendment reads as follows:
Article I, Section 8-A
Rights of victims of crime. That in criminal prosecutions, the victim shall be accorded fairness, dignity and a respect by the officers, employees and agents of the Commonwealth and its political subdivisions and officers of the courts and, as the General Assembly may define and provide by law, may be accorded rights to reasonable and appropriate notice, information, restitution, protection, and access to a meaningful role in the criminal justice process. These rights may include, but not be limited to, the following:
1. The right to protection from further harm or reprisal through the imposition of appropriate bail and conditions of release;
2. The right to be treated with respect, dignity and fairness at all stages of the criminal justice system;
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3. The right to address the circuit court at the time sentence is imposed;
4. The right to receive timely notification of judicial proceedings;
5. The right to restitution;
6. The right to be advised of release from custody or escape of the offender, whether before or after disposition; and
7. The right to confer with the prosecution.
This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this Constitution, and does not create any cause of action for compensation or damages against the Commonwealth or any of its political subdivisions, any officer, employee or agent of the Commonwealth or any of its political subdivisions, or any officer of the court.
WASHINGTON
Washington is one of thirty-one states that have amended their constitutions to include rights for crime victims.
Submitted by Attorney General Eikenberry, the amendment was passed by the 1989 legislature and ratified by 78% of voters in November 1989.
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The amendment reads as follows:
ARTICLE 2, SECTION 35
RIGHTS OF CRIME VICTIMS.
Effective law enforcement depends on cooperation from victims of crime. To ensure victims a meaningful role in the criminal justice system and to accord them due dignity and respect, victims of crime are hereby granted the following basic and fundamental rights.
Upon notifying the prosecuting attorney, a victim of a crime charged as a felony shall have the right to be informed of and, subject to the discretion of the individual presiding over the trial or court proceedings, attend trial and all other court proceedings the defendant has the right to attend, and to make a statement at sentencing and at any proceeding where the defendant's release is considered, subject to the same rules of procedure which govern the defendant's rights. In the event the victim is deceased, incompetent, a minor, or otherwise unavailable, the prosecuting attorney may identify a representative to appear to exercise the victim's rights. This provision shall not constitute a basis for error in favor of a defendant in a criminal proceeding nor a basis for providing a victim or the victim's representative with court appointed counsel.
WISCONSIN
Wisconsin is one of thirty-one states that have amended their constitutions to include rights for crime victims.
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Wisconsin's amendment was ratified on April 6, 1993, and received the support of 84% of the electorate.
The amendment reads as follows:
ARTICLE I, SECTION 9m
Victims of crime.
This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law:
— timely disposition of the case;
— the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant;
— reasonable protection from the accused throughout the criminal justice process;
— notification of court proceedings;
— the opportunity to confer with the prosecution;
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— the opportunity to make a statement to the court at disposition;
— restitution;
— compensation;
— and information about the outcome of the case and the release of the accused.
The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.
Mr. CANADY. Thank you very much.
Mr. Fein.
STATEMENT OF BRUCE FEIN, FORMER ASSOCIATE DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, GREAT FALLS, VA
Mr. FEIN. I will be brief as a concession to the shortness of life here.
First, with regard to Mr. Madison, I think the presentation is counterhistorical. As you well know, it was Madison himself who explicitly excluded its application to any of the States, despite the alleged deficiencies in State constitutions, and John Marshall held in Baron v. Baltimore that the Bill of Rights had no application to the States. I think Madison would be shocked about this intrusion into State prerogatives if he saw this amendment.
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Secondly, with regard to my observation about trivializing the Constitution, it was no sense intended to be synonymous with trivializing the right. We have many fundamental rights that are enshrined in statutes. Perhaps the most famous—the 1964 Civil Rights Act or the 1965 Voting Rights Act—they are enshrined in statutes. The protection of labor under the National Labor Relations Act; the protection against gender discrimination in title IX of the 1972 Education Act Amendments. No one says we trivialized those rights simply because we did not elevate them to constitutional status. So I think that is a wrong attempt to conflate triviality with the necessity of having it recognized in the Constitution, as opposed to statute.
Now, let me address what I consider a specious argument, that there are somehow some constitutional barriers to doing by statute what this provision would propose to do by the Constitution. I defy anyone to marshall a single United States Supreme Court decision that would cast a cloud over any of these provisions if they were in statute. And indeed, virtually all of them are in one way or another, in either State law or in Federal statutory law.
It has been insinuated or perhaps more than that by the Department of Justice that perhaps permitting those victims of crime to be heard or submit a statement in conjunction with a presidential consideration of pardon would encroach upon the Article 2 pardon prerogative of the President of the United States. There is no citation of authority for that and we know that this administration's understanding of executive prerogative is somewhat inflated, as indicated by recent Supreme Court decisions. And I would rely on the Supreme Court rather than this dispensation handed up by President Clinton.
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With regard to the claim that the rights of victims ought to deserve the same parity in the Constitution as defendants because, after all, they have suffered, it seems to me that is misplaced for two reasons. Not only is it true that typically defendants who are charged with criminal are unpopular, not based upon some platonic theory but what we observe every day in life, that there are clamors for the oftentimes lynchings of people who are accused of crime, but it is also enshrined for an even more fundamental reason.
What is at stake for someone accused of a crime typically is his life or liberty—life in prison, perhaps capital punishment, a severe stigmatizing blow to reputation. If he is guilty, he is guilty, but that is what is at stake. That is why we are scrupulous and we require the government to turn square corners in those proceedings, as opposed to victims' rights, again not trivializing their harm and pain. But the fact is that those who equate a right to be notified that a trial may occur in which their personal liberty is not at stake with someone who is charged with a crime that could lead him to death—if you equate those two, I think you have lost balance and judgment that suggests you are not addressing the issue with evenhandedness.
Thirdly, it has been suggested that in the absence of victims' rights, somehow they become totally spectators on the scene. That is not true. There are civil lawsuits available for harm caused to the victim in every single case there is a crime. Most here in this room would remember the OJ Simpson proceedings that came after the criminal trial, in which, I believe, the judgment was something like $30 million award against him.
Insofar as public proceedings are needed to provide a healthy cathartic effect on the crime victim, we do have civil proceedings that are available in each and every case there is a crime. If there is a problem with providing attorney counsel because it is too expensive to sue and you could not likely collect on a judgment if you have an impoverished or pauperized defendant, then you could expand civil assistance programs at the Federal level to have the Legal Services Corporation that could provide counsel in such situations. But it simply is wrong to suggest that our legal system, if it does not recognize rights of victims to participate in the criminal process, suddenly shuts them out of the game.
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Third, why is it very useful to have the States participate in crafting their own victims' rights statutes or amendments, as opposed to the Federal Government? Well, it is important, it seems to me, for two reasons. Victims' rights do claim some resources that might otherwise be devoted otherwise in the criminal justice system. We can debate about whether it is large or small. Crime may be greater in one community than another and States ought to be in the business of balancing, as their citizens want, what kind of allocation of resources should go simply to the prosecution function, leaving to the civil justice system the attempt to remedy the personal harm to the victim, as opposed to giving perhaps more concern for the victims in the criminal proceeding, even if it slows down the situation somewhat, and maybe the crime problem is not as acute and they do not care whether or not the criminal system functions as expeditiously.
But there is an additional reason, it seems to me. Unless you have a clog in the political system that prevents it from functioning—you are dealing with a discrete insular minority; those are words that we all associate with the long, tragic years of Jim Crow when our black citizens were excluded from the process. How were they to seek political remedy for violation of their constitutional rights, such as the 15th amendment?
But in this case we are not confronting any clog in the political system. Everybody here has testified, including the champions of the amendment, how popular victims' rights is amongst politicians, that the idea of self-government at the local level is a very cherished one. That is one reason why we have our system of federalism. At the State level we want people to get out, participate, urge their rights. If the statute is not being enforced, go back, get teeth in the statute, provide liquidated damages. In many States, where prosecutors and judges are elected, vote them out of office if they are ignoring State law. That kind of political democracy is what gives vibrancy to our whole system of representative government that we do not want to die on the vine because the feds come in with a new amendment every time there seems to be some stickiness or problem at the State level that can be overcome through customary political processes. It does not mean you never intervene, but there ought to be a very high standard before a constitutional amendment trumps that process.
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It has often been asked, why are these State laws being ignored so often? Well, it seems to me it is largely a matter of legal culture. Victims' rights did not come into ascendancy until the last 10 or 15 or 20 years. We are dealing with judges, prosecutors who have been there for ages. You have old blood. Human nature makes them resistant to change. They ignore, they slight the statute, they do not want these vexing burdens that they have never confronted before. Everybody who has worked in big bureaucracies knows that oftentimes it goes from sclerosis to rigor mortis if you do not push it from time to time.
But the new prosecutors and judges are trained in a legal culture that recognizes victims' rights, either Supreme Court decisions like Payne in Tennessee saying you can have victims' impact statements in capital punishment or otherwise.
So this problem which is painful while it exists for those who find State victims' rights provisions ignored, it is going to solve itself over time. You hear that it is over 15 or 20 years and does that not show that it is never going to change? No. The law is backward-looking; it is very rigid; it takes a long time to inject a new way of thinking, a new legal culture.
I can give you an example with union rights. They were first recognized in the Clayton Act in 1914 in Federal law saying they should not be subject to anti-trust laws. Then the Norris LaGuardia Act came in to prevent injunctions of strikes and that was about 15, 20, 30 years. It was not really until the 1940's when these statutes began to be interpreted in ways that recognized some sympathy toward those who belonged to unions. That is simply the way that the law works. There is nothing unusual in seeing these victims' rights provisions perhaps honored too much in the breach than the observance.
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It has also been said, and I will conclude here, that somehow elevating these provisions to constitutional status will somehow have a more tutelary function on those who are commanded to comply, that viewing this in the Constitution, as opposed to the statute, makes them more willing to succumb to these new obligations.
Well, let me give you the first example where that happened. As you well know, right after the Civil War, the 1866 Civil Rights Act was passed granting citizenship to blacks and a whole host of other rights, privileges and immunities, and we know that the 14th amendment was enacted in large measure to raise the statutory rights of black citizens to constitutional status. I do not really need to say much more if we look from 1868, the 14th amendment, the 15th amendment 2 years later, and Jim Crow was a century. All those were enshrined in the United States Constitution as clear as could be. Did it do one whit to command obedience to the 1866 Civil Rights Law? No. And this idea that somehow you put this in the Constitution; it would be like suggesting suppose, instead of in the Constitution, we went further; we are going to amend the Old and the New Testament and the Holy Koran and give it papal infallibility; then suddenly people will comply. That is simply not true, based upon what we have observed in our own history.
Lastly, I would just say all of these kinds of amendments, it seems to me, need to be approached with great prudence. It is not out of disrespect for the ideas or policies behind the proponents but our Constitution is sacred, in part, because it is accessible. We do not have it overlengthy, overdetailed because we like the common citizen to be able to understand most of its provisions, have a grasp of what our basic policies are.
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If the standard in this case is lowered for victims' rights, I can see easily 200, 300 equally important rights that are not trivialized, like perhaps minimum wage, union rights, gender rights, would also escalate to constitutional status and we would have something that looks like War and Peace rather than something that more resembles the Gettysburg Address. Thank you.
[The prepared statement of Mr. Fein follows:]
PREPARED STATEMENT OF BRUCE FEIN, FORMER ASSOCIATE DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, GREAT FALLS, VA
Mr. Chairman and Members of the Subcommittee:
I am grateful for the opportunity to testify on a proposed amendment to the United States Constitution that would dictate an array of victims' rights in federal or state criminal proceedings, H.J. Res. 64. The motivation for the amendment is irreproachable: to guarantee crime victims a minimum opportunity to be heard or to be otherwise involved when the disposition of their predators is in question. But I oppose the amendment, at least at this time, for manifold reasons.
First, it seems gratuitous. Nothing in the Constitution or in United States Supreme Court precedents handcuffs either Congress or the States in fashioning victims' rights statutes. Indeed, both have already exercised that statutory authority. Federal and State victims' rights laws have become commonplaces. And that is no political surprise. Crime victims command almost
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universal sympathy; they are not some discrete and insular minority needing protection from the majoritarian features of legislation or referenda. The slogan, ''I voted against crime victims,'' is not likely to capture many ballots.
Some amendment proponents urge that state laws are disrespected or otherwise deficient. The first charge may have some truth. The law, prosecutors, and judges are generally backwardlooking. Innovation is resisted because they are creatures of habit and convenience. Victims' rights laws are relatively novel features in the criminal justice system. Those who were trained in an earlier legal culture instinctively shy from embracing the era of victims' rights. But they will die or retire, and be replaced by prosecutors and judges informed by the superceding victims' rights orthodoxies. The problem of inadequate enthusiasm for implementing state or federal laws will solve itself.
The charge of deficient victims' rights laws seems unpersuasive, simply a shorthand for complaining that everything demanded by the victims' rights lobby was not incorporated by various legislative bodies. If the complaint is sound, nothing in the political process suggests that remedies by amending the outstanding statutes will not be forthcoming; thus no federal constitutional amendment is required.
It might be said, however, that a constitutional amendment can do no harm, and, therefore, deserves ratification. But that turns the burden of proof on its head. The Constitution should never be amended except for compelling reasons. Amendments make the sacred document less accessible to ordinary citizen, and create the risk of counterproductive effects that were not foreseen, like the Prohibition Amendment, but which can only be cured by another amendment. Government is an art, not a science.
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Further, every amendment is a dent in our system of federalism. It removes an issue from the agendas of state governments which can more closely tailor solutions that satisfy their constituents and can serve as laboratories of learning for sister states and the federal government without risk to entire nation. Errors can be corrected by simple legislation, which is nimble compared to the supermajority constitutional amendment stipulations in Article V. Deference to state choice also offers citizens greater opportunities to receive the training and responsibilities of self-government vital to sustaining the culture of democracy. In sum, the Constitution should be left undisturbed absent a great and enduring need; it is not enough that an amendment would do no direct and lethal harm.
The substance of H.J. Res. 64 also seems defective in some respects. Section 1 endows each individual ''victim'' of a felony or crime of violence with various participatory rights. But nowhere is victim defined. Does it include relatives or friends of a murdered individual or creditors who will be unable to collect debts owing? The amendment is clueless.
The section also entitles each victim to be present at all public proceedings relating to the crime. But if a victim is a prospective witness, sequestration might be necessary to avoid distorted testimony influenced by previous witnesses. Moreover, in cases of mass crimes like the Oklahoma City bombing, a courtroom might lack space for all the victims. It is not clear that access via television would satisfy the proposed amendment.
Section 2 declares that only the ''victim or the victim's lawful representative'' shall enjoy standing to enforce the rights established by the amendment. There seem at least two difficulties. How is a victim's lawful representative determined? Is it his lawyer? Can it be a layperson? Can there be more than one lawful representative? Must the deputation be in writing? Can it be shown by oral testimony? If the victim is dead, is it his heirs, or the executor or administrator of his estate? The amendment does not even hint at answers.
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Section 1 seems to confer rights only on crime victims, not on their lawful representatives. Suppose the victim is dead. Does section 2 entitle his lawful representative to participatory section 1 rights that seem personal to the deceased, such as physical presence at public proceedings relating to the crime?
These problems and ambiguities are much more serious in a constitutional amendment than in a statute because an amending cure to staunch the flood of litigation they would generate would be much more arduous and protracted.
Finally, some insist on a victims' rights amendment to give victims a symbolic psychological boost by showing that the nation cares about their plight every bit as much as it cares about constitutional procedural safeguards for criminal defendants. But constitutional amendments should not be trivialized as complements to encounter group therapy. Additionally, criminal defendants are characteristically unpopular, and experience teaches they desperately need constitutional protection from majoritarian whims and prejudices. Crime victims, in contrast, suffer from no such political handicap.
In conclusion, prudence should be the touchstone for all constitutional amendments, and by that measure H.J. Res. 64 has nothing to commend.
Mr. CANADY. Thank you, Mr. Fein.
Professor Mosteller.
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STATEMENT OF ROBERT P. MOSTELLER, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NC
Mr. MOSTELLER. Chairman Canady, members of the Subcommittee on the Constitution, I very much appreciate this opportunity to testify today. I am here to urge you to oppose the proposed Victims' Rights Amendment and certainly to oppose it unless it is significantly revised. I will be brief in my comments. I attached to my prepared statement two recent law reveiw articles in which I set out a number of points that I think are important to be considered.
The amendment should not be adopted for a number of reasons, and I will highlight two today. First, it is quite simply unnecessary. The principal purpose of an amendment should be to protect the despised, the politically unpopular, and insular minorities from the whims of the political majority. As Mr. Fein has clearly laid out, that does not apply in this circumstance.
Moreover, an amendment should be used only when its purposes can be accomplished in no other way—in short, when it is necessary.
Let me focus on a major claim of the proponents—that a constitutional amendment is necessary to prevent the rights of victims from being trumped by those of the defendants. I went searching for those cases. I could not find them. So I challenge some of the major supporters of the amendment to find all existing appellate opinions anywhere in the United States in which a victim's right has been trampled and where the proposed amendment would provide the required cure.
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Such cases might fall into two categories: first, where a State statute, State's constitutional provision or a Federal statute protecting victims' rights has been declared invalid because it violated the defendant's Federal constitutional rights; and second, where a defendant's conviction was overturned on Federal constitutional grounds because a victim's rights provision was followed. If a constitutional amendment were really necessary, we would see a substantial body of those cases. I have not been shown a single one—not a single one—in either of these categories. This record clearly demonstrates lack of necessity.
We have heard today a number of times about a report. The report documents failures to follow established law. It does not set out trumping of rights by the defendant, trumping of victims' rights by the defendant.
Second, the label of victims' rights should not be used to eliminate basic procedural protections guaranteed to defendants. Such is simply not an appropriate goal of a constitutional amendment.
Let me give you an example where the amendment could violate basic fairness and help convict the innocent. Take the class of cases of police brutality. Unfortunately, such cases of brutality do occur. They all too often target racial minorities, and they challenge the integrity of our justice system.
Now take a more concrete example, the Rodney King case, but with one critical change. Take out the fortuity of the videotape that documented that it was King who was beaten and was the victim. And as we know, the officers who beat King, Rodney King, tried to charge him before inconvenient facts came out, including the videotape.
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I believe that the fairest reading of the provision of the amendment that guarantees victims the right not to be excluded is that all the police officers who have been labeled as victims by the prosecutor would be allowed to be in the courtroom and hear all the other prosecution witnesses as they remain in the courtroom. In the garden variety case, I believe it would not be enough simply to make the argument that they could collude by being present. The amendment thus would help the true perpetrators to coordinate their lies and thereby compound their original crime by convicting an innocent citizen. This is quite simply wrong.
What is the alternative? And there is an alternative. Among the courses I teach is evidence. There is a rule of evidence in the Federal system and in most States, Rule 615, sometimes called the rule on witnesses. A number of States have enacted a very clear exception to the ability to exclude a witness from a courtroom for victims, per se for victims. It works. In those States where it is in effect, it works. Also, some States have an alternative where they require the victim to testify first and then to remain in the courtroom. Other States have an option of giving special deference to victims at the discretion of the court.
All of these, evidence shows, work. They allow victims to be in the courtroom except in really extraordinary circumstances. And what else does it do? It allows for States to implement the policies as they see fit, as opposed to having a one-size-fits-all remedy coming down as a Federal constitutional amendment in a circumstance where I think we do not yet know the right answer. We are still fumbling our way.
Why does the amendment in general produce some erroneous outcomes? Because it begs the key question before the trial starts, requiring a decision then as to who is the real victim and the actual perpetrator. With that label prematurely decided, it helps to prejudice the outcome.
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I want to be clear. I do not support the proposed amendment because it is unnecessary and misguided. Even if this committee, the subcommittee, goes against my position, I implore you to eliminate its worst misuse. A provision must be added. This is a provision that the Justice Department asked to be added. The provision would state, ''Nothing in this article shall be construed to deny or diminish the rights of the accused, as guaranteed by this Constitution.''
This language is essential to constructing an amendment that protects the legitimate interests of victims in participatory rights and in securing aid and benefit, rather than advancing the ignoble purpose of damaging fairness to those who merely stand accused. Thank you.
[The prepared statements of Mr. Mosteller follow:]
PREPARED STATEMENT OF ROBERT P. MOSTELLER,(see footnote 1) professor of law, Duke University School of Law, Durham, NC
Chairman Hyde, Representative Canady, and Members of the House Judiciary Subcommittee on the Constitution: I appreciate this opportunity to testify today on House Joint Resolution 64. I am here to urge you not to support this proposed Amendment, and certainly not to support it unless the proposed amendment is significantly revised.
The proposed amendment should not be adopted for a number of reasons.(see footnote 2) First, it is, quite simply, unnecessary.(see footnote 3) The Constitution of the United States is a document that has only been amended twenty-seven times in the long history of this nation. It is different from legislation, which can be relatively easily fine-tuned and changed, in that it is difficult to alter and any amendment should be expected to operate unchanged for an extended period. In addition, its provisions should be reserved for those purposes that can be accomplished in no other way. Finally, the principal purpose of an amendment is to protect the despised, the politically unpopular, and insular minorities from the whims of the political majority. The Constitution should only be amended when such action is necessary, when the goal sought cannot be accomplished by other means, and when the goal of the provision is consistent with its noble purpose. These requirements are not met by the proposed victims' rights amendment.
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Victims of crime as a group and the rights of victims do not fall within any of these categories where constitutional protection is required. Their rights and interests are quite important. However, those rights and interests can be effectively protected and advanced through the democratic process. Legislative action and provision of resources by popularly elected bodies can most effectively provide protection.
Indeed, the cause of victims is clearly politically popular as we begin the Twenty-First Century. Victims command majority support in state legislatures and Congress. Their cause is supported with real enthusiasm by large segments of the public.
Proponents claim that a constitutional amendment is indeed necessary to prevent the rights of victims from being trumped by those of defendants. However, when these specific assertions and other claims of necessity are scrutinized, they cannot be supported. In the fall of 1998, I challenged the leading proponents of the proposed victims' rights amendment to produce cases from any jurisdiction in the United States where victims' rights had been trampled by the rights of defendants and where a federal constitutional cure was needed.(see footnote 4)
Cases might fall into either of two categories: cases where some provision of a state statute, state constitution, or a federal statute protecting victims' rights has been declared unconstitutional because it was held to violate the federal constitutional rights of defendants and cases where defendants' convictions were overturned on federal constitutional grounds because of adherence to some victims' rights provision. The search would look back in time for cases decided in the past several decades as victims' rights have developed and look forward from the point of the challenge to the present as courts daily handle a huge volume of criminal litigation. Thus, the number of potential cases is enormous. Nevertheless, the proponents could not come up with hundreds, or dozens, or even hand fulls. Indeed, to this point, I been shown not a single case in either category.(see footnote 5) This record is a remarkably concrete demonstration of lack of necessity.
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Assuredly, an argument requiring an amendment to the United States Constitution can be constructed if the goal of the endeavor is to take from defendants rights guaranteed to them by the Bill of Rights. To eliminate protections currently afforded by the Federal Constitution would in fact require an amendment to the United States Constitution rather than legislation. If taking away federal constitutional rights of defendants is a major goal of this proposed amendment, and for some it may be, I believe that purpose is illegitimate. The potential use of an amendment, labeled as a supporting victims' rights, to eliminate rights guaranteed to by the Bill of Rights is my second reason that the proposed amendment should not be adopted.
While superficially appealing to some, taking protections from defendants that guarantee basic fairness is not an appropriate purpose of a constitutional amendment. Protecting basic procedural fairness is one of the most appropriate purposes achieved by the Bill of Rights. The label of victims' rights should not be so misused. Instead, victims' rights should principally serve the purposes of increasing particpatory rights in criminal litigation and in providing aid and benefits to victims of crime to help restore normalcy in their lives.(see footnote 6)
Let me give you an example where the proposed amendment could violate basic fairness and help convict the innocent. Take a police brutality case, like the Rodney King case, but one without the fortuity of a videotape documenting the actual events. While law enforcement officials generally perform their duties lawfully, police brutality cases do in fact occur, and they are a particular challenge to our system of criminal justice. Those who have examined the area have demonstrated that the true victim, the citizen, is sometimes charged with assault on the officer to cover the officers' illegality, as in fact the officers tried to do in the King case before they were thwarted by several factors, including the images on the videotape.
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Under the provision of the amendment, which guarantees victims the right not to be excluded from trial, all the police officers who successfully claim to be victims would be allowed to sit in the courtroom during the testimony of all other witnesses as a matter of federal constitutional right. This provision would permit the true perpetrators of the crime to coordinate their false version of the facts and would aid them in compounding their crime by convicting an innocent and brutalized citizen. The officers could not be excluded even to aid fairness. This result is quite simply wrong.
Why does the amendment produce such an erroneous outcome? The answer provides my third reason to urge rejection of this proposed amendment. The proposal begs the key question in the trial before the trial starts. It requires decision on the question of who is the victim and who is the actual perpetrator before the case is ever tried, and with that decision, it helps determine the outcome of the case.
To be accurate, the amendment should be called the ''alleged'' victims' rights amendment. It gives rights to someone labeled the victim, but this labeling is done before a trial is ever held. Before trial, we do know to an absolute certainty the identity of the defendant/accused. That label is conclusively established by the charging decision; the defendant is the person whom the prosecutors have charged with the crime.
By contrast, the victim is not established at the outset of the trial. Rather, that status is only determined after the verdict has been reached. Nevertheless, the proposed amendment does not confine itself to matters of sentencing and other proceedings that occur after the verdict is rendered. Instead, it applies to the trial and even to pre-trial decisions. Insofar as the proposal would change outcomes, the amendment figuratively puts its finger on the scales of justice and tips the balance, sometimes unjustly. It would produce a travesty of justice any time the alleged victim is not a true victim. Granting rights based on a prejudgment of the result of the trial is wrong as a matter of both theory and of basic fairness, and this flaw constitutes a fundamental reason to reject the proposed amendment.
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Another very problematic type of cases, domestic violence cases, demonstrates unmistakably the potential for abuse and unfairness in this proposed amendment. Researchers have documented a large body of domestic violence cases where the wrong party is charged. These involve situations where one partner, often a less physically powerful female, reacts to long periods of abuse at the hands of her partner, compounded sometimes by a lack of assistance from law enforcement authorities, by the use of self-help violence.
Let me give you an example of such a case and an example of a state victims' rights amendment gone awry. The case is State ex rel. Romley v. Superior Court(see footnote 7) from Arizona. In that case, violence occurred between a man and a woman in the home. The facts as recited by the appellate court are absolutely clear in showing that the woman in the relationship called 911 asking for police help because her husband was beating her and threatening her with a knife. When the police arrived, they found the man bleeding from a stomach wound that had apparently been inflicted by his wife. The record showed that the husband had been arrested three times for assaulting his wife in Arizona and that he had been convicted of assaulting her in another state. Nevertheless, the wife was the one charged with the crime of assault.
In preparing for trial, the wife requested discovery of some of her husband's counseling and psychiatric records. The defense had information that the husband had been treated for psychiatric problems for a number of years and sought to obtain records concerning one of his multiple personalities, which was extremely violent. The state did not deny any of the facts alleged. Instead, it asserted that the wife could not receive the records because the victims' rights amendment in Arizona granted the victim a constitutional right against discovery.
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Fortunately, the trial court and the Arizona Court of Appeals had the good judgment to declare that application of the victims' rights amendment in Arizona unconstitutional. They held that its operation would have constituted a violation of the wife's right to a fair trial under the Due Process Clause of the Federal Constitution. Critically, the due process right existed to protect fairness, and it had not been altered by the operation of any penumbra of a new federal victims' rights amendment or by state legislation that the proposed amendment might authorize to enforce and implement the constitutional rights in the proposed amendment.(see footnote 8)
Under the provisions of the proposed amendment, victims have a federal constitutional right to have their safety considered in the decision whether to release the accused. This provision could be used in domestic violence cases such as Romley to keep a wrongfully accused spouse confined before trial. Pretrial confinement is widely recognized to impair the ability to prepare effectively for trial and to help coerce guilty pleas in hopes of early release.
Fairness should be protected for victims of police violence, for those (most frequently women) who use self-help violence to protect themselves in abusive domestic relationships, and generally for those who lawfully protected themselves from assault but are erroneously labeled as perpetrators. In addition, fairness should be jealously guarded in every uncertain identification case. Even when there is a high degree of confidence that the victim suffered at someone's hands, the identity of the guilty party is often unknown. The victims' rights amendment not only gives rights before trial to a person denominated a victim, but it gives rights against a particular defendant, who may not be the actual perpetrator. Indeed, our knowledge of the true victim and the real perpetrator are often more uncertain than we recognize. Our tradition of not prejudging guilt is sound; a constitutional amendment should not be used to deny rights to those accused of crime who have not yet been convicted.
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The fourth reason not to enact this amendment is that it is very badly drafted.(see footnote 9) When one compares the complexity and detail of this amendment against others in the United States Constitution, one finds in the proposed amendment something that much more resembles a statute or even an administrative regulation than the basic statement of principles typical of the other amendments. The complex, convoluted, and conflicting explanation of the amendment offered by the Senate Judiciary Committee in its Report on a similarly worded amendment(see footnote 10) makes the matter even worse. However, such a problematic explanatory document is almost necessary given both the complexity of the proposed amendment itself and the conflicting agendas that are obviously being played out in its provisions. With appropriate respect for those who drafted the amendment, it shows disdain for the Constitution and the careful craft of its drafters over the past two hundred years. These extraordinarily fundamental flaws in construction should by themselves require rejection of the proposed amendment.
Fifth and finally, the amendment should be rejected in its present form because it omits, apparently consciously, an obvious provision that would disavow a potential ignoble purpose that some of its proponents apparently warmly embrace. The provision, which was offered and rejected in the Senate Judiciary Committee in both 1998 and 1999, would provide that ''[n]othing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by this Constitution.''(see footnote 11) This provision is essential to constructing the amendment so as to benefit victims rather than damage fairness to defendants. Without it, the proposed amendment is unworthy to be part of the United States Constitution. No showing whatsoever has been made that the legitimate interests and rights cannot be protected without undercutting the basic wisdom of our Bill of Rights to protect the procedural rights of those accused of crime.
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Mr. CANADY. Thank you.
Professor Beloof.
STATEMENT OF DOUG BELOOF, VISITING PROFESSOR OF LAW, NORTHWESTERN SCHOOL OF LAW OF LEWIS & CLARK COLLEGE, PORTLAND, OH
Mr. BELOOF. Thank you, Professor Canady, distinguished members of the committee. Thank you for inviting me here to testify.
I would like to start out by saying that I strongly disagree with the testimony of the last two witnesses for various reasons.
I am a professor of Law at Northwestern School of Law at Lewis & Clark College. I am also the director of the Crime Victim Law Institute, which is housed there. I am a former prosecutor. I am a former defense attorney. I have written the book, ''Victims and Criminal Procedure,'' which is the only comprehensive book written on the subject. I am working on a treatise on this subject which, when completed, will be the only treatise on this subject.
First of all, I want to congratulate Congress. In this era of strident partisan politics, it is nice that Democrats, Republicans, conservatives and liberals alike have come together to support this bill. This diversity of support from left and right exists in legal academia, as well, with conservative Professor Paul Cassell of Utah and liberal Professor Lawrence Tribe of Harvard joining together to support this amendment.
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The amendment is a product of much compromise. In my view, the amendment sets forth extremely modest, limited rights, so limited that they are perhaps the minimum rights necessary to accommodate the victims. Nevertheless, the amendment is not merely a symbolic document, although it will have symbolic force, and the rights included are extremely important.
I am completely persuaded that the rights in the Crime Victims Amendment deserve constitutional status. The reasons the rights deserve constitutional status are one, victims are the persons harmed by crime. As a result, crime victims have a personal stake or personal interest in a case that other witnesses simply do not have. This personal stake and the affront to victim dignity that the government imposes by denying crime victims the ability to participate on some minimal level in the criminal process is important enough to amend the Constitution to provide crime victims with basic rights.
Two, the history of crime victims in the criminal process in this country provides strong support for the amendment. In the States, victims had significant involvement in the criminal process—and I will correct a previous witness because I have just done a history on that—until the early 1900's. The rights provided in the amendment are far more modest than these historical procedural rights and as a result, we have a historical basis to promote these. This is not some strange thing that our country has never seen before. In fact, these rights are far more limited, far more limited than the rights crime victims once had.
Third, there is strong support in the States for the rights in this amendment. Every State has accepted that victim harm is a legitimate basis for victim rights. Increasingly, States have accepted that victim harm is a legitimate basis to found constitutional rights on, contrary to the opinion of Mr. Fein. It is widely acknowledged that government harm to crime victims comes from denying them the basic rights granted to crime victims in this amendment.
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I would note that there is a paradox concerning popularity that is used by the opponents with some effectiveness, but when it is dissected, it is impotent. And that is that there is a paradox in the popularity argument. All these constitutional scholars sitting to my left are well aware that the only time a constitutional amendment passes is when that amendment is popular.
In other words, a constitutional amendment is intended to embody universal rights accepted by the vast majority of people, which is exactly the kind of rights these are. The idea somehow that amendments are passed to protect a minority or an unpopular group—well, the rights of defendants were popular enough at one time that they passed, and they had to be popular enough. There is nothing wrong with the fact that this is popular. It has to be popular to succeed.
The United States Supreme Court has already recognized victim harm as a legitimate concept in striking constitutional balances. And here is another paradox that the opponents use to their advantage. First they say, ''Show me a United States Supreme Court that would strike down victims' rights,'' on the one hand, and, on the other hand, they say, ''Well, the rights set forth in this amendment violate the defendants' constitutional rights.''
Well, it is interesting that both things can credibly be argued and, when dissected, they cannot be. I agree that in several opinions in the last 20 years, the court has acknowledged victim harm. It has found that acknowledgement of victim harm in order to provide processes to victims is constitutional. That is true. I also believe this amendment violates no defendants' constitutional rights.
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In supporting the amendment, the Congress is basing its support on concepts not only familiar to the United States Supreme Court but concepts embraced by the court in several different constitutional criminal contexts over 20 years. Because the court has recognized these concepts of victim harm as legitimate, Congress may take comfort in the fact that by supporting the amendment, Congress does not introduce a novel concept into the court's constitutional jurisprudence. By supporting the amendment, Congress merely a value that the court itself has recognized but, as we all know, which the court does not have the authority to place in the Bill of Rights.
The rights in this amendment are, like other rights, rights against government. In the testimony you have heard, it is not a problem with the popular desire to effect victims' rights. The problem is with the government implementing victims' rights.
Yes, the argument that can be made that well, what good will it do to pass a constitutional amendment? Mr. Fein has argued that well, courts will not enforce the amendment at all. If that is the case, I guess that is the moment at which crime victims will truly despair that there is nothing their government can do for them.
As I said, the rights in this amendment are like other civil rights—rights against government. They are rights that resemble due process rights, simple rights, rights to notice, rights to attend. And I want to address a comment Judge Sullivan made about that.
If I came in front of you and I said, ''Let us deconstitutionalize defendants' rights, let us make them statutory rights,'' what would you say to me? You would say, ''You are trivializing criminal defendants' rights'' and I would say, ''Yes, sir, I completely agree with you.''
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Let me point as an example of this problem that exists in the mindset of lawyers, judges, law professors, the judge has asked you for an exception to notification, reasonable notification to victims for judicial convenience. If I came in front of you and said, ''Gentlemen, I would like to create an exception to the defendants' rights of notice and their constitutional rights for judicial administration,'' you would think I had lost my mind, and I would agree with you. The point is exactly that—victims' harm is trivialized by the legal culture. I completely agree with Mr. Fein about that. There is no doubt it is trivialized, trivialized to the extent that an exception for administration of justice is sought.
''The rights embody fundamental fairness for crime victims. The rights in question—rights of crime victims not to be victimized by the process through which governmental bodies and officials prosecute, punish and release the accused or convicted offender—are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and never strive to violate.'' The liberal constitutional Professor Lawrence Tribe has written those words.
As the testimony indicates, victims will not be respected in the criminal process until the amendment is passed. The available empirical evidence, all the studies that have been done, the only studies reveal that, in fact, these laws are not being implemented. First-hand accounts from the field, which this committee has heard today, reveal that efforts to date have not solved the problem.
Let us look then at the distinction that some of my colleagues draw between these rights and criminal defendants' rights. Again criminal defendants' rights were popular when they were passed. These are victims' rights. They are popular—that should not prevent you from passing these.
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Insofar as the legal culture is concerned, the truth is the legal culture does not teach victims' rights. I reviewed every criminal procedure casebook before coming to this hearing to see how much space was dedicated in criminal procedure casebooks to the educating of young lawyers and young law students in the legal culture of victims' rights.
The answer was sad and sorry. The answer was I found one book out of 18 books that considered victims' rights on any kind of a sophisticated level. Every other book—most books had nothing, didn't even have victim in the index. Other books, the most they had was perhaps a note, a paragraph in there.
I can tell you that there is immense resistance within the legal academy to the idea of victims becoming part of the criminal process. That is because, as Mr. Fein accurately pointed out, we have a legal culture in which all of us were taught that there are only two sides to a proceeding.
Finally, I would like to address a concern of one of the victims who testified here against the amendment. The point is not that every victim has to participate in these rights. Like other constitutional rights, any victim can waive the desire to participate in a criminal trial. No one is forcing the victim to come into court.
The point is that the victims who want to participate on this minimal level should have some ability to do so. And frankly, his story about the Federal prosecutor who did not want to deal with the victims of the Oklahoma City bombing, even though there were many of them, disturbs me a great deal. Judges decide whether plea bargains are appropriate; prosecutors do not decide whether plea bargains are appropriate. And the concealing from a judge of information that is important to that judge to determine whether a plea bargain should be accepted or not is simply unacceptable prosecutorial behavior.
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Having said that, I challenge anyone to show me in this document a criminal defendant's right that is violated. I can find none. Thank you.
[The prepared statement of Mr. Beloof follows:]
PREPARED STATEMENT OF DOUG BELOOF, VISITING PROFESSOR OF LAW, NORTHWESTERN SCHOOL OF LAW OF LEWIS & CLARK COLLEGE, PORTLAND, OH
Mr. Chairman and Distinguished Members of the Committee, I am pleased to be here today to support the Crime Victim's Amendment to the Bill of Rights.
I am a law professor at Northwestern School of Law at Lewis & Clark College. I am also the Director of the Crime Victim Law Institute. I am a former prosecutor and former defense attorney. I have written the book, Victims in Criminal Procedure, a casebook for law students and presently the only comprehensive work in the field. Presently, I am working on a legal treatise of victim law, with Professor Paul Cassell. When complete, it will be the only treatise on the subject. The Senate Judiciary Committee Majority Report on the Crime Victim's Rights Amendment [herinafter ''Amendment''] has referred to me as a leading authority on the subject of victim law.
In this era of strident partisan politics it is encouraging indeed that when it comes to fundamental rights, such as the modest but important rights set forth in the Amendment, that strong support can be found among Republicans and Democrats, liberals, conservatives and moderates alike. Senators as diverse as Jon Kyl (R) and Dianne Feinstein (D) are sponsors of the Senate's version of this bill. This diversity of support from the left and right exists in legal academia as well, with conservative Professor Paul Cassell of Utah and liberal Professor Laurence Tribe of Harvard joining together to testify in the Senate and write op-ed pieces in newspapers supporting the Amendment.
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The Amendment itself is a product of much compromise in the Senate. As a result it embodies the minimum rights needed to ensure fairness to crime victims in the criminal process while preserving the rights of the criminal defendant. The crime victim rights set forth in the Amendment are limited and modest. The Amendment represents an extremely cautious approach to introducing crime victim rights into the Constitution. Nevertheless, the Amendment is not merely a symbolic document and the rights included are very important.
The process of amending the constitution is a majoritarian process, in the sense that it takes a super-majority of legislators to refer to the states and a super-majority of states to agree. All amendments enacted have had this quality of strong majoritarian support. The fact that a large majority consensus must exist to achieve amendment creates a paradox. The paradox is that while strong majority consensus is necessary to amend the constitution, this qualification itself leaves the Amendment open to the attack that the Amendment is unnecessary because the country already supports what is embodied in the Amendment. The paradox exists here because the proposed rights in this Amendment have strong support in many states. The support in the states is demonstrated in the chart in Appendix A to this testimony. The way out of the paradox is to answer this question: Does the nature of the rights and values expressed in the Amendment warrant placement in the Bill of Rights? The answer to this question is the essence of the matter before you today.
I suggest as your first priority you answer the question of whether the nature of the rights are such that they belong in the Bill of Rights. If you answer this question first, other questions answer themselves. By way of illustration we can use the example of the value of federalism. Should the value of federalism prevent you from passing the Amendment? First, answer the question about whether the nature of the rights are such that the nation should adopt them as a civil right properly attaching to American citizenship. If the answer is yes, federalism is not a central concern. In other words you can believe generally in federalism, or any other important value, and still support the Amendment once you identify the civil right as important enough to be included in the Bill of Rights.
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I am completely persuaded that the nature of the rights in the Crime Victim's Amendment deserve constitutional status. The reasons that the rights in the Amendment deserve Constitutional status are:
(1) Victims are the person harmed by crime. As a result crime victims have a personal stake, or personal interest, in the case. This personal stake and the affront to crime victim dignity in denying the significance of this interest is significant enough to amend the Constitution to provide crime victims with basic rights;
(2) the history of crime victims in the criminal process in this country provides strong support for the amendment;
(3) every state has accepted as legitimate the concept of victim harm as a basis for victim rights
(4) the United States Supreme Court has already recognized victim harm as a legitimate concept in striking constitutional balances;
(5) the rights in the Amendment are, like other civil rights, rights against government;
(6) the rights embody fundamental fairness.
(7) victims will not be respected in the criminal process until the Amendment is passed.
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First, and foremost, the reason why victims should have accommodations in the criminal process is because they are the person harmed. As the person harmed crime victims have a personal interest, or stake, in a criminal proceeding involving their own victimization that ordinary witnesses simply do not have. This assertion is so fundamentally true that I have never come across any coherent assertion to the contrary.
As a practical matter, there are two kinds of harm that crime victims suffer. The first is primary harm, which is the harm from the crime itself. The second kind of harm is harm from the operation of governmental processes. Both of these kinds of harm provide the basis for the Amendment. The primary harm, harm from the crime itself, is what distinguishes a crime victim from a witness. A crime victim has experienced a direct, personal harm, a witness has not. It is this primary harm that gives the victim a personal interest, or stake, in the criminal process. The failure of the government's criminal procedures to acknowledge this personal interest, or stake, leads to a secondary harm to the victim.
This line of logic is already followed in cases of the Supreme Court of the United States which has used this logic on several occasions over the last two decades. In 1983, in Morris v. Slappy, the Court urged that ''in the administration of justice the courts cannot ignore the interests of crime victims.'' In 1998, in Calderon v Thompson, the Court said, ''Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the ''powerful and legitimate interests in punishing the guilty,'' an interest shared by the State and the victim alike.'' Significantly, the Court's implicit acknowledgment and reliance upon secondary harm was made in Calderon without any legislative directive that secondary harm be considered in the relevant context. In 1991, in Payne v. Tennessee, the Court acknowledged that crime harms unique individual human beings as well as society. The significance of these cases is that the Court acknowledges that victim harm can result from the operation, or more accurately mis-operation of the criminal process itself.
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In supporting the Amendment, the Congress is basing its support on concepts not only familiar to the U.S. Supreme Court, but concepts embraced by the Court in several different constitutional criminal contexts. Because the Court has recognized these concepts of victim harm as legitimate, Congress may take comfort in the fact that by supporting the Amendment Congress does not risk introducing a novel concept into the Court's constitutional jurisprudence. By supporting the Amendment Congress merely recognizes a value that the Court itself has recognized, but which the Court cannot place in the Bill of Rights. Furthermore, the rationale of primary and secondary harm to crime victims has been embraced in every state in the country and the federal government by passing, to use but one example, laws allowing victim impact statements. A significant majority of states have acknowledged the values of dignity, respect and fairness to crime victims as a basis for modest victim rights in the criminal process. This state information is set out in detail in Appendix A, below.
That victims have a personal interest, or stake, in the case is a truth that has deep historical roots in our country. It is helpful to briefly examine the history because it supports the passage of the amendment. There is no question but that at the time of the framing of the Constitution crime victims were deeply involved in the criminal process. Recently, I have completed work on a history of victim's in the criminal courtroom, (working manuscript on file with author). It is apparent from this history that victims were considered parties to criminal proceedings in state courts well into the late 1800's and extending into the early 1900's. The complete elimination of victims, except as witnesses, from criminal proceedings in this country only came about in the 1900's. Exclusion of victims reached its zenith with the passage of Federal Rule of Evidence 315, passed in the 1970's, which banned victim-witnesses from the courtroom at the request of either party. For most of the history of the states victims had the ability to participate in the criminal process. Indeed an historical vestige of this ability is that in almost every jurisdiction in this country, including the federal courts, victims can privately retain attorneys to assist the public prosecutor. The point is that the framers of the Constitution passed the Bill of Rights in an era when victim participation in the criminal process was a fact. As a result it can be said with certainty that the rights of the criminal defendant were not originally intended to prevent the crime victim from involvement in the criminal process. Professor Tribe has independently made the same assessment that the amendment contains rights that ''the Framers of the Constitution undoubtedly assumed would receive fuller protection than has turned out to be the case.'' Our assertions are further supported by the long history of victim participation in the criminal process subsequent to the enactment of the Constitution. Our country's history supports the idea that victims are harmed by crime and have a personal interest in the case that is greater than the interest of mere witnesses. It is important to note that the Amendment does not return us to the days of private prosecution, nor should it. But, history clearly supports the idea that the harm to crime victims is significant enough to provide them the minimal rights set forth in the Amendment.
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Fundamental rights are typically rights against government. Rights which resemble due process rights, which are the type of rights embodied in the Crime Victim's Amendment, are particularly rights to prevent the government from establishing processes that deny fairness. In the words of Professor Tribe:
The rights in question—rights of crime victims not to be victimized yet again through the process by which governmental bodies and officials prosecute, punish and release the accused or convicted offender—are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate. To protect these rights of victims does not entail constitutionalizing the rights of private citizens against other citizens; for it is not the private citizen accused of crime by state or federal authorities who is the source of the violations that victim's rights advocates hope to address with a constitutional amendment in this area. Rather, it is the Governmental authorities themselves, those who pursue or release) the accused or convicted criminal with insufficient attention to the concerns of the victim, who are sometimes guilty of the kinds of violations that properly drawn amendment would prohibit.
Senator Biden has said, ''I am now convinced that no potential conflict exists in the rights enumerated in the Amendment and any existing constitutional right afforded to defendants. . . .''
This is consistent with the experience with victims rights provisions in the states. A recent summary of the available research on the purported conflict of rights found that victims' rights do not harm defendants:
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Studies show that there ''is virtually no evidence that the victims' participation is at the defendant's expense.'' For example, one study, with data from thirty-six states, found that victim-impact statutes resulted in only a negligible effect on sentence type and length. Moreover, judges interviewed in states with legislation granting right to the crime victim indicated that the balance was not improperly tipped in favor of the victim. One article studied victim participation in plea bargaining found that such involvement helped victims ''without any significant detrimental impact to the interests of prosecutors and defendants.'' Another national study in states with victims' reforms concluded that: ''Victim satisfaction with prosecutors and the criminal justice system was increased without infringing on the defendant's rights.'' [Richard Barajas & Scott Alexander Nelson, The Proposed CrimeVictims' Federal Constitutional Amendment: Working Toward a Proper Balance, 49 Baylor L. Rev. 1, 18–19 (1987) (quoting Deborah P. Kelly, Have Victim Reforms Gone Too Far—or Not Far Enough?, 5 CRIM. JUST., Fall 1991, at 22; Sarah N.Welling, Victim Participation in Plea Bargains, 65 WASH. U.L.Q. 301, 355 (1987)).]
Concurring with Professor Tribe and Senator Biden, Professor Cassell, in his Senate testimony and in a persuasive article in the Utah Law Review, has effectively demonstrated that the Amendment does not negatively impact criminal defendant's rights, and that arguments to the contrary are far-fetched. I completely support the assessment of Professors Tribe and Cassell, as well as Senator Biden that the Amendment does not conflict with a defendant's constitutional rights. On other issues pertaining to this Amendment, Professors Tribe and Cassell have presented valuable testimony before the Senate. By reference to their testimony I make clear that I agree with the insight and analysis given before the Senate by these professors and strongly urge the House to obtain their Senate testimony.
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The last point that needs to be emphasized is that victim's rights will never be fully respected until they are protected in the United States Constitution. The undeniable reality today is that, despite promises in victims enactments around the country, victims rights are far too often not actually afforded to victims. Numerous examples of violations of rights have been provided in previous hearing on this subject, both before the House Judiciary Committee and the Senate Judiciary Committee. These are not merely isolated examples. A comprehensive review of the issue was conducted by the United States Department of Justice. As reported by the Attorney General, the Department found that:
efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate. Victims' rights advocates have sought reforms at the state level for the past twenty years, and many states have responded with state statutes and constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to fully safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights.
The Attorney General's conclusions were supported by a lengthy report from the Office for Victims of Crime in the Department of Justice. The reported field concluded that ''[a] victims' rights constitutional amendment is the only legal measure strong enough to rectify the current inconsistencies in victims' rights laws that vary significantly from jurisdiction to jurisdiction on the state and federal level.''
The most thorough statistical research on the level of compliance with victims' rights fully confirms these general conclusions about inadequate protection. In 1998, the National Institute of Justice (NIJ) carefully investigated several states and found that numerous crime victims are denied their rights and concluded that ''enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice.'' The report provided repeated illustrations of circumstances in which victims were not provided rights to which they were entitled. For example, even in several states that NIJ had identified as giving ''strong protection'' to victims rights, fewer than 60% of the victims were notified of the sentencing hearing and fewer than 40% were notified of the pretrial release of the defendant. A later, follow-up analysis of the same data found that victims who were racial minorities were disproportionately affected, and were less likely to be afforded their rights under the patchwork of existing statutes.
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The reasons that victims rights are not fully respected is complex and multi-faceted. One clearly repeated theme that stands out from the research and victims report, however, is that today victims are essentially ''second class citizens'' in our nation's criminal justice system. While the defendant has constitutional rights protected in the United States Constitution, victims lack any recognition. As a result, victims simply lack the status—the legal recognition—that they need to insure that their rights are protected in the process.
In conclusion, it is my opinion that this Amendment belongs in the Bill of Rights because of the nature and quality of the rights protected, because the Supreme Court has adopted the underlying rationale of victim harm in several modem cases, because the history of this country includes a long period when crime victims have had far greater participation in the criminal process than they presently have, because the Amendment has strong majority support in this country, because the rights in the Amendment do not compromise the rights of the criminal defendant, because the Amendment embodies rights which are the minimum accommodation our civilized nation should provide to individuals harmed by crime, and because without the Amendment victims will not be respected in the criminal justice process.
As Members of Congress you have the rare privilege of being able to refer this Amendment to the States. I strongly urge you to do so.
64735a.eps
64735b.eps
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64735c.eps
Mr. CANADY. Thank you.
Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
I have concluded that I probably took the best tack by not making an opening statement because all of the witnesses who have appeared have been very persuasive in their presentations and have made important contributions.
We certainly have some problems in our criminal justice system. I do not think there is any question about that—lack of respect for victims, lack of respect for witnesses. I am not sure that this amendment necessarily gets us to a correction of those problems, by and large, but I do not want anything I say to diminish my concern or appear to diminish my concern with some of the experiences that the witnesses have had and that victims have had in the process.
I think from my experience in practicing law for 22 years, the system is very, very much overworked and prosecutors and judges seldom have the time to give the kind of respect to witnesses, other participants in the court system, much less victims.
And while I agree with Mr. Welch that in a major national case like the Oklahoma bombing case where the spotlight is on the proceedings, the caliber of justice and the caliber of attention to witnesses and victims and everybody else is a lot higher than it is in the regular day to day comings and goings of the criminal process. There is far, far too little respect for people in court proceedings when they are particularly distressed.
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Now, having said that, I would hasten to say that I am not sure that this amendment would improve that situation substantially. In fact, one could make a very, very powerful argument, and I think Judge Sullivan made some of the points, that it could exacerbate the situation because without the addition of substantial resources to administer a Victims' Rights Amendment in our court system, it would simply add more burdens to the already-overworked prosecutors and judges. And you would probably end up still getting a substantial amount of justice and fairness in the major cases that have the public spotlight on them but I doubt that it would have a substantial improvement impact in the cases that are regular—there is no run-of-the-mill case; that is the wrong way to express it—that are outside the spotlight.
You all have made powerful, powerful presentations, every single one of you, and I dare not get into the philosophical: I oppose/do not oppose. I tried to avoid that by avoiding making an opening statement.
I would ask a few kind of technical questions about this particular amendment. First of all, I would want to know whether there is any consensus or case law that would give definition to what a victim of a crime is, who would qualify and if there is no definition to that, and I do not see one in the proposed constitutional amendment itself, I wonder if maybe Mr. Beloof and Mr. Twist on the one side and Professor Mosteller and Mr. Fein on the other side might care to offer opposing arguments about how one might define that in the law.
Mr. FEIN. I think it is certainly possible in an amendment for Congress to provide specificity, perhaps drawing some arbitrary lines——
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Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have five additional minutes.
Mr. FEIN. So I do not see that to be an insurmountable hurdle except that insofar as there is difficulty in obtaining consensus on whether it ought to be limited to family members, creditors, businessmen. It could take some time before the specificity crystalized.
But I do think you point out a very acute difference between the use of victim here, which does not come with a legal gloss through long years of experience and judicial interpretation, as opposed to constitutional provisions that relate the rights of defendants.
Now in the earlier session, Senator Kyl said, well, there are ambiguities in defendants' rights, as well. You know, what is an unreasonable search and seizure, double jeopardy. Well, those words were taken with a centuries of common law background, dating from the 1688 revolution in Great Britain, the 1689 Bill of Rights.
Mr. WATT. I take it a defendant would be somebody who had been charged, but the victim——
Mr. FEIN. Yes, but the nature of the rights, as well.
Mr. WATT [continuing]. Might be somebody who is deceased.
Mr. FEIN. Could be deceased or somebody who has suffered psychological harm or emotional distress because someone died.
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But the point I was trying to make is that the words that define defendants' rights in the Constitution, which on their face may seem ambiguous, they derive from histories of judicial interpretation and practice. And John Marshall, in one of his earlier opinions said, ''We read these constitutional opinions in light of the history of the common law interpretation.''
So you had already a very long experience of precedent to give concrete meaning to those things. You cannot find the same kind of gloss on the word ''victim'' in the criminal justice system. Indeed I think Mr. Beloof points out you do not even have cases on it. You do not even have case law on the points, not even included in the legal classrooms. So you are really starting——
Mr. WATT. Let me stop you, Mr. Fein. I think I probably asked for too much if I asked for two on each side to comment on this, because I am going to run out of time. Let me get Mr. Twist or Mr. Beloof to—go ahead. You are closest to the microphone, Mr. Twist. Let me have your thoughts on this subject.
Mr. TWIST. Mr. Chairman, Mr. Watt, thank you. I think this is a theoretical problem, not a practical problem.
Mr. WATT. Well, I do not know that I agree with that, now.
Mr. TWIST. Well, let me just explain my reasons. Even without implementing legislation—I appreciate Mr. Fein's concession that this is an issue that can be and will be decided by the Congress. Congress will pass a law that establishes a definition. But even in the absence of that, the simplest and most direct definition would be the person against whom the charged crime was committed.
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Mr. WATT. That is the easy case.
Mr. TWIST. And that is why if you look at section 2, the introductory language, it says only the victim or the victim's lawful representative. That furthers the notion that in the absence of clarifying legislation, the victim would most likely—the courts would decide the victim would most likely be the person against whom the elements of the charged offense were committed. And in the absence of legislation that declared who a lawful representative would be, the court would decide. The court would make this judgment and it would not be difficult.
We have defined victim in our constitution in Arizona——
Mr. WATT. That is fair. I hear what you are saying. Let me get the other two gentlemen quickly to just give me their spin on this. Give him the microphone if you are going to point to him.
Mr. MOSTELLER. Okay. I think this is a severe problem and one that, as I understand it, labor was expended on and a resolution could not be reached. It was left somewhat vague coming out of the Senate because they could not reach a good resolution.
In fact, it is so complicated that the supporters do not even agree whether it would be established definitively by Federal law or by 51 different jurisdictions. The report from the Senate Judiciary Committee says that ''The Congress will quickly pass an implementing statute defining victim for the Federal proceedings. Moreover, nothing removes from the State their plenary authority to enact definitional laws for purposes of their own criminal systems.''
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So not only do we not know what it will be in one system; we may have various definitions across the board. And if you read the debates, there was not a consensus on any of the difficult issues you can raise—Senator Thompson raising them in a mark-up session—How far out in the kinship relationship? How about someone who is a close friend, as opposed to an estranged relative? The answers are not clear and automatic, and I do not think it is something that can be said will be resolved easily. I think it is a very severe problem.
Mr. BELOOF. Actually, there is a common law history of what a victim is. There is a common law history of cases describing who victims are—people with interests and stakes, in State cases, ending in the early 1900's and going back to quite some time. And that comports, actually, with what the majority of State statutes define as crime victims and that is a crime victim is the person directly harmed by crime or, if that person is deceased, it is the surviving immediate family of that person. And that is actually, interestingly enough, what the common law said back in the 1800's, very similar. So that is the answer.
Mr. WATT. That is fair enough. Thank you.
I yield back.
Mr. CANADY. Thank you, Mr. Watt.
I want to thank all the members of the panel for your testimony. I especially want to thank the first four witnesses. I think your testimony on this constitutional amendment helps put the broader issue in proper perspective. I think we all need to understand that we are talking about real people who have endured real loss and who have not always been treated the way they should be by the system of justice. And I do not think any of us can deny that.
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I am not going to direct any questions to you because that point is made and is compelling. I want to focus my questions on the legal aspects of this, which I think we have a responsibility to look at, and this would be addressed to Mr. Beloof and Mr. Twist.
If I understand your argument, it is that the purpose of the amendment is not, in fact, to trump constitutional rights of defendants but to help change the legal culture. Is that pretty much a fair statement of where Mr. Beloof and Mr. Twist are coming from?
Mr. BELOOF. I would add only to that, Mr. Chairman, that it is also to acknowledge the harm done to victims and to comport with them basic rights.
Mr. CANADY. To change the legal culture to acknowledge those things and to make those rights meaningful. I think that is a credible, sensible argument.
I will point out that it is a little contrary to the arguments that some others have made that we have to have a constitutional amendment because every time there is a conflict between victims' rights and the rights of the defendant, the defendant wins, and that is an argument that was made here earlier today, I believe, unless I misunderstood comments that were made.
If you want to elaborate on that?
Mr. TWIST. On that point, Mr. Chairman, because I think you raise an excellent point and it needs a little more clarification from my perspective.
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It is true that we have an abiding conviction that none of the rights that are enumerated in the joint resolution will infringe fundamental rights of persons who are accused or convicted of offenses. And it is also true, even I think as was James Madison's purpose in the Bill of Rights, one of his purposes, that it will change the culture, that it will influence the sentiment of the whole people.
Mr. CANADY. I think that I am no expert on the history of the Bill of Rights but I think that many people have argued that the Bill of Rights did have an aspirational purpose and I think there is some evidence for that. So that, I think, supports your goal in this amendment.
Mr. TWIST. But in talking about how the real world works, whenever in a trial court a defendant or a lawyer on behalf of a defendant stands before a judge and asserts that a victim's statutory right or even a victim's State constitutional right runs afoul of a Federal due process right that may remain unarticulated or unspecified but nonetheless asserted, the impulse of the judge in the legal culture is to say what we all learned in law school—the Constitution of the United States is the supreme law of the land; nothing that is found in a statute or a State constitution can offend a federally constitutionally protected right.
And indeed, Mr. Mosteller's point about cases, I would just refer him to page 135 of the hearing report of the Senate Judiciary Committee from April 16, 1997. There cases from Arizona are laid out and let me just read one very brief quote, which is from the Arizona Supreme Court and it is the obvious. We know this to be true.
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When there is a conflict——
Mr. CANADY. What case is this from, just for the record?
Mr. TWIST. This is from State Ex Rel Romley v. Superior Court, Arizona 1992.
Mr. CANADY. But if I understand that particular case, that would not be affected by this amendment. Is that correct? The matter that was at issue there would not be affected by this proposed constitutional amendment.
Mr. TWIST. That is exactly right. But, Mr. Canady, the proposition that the Court of Appeals in that case and later the Supreme Court of Arizona announced as black letter law is the umbrella that covers all of this debate. That is whenever a State constitutional or State statutory right of a victim if alleged to violate a defendant's due process right, everything in our culture tells us that the judge must decide the path of least resistance, if you will, is in favor of not a fair balance between those but instead, preservation of the supreme law of the land. And that is the umbrella and that gets asserted in day-to-day courtroom litigation.
Mr. CANADY. But I guess if that is the best case you can come up with, I think Professor Mosteller's challenge still stands.
But let me say about Professor Mosteller, I see a little tension in his argument, too, because on the one hand, he is pointing to the fact that there are no such cases and, on the other hand, he is saying we should amend this provision and put in the language that requires that nothing in the amendment trump the rights of defendants, to summarize the amendment.
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If, in fact, there is no conflict between victims' rights and the rights of defendants in the case law, then it seems to me that the amendment that Professor Mosteller and the administration have proposed would not be necessary.
But I see tension in the argument on both sides here, just to be candid about it.
Mr. MOSTELLER. With respect to one set of issues, a world shift would occur if we enacted a new amendment protecting victims that did not have that added language—or potentially would—because right now at least one of the things that you might be worried about is whether victims' rights would be overcoming defendants' rights. Right now it cannot occur but at least one of the things that happens when you enact a new constitutional amendment, you do shift the balance.
So in that new shift of the balance, there would be a potential to have a big change, especially as the legislative history stands right now, the Senate Judiciary Committee having voted down this added language.
So it seems to me that if we want to be clear about what we are doing, and I am afraid that there is a little bit of—I do not know the motivation of various people but I have the sense that within some people who are pushing for the Victims' Rights Amendment—there is an effort definitely to diminish defendants' rights, and I think that is the one thing that we can cure by adding this provision.
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Mr. CANADY. My time has expired. I will give myself another 5 minutes.
Let me just say that I think it would be helpful to the committee if we could have presented to us specific cases where the Federal constitutional rights of defendants have come into collision with victims' rights under State laws and elsewhere, where the victim has lost because of the Federal constitutional requirement and this amendment would correct that problem. Because that is really the universe I think we should be concerned about.
Now it may be that even if you cannot point to cases like that, there is still a good purpose in passing such an amendment for the aspirational impact that it has, but I think we need to be clear that that is what we are doing so that no one will have any illusions about exactly what is taking place.
Professor Beloof?
Mr. BELOOF. I want to clarify something about that absence of case law. That absence of case law exists because victims' rights are so lowly regarded generally that there is frankly, except in two jurisdictions, to my knowledge, no way to get that stuff up into the appellate courts. As a result, we have an incredible dearth of case law.
Well, one of the central problems is that we lack the wisdom of appellate judges. In my view, there is no question but——
Mr. CANADY. Well, to go back to what you said earlier, if I understand you correctly, you do not believe there is a conflict between these rights of victims and Federal constitutional rights.
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Mr. BELOOF. I do not. That is right.
Mr. CANADY. Well, assuming that the cases could get to court, what kind of cases would we see?
Mr. BELOOF. Well, I think what you would see is a trial court saying I want to exclude this witness for a particular reason——
Mr. CANADY. And let me ask about that, and I think Professor Mosteller has already answered this question. Is there a Federal constitutional right for a defendant to exclude from a trial the victim who is to testify during all times other than when the victim is testifying?
Mr. BELOOF. The answer to that is no. And in my personal experience as a prosecutor, I had two trial judges on two occasions find that the Federal right to confrontation prevented the victim from attending the courtroom. That is a spurious thing to say but they did it, and once they had done it, there was no way to have that reviewed. It was not reviewable by any court. And it was not reviewed because, of course, the judge had waited till the jury was empaneled, double jeopardy attached, and it was simply impossible to get a court above him to reverse it.
Mr. CANADY. I think that is an important point. I think it would be helpful to us if we could have further examples of where that sort of thing is taking place, where there is no effective remedy.
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Now let us go to remedies because that is another important issue and Judge Sullivan touched on this. I envision the development, under an amendment such as this, like we have had with the Federal courts managing prison systems, which a lot of us or at least some of us think has not necessarily been a good thing. I mean there have been positive aspects of that, I think most of us could acknowledge, but the Congress felt, and we passed laws on this and the Supreme Court is going to be taking a look at that law later this term, we felt the courts had gone too far and were really interfering with the proper functioning of the criminal justice systems within the States, and that is why we passed the Prison Litigation Reform Act.
Is there a potential that we are going to unleash, through an amendment such as this, Federal management of State criminal justice systems, so you will get class actions by victims in Federal court? You will have a Federal judge who will be basically telling the prosecutors how they are going to conduct their business and all that?
Now, I am not saying that would necessarily be an unacceptable result, but I think we need to be clear if that is the way we think this is going to go and that is the possible result under the provision of section 2 that provides standing to assert rights established by this article.
Mr. BELOOF. I think anything is possible. I think it is relatively unlikely and I think that because of the nature of these rights and how they differ from managing a prison system. You know, these are relatively simple, straightforward directives, which just simply have not been followed before.
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So we would be shocked if we had to impose some superstructure of injunctive relief or the Federal courts intervened on behalf of all victims as a routine matter in the State courts. I find that extremely unlikely.
Mr. CANADY. My time has expired. Would the gentleman object if I take a little more time?
Mr. WATT. Go right ahead.
Mr. SULLIVAN. Mr. Chairman, may I respond?
Mr. CANADY. Yes, please.
Mr. SULLIVAN. I think that all we need to do is look at what is happening with the habeas corpus litigation.
Mr. CANADY. I am sorry; which litigation?
Mr. SULLIVAN. Habeas corpus litigation, the attack of criminal convictions in State courts. That litigation ends up in Federal courts and I think you are going to have the same type of relief being sought by victims who are then empowered with constitutional rights. And those types of cases will flood our calendars like the habeas litigation.
So I think we are blinking reality if we do not seriously consider what is going to happen because people are going to seek relief for constitutional violations in the United States courts.
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Mr. FEIN. Mr. Chairman, I think I would disagree. I do not anticipate great litigation, even though I oppose this. And I think if you read section 2, which specifically prevents any kind of ad limine proceeding that would stay or continue or stall the trial and clearly indicates that the remedy would be a post-trial remedy seeking to deter a prosecutor or judge who had perhaps engaged in a pattern or practice of clearly illegal conduct and the likelihood of recurrence was very great, if you could make out irreparable harm, you ought to be able to get an injunction.
But also as a practical matter, remember that lawyers are people who have bread as well as souls and there is not a whole lot of money in these kinds of lawsuits here. It is not like you are suing tobacco companies and gun companies and hoping to get contingency fees like that. And I would think it would be an exceptionally rare case where someone, if they lost at the trial level, would say, ''Gee, this is worth taking an appeal on'' and who could find somebody to pursue that so that in the future, somebody else would benefit because there was not a violation.
Mr. CANADY. I wonder, though, if it would not be the case that, and I am just thinking out loud here, which is dangerous, if it would not be the case that victims would be able to bring actions under section 1983 and be eligible for getting prevailing parties' attorneys' fees in connection with a section 1983 action. There is going to be a Federal constitutional right here. I think that is at least a possibility.
Mr. FEIN. Yes but again, the standard——
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Mr. CANADY. Mr. Beloof is saying——
Mr. FEIN [continuing]. Under section 2 is that since you are seeking prospective relief here, that is to prevent a reoccurrence because you cannot get relief that enables you to go back and stop the trial and get the notice, that you have to demonstrate a prosecutor or judge who has betrayed a state of mind that is almost malevolent toward their rights and will persist in these violations, even when the right is clearly established. That is a pretty high hurdle to meet to obtain an injunction, being a prevailing party.
Mr. CANADY. I do not deny that there would be some hurdles there but litigants overcome some hurdles in a variety of contexts on a regular basis. But the point I was specifically responding to is I think that economically there is an answer here and that that is in the attorneys' fee provision connected with section 1983. I can't remember which section it is.
Mr. SULLIVAN. May I respond?
Mr. CANADY. Yes.
Mr. SULLIVAN. I think you are absolutely correct; it is section 1983.
Mr. CANADY. And Professor Beloof wanted to say something.
Mr. BELOOF. The answer is right in here. ''Nothing in this article shall give rise to or authorize the creation of a claimant dam-
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ages—'' this is line 15, 16, 17, 18, page 3. ''Nothing in this article shall give rise to or authorize the creation of a claim for damages against the United States, State or political subdivision''——
Mr. CANADY. But fees are not damages, are they? I think there is a distinction in the law between fees and damages.
Mr. WATT. Mr. Chairman, if you would yield——
Mr. CANADY. I am sorry; I have gone way over.
Mr. WATT. We are about at the point, though, where if you keep diminishing what this does, what good is it, other than the symbolic significance? There are no remedies attached to it. You say there is not going to be any litigation. You cannot get into Federal court under 1983. You cannot do anything that is going to—what did you read?
Mr. BELOOF. Page 3, lines 15 through 18, sir.
Mr. WATT. ''Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling. Nothing in this article shall give rise to or authorize the creation of a claim for damages.''
I mean——
Mr. BELOOF. You are right. It eliminates the ability to bring civil rights actions, so the hope is that the courts and the Congress will create adequate remedies under this amendment.
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Mr. WATT. It is a pretty meager statutory provision, I mean constitutional provision, I would say.
Mr. MOSTELLER. Mr. Chairman, I would just suggest that perhaps the Justice Department, an inquiry may be lodged to them because, at least in the Senate, there was a response from the Justice Department suggesting that the possibility existed of suits on the order of the prison litigation matter.
I cannot speculate about the likelihood of that result but I do suggest that maybe there is some data, but I did not see that original document from Justice.
Mr. CANADY. Mr. Twist?
Mr. TWIST. Two quick points. You raise an excellent point about the injunctive remedy under 1983 and the possibility of attorney's fees. We certainly want to be open to discussions on that point. We have been in discussions with the National District Attorneys Association about that point and certainly when this moves to mark-up, there will be an opportunity to look at the language.
One last point. What is implicit in this whole discussion is that Congress will have the authority, just like the Congress has enacted earlier laws, to control both the access to the courts and the scope of the remedy in the courts through its section 3 power in this amendment.
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And I would say to Mr. Watt that the most powerful thing that this amendment provides by way of enforcement is the most important thing that we need, and that is the first sentence of section 2—standing to appear before a court in a courtroom, assert your rights and ask that those rights be protected prospectively. There is nothing in the amendment that would prohibit, at the early stages of a case, a victim going into court, getting an order prospectively through the continuance of the case, to ensure that each of the procedural rights that are guaranteed in section 1 would be provided. And we think that is a powerful enforcement mechanism.
Mr. FEIN. I think that is an incorrect statement, Mr. Chairman. It specifically says in section 2, ''Nothing in this article shall provide grounds to stay or continue any trial,'' period. That is pretty straightforward.
Mr. CANADY. It does not say ''period.'' It goes on and it says ''except.''
Mr. FEIN. But those are not trials. Those are other elements, like restitution or something. He was speaking about the trial. You are denied the opportunity——
Mr. TWIST. No.
Mr. FEIN. You cannot go up and seek an injunction to say he has to let me appear before you go forward.
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Mr. TWIST. Mr. Chairman, you are exactly right. Mr. Fein has to read the whole sentence. The whole sentence continues, ''except to provide rights guaranteed in this article in future proceedings.'' ''In future proceedings'' means future proceedings or could mean future proceedings in the case.
Mr. CANADY. Not a different proceeding but future proceedings in the same case.
Mr. TWIST. Precisely.
Mr. CANADY. Okay.
I did not mean to be ignoring you down there, Mr. Goodlatte.
Mr. GOODLATTE. I am enjoying the discussion, Mr. Chairman.
Mr. CANADY. We will recognize you now.
Mr. GOODLATTE. I am very supportive of this effort and I do not have any questions. I guess I would ask the whole panel, is there any economy of language that can be achieved here? This seems to me to be an awful long constitutional amendment, longer, I think, than any that are in the Constitution now, probably longer than the entire Bill of Rights combined. Is there not a more economical way to protect victims' rights in terms of the language that we put into our Constitution? Mr. Twist?
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Mr. TWIST. Mr. Chairman and Mr. Goodlatte, I appreciate your opening comment and I think it is a fair question. It is a question that we dealt with in the Senate, as well.
Actually, if you were to take all of the rights of persons who are accused or convicted of offenses that are found in the U.S. Constitution and bundle them together in one amendment and lay these side-by-side, I think you will see both that the constitutional rights for the accused or convicted person are longer than this and the language would read sometimes as this language does, sometimes speaking in broad terms, sometimes speaking in very specific terms. It really does help to look at those side by side because many of us have thought the same thing, but it really is an eye-opener to go through that process, but I appreciate your question.
Mr. MOSTELLER. I think, in fact, it gets worse when you look at the effort to try to fine-tune it, as the Senate Judiciary Committee tried to do in its legislative history. When you try to work out the issues that are raised by this very complex statute-like structure, such as what do you do in complex cases where there are multiple witnesses, and then a legislative body tries to decide it, basically you compound what is an extraordinarily long amendment and complicated amendment. Something that looks like administrative regulations are needed to explain it.
So I tend to think that it cannot be simplified because it is doing so many different things, and in order to satisfy all the different constituencies that are competing for various parts of it, you have to give shades of meaning that make it even more complicated. Or you run into problems where you have results that would be unsatisfactory to some key supporters.
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So I think one real problem is with the complexity and it gets worse as a body tries to amplify it.
Mr. CANADY. Mr. Goodlatte?
Mr. GOODLATTE. That is all.
Mr. CANADY. I am going to have some more questions. Mr. Watt, do you want to——
Mr. WATT. How much longer are we going, Mr. Chairman?
Mr. CANADY. I would not think we would be here any more than another 15 minutes.
Mr. WATT. Can we agree just to go one more round each, or what are we doing here?
Mr. CANADY. Well, we are going to keep going till I finish asking my questions. It is a constitutional amendment. We are criticized for——
Mr. WATT. Then it would behoove me not to ask any questions, under those circumstances. I have a bunch of them myself but——
Mr. CANADY. That is why I wanted to turn to you and give you your chance.
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Mr. WATT. Okay. If that is the way we are going, let me go one more step here.
I think we are boring the people on the right-hand side here.
Mr. CANADY. No, I do not think so.
Mr. WATT. Mr. Welch wants to make a point. He's been anxious to make a point for a while and I wanted to give him the opportunity to do it. I do not know what it is, but——
Mr. WELCH. Thanks, Mr. Watt.
Mr. WATT. I will ask you a question so you will responsive. Tell me the point that you would like to make.
Mr. WELCH. Well, I actually have an observation because I have reached this conclusion many times before when you get a group of lawyers all arguing together, that you end up at the beginning, after you spent all afternoon arguing.
But I really had a question, if I might. May I ask a question?
Mr. WATT. Sure. You can ask it on my time.
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Mr. WELCH. Okay. I am concerned about equal justice under this new constitutional amendment. Case in point—a homeless person is killed on the streets of Oklahoma City and because that person has no family to care about that death and Julie Welch is killed on the streets of Oklahoma City and because she has a loving father and mother and family members and we are going to hold the prosecutor's feet to the fire, if you will, what type of a different sentencing are we going to end up with in those two particular cases?
Mr. WATT. Well, you raise a valid point and I certainly have some of the same concerns. I am especially concerned about the restitution provisions. And with all respect to Judge Sullivan's examples, I kind of shuttered. I think he did the right thing to hear the people, but any time you get into a situation where you start to talk about the State providing for people's rights to restitution, you bring in that differential element that I really have some reservations about whether it ought to be in a criminal trial. I do not have any problem with the civil aspects of it and the civil law is already stacked heavily toward people who are propertied people. I mean the whole statutory system is written to protect the propertied.
But the whole criminal justice system is written to protect, at present, the defendant, and I guess that is why you are here complaining about it. I understand that. But I think you raise a very serious point and I certainly cannot defend that provision.
Let me just ask one other question. One of the points Mr. Twist made in particular kind of raised a point that I was already concerned about to another level. There is no current constitutional provision that says a criminal defendant can exclude witnesses, victims. There is a rule, which I think the judge cited, where we have established that, subject to the discretion of the judge. There is some case law precedent that establishes a historical framework.
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Mr. Beloof says this is not going to disadvantage any defendant's rights. The defendant—those rules are implemented under the provisions which guarantee due process to the defendant. I presume that is where they got in the law the rule about witnesses. Yet this amendment constitutionally gives a person the right to be in the courtroom.
So now you have a constitutional imperative juxtaposed against some general language in the Constitution which guarantees due process, which has been interpreted by a rule which does not even have statutory effect at this point; it is just a rule. In that case it seems to me that clearly, the constitutional provision here is going to take precedence over the defendant's argument. It's a specified constitutional right now. There is no specified constitutional right to keep that witness out, even when it creates an unfair circumstance for the defendant.
I mean you can argue it. I can come in and argue that it is unfair and that it denies me due process of law, but that is a stretch when it is compared to a concrete, specified constitutional provision. And you still say, Mr. Beloof and Mr. Twist, that I still have not disadvantaged any rights of a criminal defendant?
Mr. CANADY. The gentleman's time has expired. The gentleman will have five additional minutes.
Mr. BELOOF. Mr. Watt, the term ''rights'' is used in various ways, as you know. The defendant has no constitutional right to exclude a victim from the courtroom. There is a rule of evidence that has, in the past—actually, passed only relatively recently, in the '70's—allowed either party in a criminal case, that being the State or the defense attorney, to exclude any witness and victims lived under that witness rule, just by asking the court. The court had no discretion, in fact, under that rule to allow people to observe unless they were essential to the prosecution, a very narrow exception.
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Mr. WATT. But we can correct that by amending the rule.
Mr. BELOOF. So the answer is the rule is not the constitutional right of due process. So when you say aren't we, by trumping this rule of evidence with constitutional right, somehow eviscerating the defendant's rights, the answer is no.
Mr. WATT. I am not certain you are eviscerating the right. I am saying you are giving the victim a higher right than you have given the defendant, than the Constitution—and you just admit, you are saying you are going to give a victim a higher specified right in the Constitution than the defendant has.
Mr. BELOOF. No, you are giving the victim the right to some limited due process rights, including the right to attend. Criminal defendants have many more due process rights than simply the right to attend.
So what we are saying is victims are human beings who also deserve some due process rights, as do criminal defendants.
So what you are doing essentially is you are creating a hierarchy of values; I do not disagree with you there. And my hierarchy of values is that a victim is a person harmed who deserves our recognition to the extent that they get modest due process rights, including the ability to attend.
Mr. WATT. I am going to restrain from debating philosophically that proposition. I disagree with it, I will tell you. Everything I was taught in law school is a little bit different than that, not that I am disrespecting victims' rights.
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Professor Mosteller?
Mr. MOSTELLER. I would give what I think is an intermediate clarification. I think there are circumstances in which there may be unfairness where the defendant could not demonstrate a due process violation. And my example would be any time there is a multiple eye-witness case, when letting both witnesses be in the courtroom at the same time might destroy fairness. But I think most courts, in looking at it, would say two witnesses is not, per se, a due process violation.
So what we have done here—and if we talk about a potential innocent person, the fact that you are innocent does not necessarily raise your rights to a due process violation. We have a potential, by creating this constitutional right, to change the fairness in a circumstance where if it was policy that were being determined, we would want to keep the multiple eyewitnesses out of the courtroom. But if you are saying is there a clear constitutional right of a defendant that is being overcome in that case, the defendant could not win the case, in my judgment.
Now, what is the kind of case a defendant could win? There is a case called Lavelle from Pennsylvania, which was a multiple eyewitness case. They had not made any IDs and the witnesses sat in the courtroom while the police officer identified the defendant as the individual who had the stolen goods. In that circumstance the court said, if you put enough circumstances together, we will call it a due process case.
We could have situations where basic fairness as to which the defendant cannot yet show a due process violation—but at least something I would worry about in terms of are we creating a situation where fairness is being denied—even though the defendant could not have made out a clearly winning due process claim.
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Mr. WATT. I have some more, Mr. Chairman, but I think I am just going to stop. There are a lot of questions here.
I think you all have done a marvelous job of covering the issues but even after you do so, every time you uncover one issue, there is another one that pops up, from my perspective. This is a very, very difficult area. I am troubled but I will get over it at some point, I guess. I yield back, Mr. Chairman.
Mr. CANADY. Thank you.
Let me go back to a point that has come out in the testimony multiple times, I think, and that is the problem with implementation of notice rights for victims. I think many of the people who have testified and much of the information I have seen about this complains about the failure to give simple notice to victims about what is going on in the system at various stages along the way, notwithstanding the existence of State laws and State constitutional amendments and all that. And when I hear those anecdotes, it comes close to infuriating me that the system would fail in that way.
That is such a simple thing for the system to do for victims. There is no question about the defendant's right being compromised. I mean I do not know that that necessarily comes up at all in this but certainly not when we are just talking about notice.
A question I have is do section 2 and the standing provision here really ensure a meaningful remedy for those types of failures that have been discussed in the testimony and that we have heard about?
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Now let me ask Mr. Beloof or Mr. Twist first and then Professor Mosteller will be a counterpoint.
Mr. BELOOF. Obviously you have struck at the heart of the problem. If notice is not given, how does the victim know they have rights?
I think there are some ways for that to be sorted out for Congress in legislation. Perhaps a prosecutor would have to certify to the court before the proceeding went any farther that they had done their due diligence with regard to victims.
Mr. CANADY. Are there any State victims' rights laws that provide for that?
Mr. BELOOF. There are a couple that provide for this. It is called certification of rights. That, of course, is one way this could be flushed out. There are other alternatives, which I think would be less palatable to the members—accelerated mandamus perhaps to a superior court, but I think that will not appeal to the legislature. That is my guess, that it will not appeal to the legislature or judges to start filing more of those.
Mr. CANADY. Would such a right be created by this amendment?
Mr. BELOOF. I do not think it would be created, no. I think that Congress would have to pass a bill that said they could mandamus.
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The background of all this is that the Supreme Court has made very clear that the only victims who are going to have rights are victims who the legislature deems have rights. In other words, to a degree, they have washed their hands of this and said victims do not have a judicially recognized interest in the criminal prosecution.
Mr. CANADY. But, of course, this amendment would change that.
Mr. BELOOF. That is right.
Mr. CANADY. I think.
Mr. BELOOF. That is right.
Mr. CANADY. If it would do anything, it would change that.
Mr. TWIST. That is why we are all here.
Mr. CANADY. And that is why we are all here.
Professor Mosteller?
Mr. MOSTELLER. I focussed on one aspect primarily and that is the denial of fairness, but I would like to take up the point about whether the constitutional amendment is good to do what is being——
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Mr. CANADY. But I had a question. I have other questions, so unless you want to respond to my questions——
Mr. MOSTELLER. I did want to respond. I do not think that it does a very good job of notice and there are other, more direct ways, such as writing into executive orders punishment against officials that do not give notice. It just seems to me as to notice, the constitutional amendment is not very effective and the remedies that were not put in the amendment, in order to make it not too burdensome on the prosecution, have, I think, taken the heart out of its ability to have an impact on notice.
If you were trying to give notice—if you just said I want to make sure notice would happen, Janet Reno or someone in the Justice Department would set out a set of rules. There would be disciplinary action and upon first failure to notice, there would be X; on the second failure, there would be Y; and on the third failure, you would no longer be a Federal employee. Notice would start happening. And you do the same at the State level.
That would be something I think would be far more effective than would a constitutional amendment that does not have the remedies that would be effective.
Mr. CANADY. I have another question I want to ask and my time is running out. Section 3 provides that the ''Congress shall have the power to enforce this article by appropriate legislation.'' Now, I have read that somewhere before. That is in the Constitution in some other amendments. I think it is still in the Constitution.
Then it goes on to say, ''Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest.''
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Now, one question that occurs to me about that is does this contemplate that exceptions, as the term is used here, may be created only legislatively or may exceptions also be created judicially?
Mr. WATT. And, if the gentleman would yield, is a compelling interest a compelling State interest or is it a compelling individual interest? That was one of the questions I was going to ask.
Mr. FEIN. As to the first question, Mr. Chairman, I think if you read the second sentence after the first one, where the first directly addresses the powers of Congress, Congress alone, that it does not make much sense to think that exceptions suddenly expand and multiply Congress like it is mutated into also the judicial branch and therefore enshrines or empowers judicial courts in interpreting this constitutional provision to itself find exceptions made if there is a compelling State interest.
Mr. CANADY. Mr. Twist and Mr. Beloof, what is your take on that?
Mr. WATT. You said compelling State interest. I assume you think this means compelling State interest?
Mr. FEIN. No, it could mean compelling interest of either the defendant, or of the victim, as the government decides to recognize one way or the other. But surely you are bringing a lot of baggage in this compelling State interest which draws on a whole history of Supreme Court rulings that could further complicate the authority of Congress.
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Suppose if Congress declares, this is a compelling State interest, is that definitive and conclusive on the courts, or can the courts say the statute is no good because we find, in second-guessing Congress, that their compelling State interest theory is contrived and unsupported by facts?
Mr. WATT. If the gentleman would yield, I would just say that is where the Supreme Court seems to be headed these days. Congress has to have an evidentiary basis for this compelling interest. It cannot just assert it. It used to be substantially different than that.
Mr. CANADY. Mr. Twist and Mr. Beloof, would you like to address the question I had about whether this can be only legislative or also judicially created?
Mr. TWIST. Very briefly, Mr. Chairman, the intention and the record in the Senate I think supports this, would be that both the legislative body and the judicial branch would have the authority, in the absence, say, of legislation, in an appropriate case to create an exception.
Mr. CANADY. Mr. Beloof, do you concur?
Mr. BELOOF. I do concur with that.
Mr. CANADY. Well, I will go back to what Mr. Fein said. I think it is a little confusing there because you start off talking about the authority of Congress and then you move to exceptions. If that is the intent, my first take on it is that that is not clearly expressed here.
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Now, let me just hasten to add also that the way the court has recently been dealing with section 5 of the 14th amendment, I am not sure what authority it gives Congress. The court has construed it very narrowly. And I wonder if adequate consideration has been given to the Boerne case and the other cases where the court has narrowly construed the power of the Congress to enforce an article by appropriate legislation.
Mr. TWIST. If I may, Mr. Chairman, on that point?
Mr. CANADY. Yes.
Mr. TWIST. Again you raise an excellent point. We have given a lot of thought to City of Boerne and what now might be the changing nature of the definition of the word ''enforce.''
Certainly, Congress has within its authority to enact laws that implement this right within the Federal system. Certainly, by the first sentence of section 3, Congress has the authority to enact laws that remedy violations of the article, which I think is a fair short summary of where we are headed with City of Boerne.
But also, it responds to some of the concerns that have been raised by the critics on the federalism point, whether this federalizes all of criminal law and, in fact, the power to enforce the provisions of this article would not remove from the States their plenary authority, as we have talked about earlier.
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Mr. CANADY. Of course, just on the point about federalizing criminal law, to a large extent it already has been federalized. I mean given the way——
Mr. TWIST. But Mr. Chairman, I mean, for example, on the point of whether or not a State would have the authority to enact a law that says, in this particular example, the court would provide notice or, in another case, the prosecutor's office may provide notice. Those sorts of details or the definitional implementational details, if you will, are not removed from the States.
Mr. CANADY. Unless, of course, there is a Federal statute to the contrary pursuant to this authority, in which case the Federal statute would govern, correct?
Mr. TWIST. Well, I do not think, Mr. Chairman——
Mr. CANADY. I am not assuming that Congress is going to go in and try to micromanage all this but I think under this, if I understand it correctly and what your intent is, if Congress decided to do that, the State laws are going to have to conform. Again, we do have a supremacy clause and this is a specific grant of authority to the Congress to act in this arena.
Mr. TWIST. But the question is what is the meaning of the word ''enforce,'' Mr. Chairman.
Mr. CANADY. Back to Boerne.
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Mr. TWIST. If the meaning of the word ''enforce'' does not carry with it, as I think we are learning from the Supreme Court, developing Supreme Court jurisprudence, all of the elements of defining every detail of the implementation, that would be left to the States and that is certainly the intention.
Mr. FEIN. Could I go back, Mr. Chairman, because I think this is a very important point on the confusion that is really massive in this provision. I think that Congressman Watt has pointed this out with regard to judicially created exemptions.
Now, two of my compatriots here said yeah, that was intended in section 3. Well remember, the exceptions seem to be discretionary. The rights may be created. You may create exceptions when necessary to achieve a compelling interest. That would suggest that one judge could say, ''Well, I find a compelling interest here to bypass the reasonable notice to victims during the trial phase.'' Another judge across the hallway says, ''No, I do not find a compelling interest here.'' Are they both constitutional under this provision? I mean, you have basically, under that interpretation, the courts warring with one another. And the Constitution means one thing in one courtroom and another in another, depending upon whether a court, in its discretion, decides to find a compelling interest to waive something or not.
Mr. TWIST. Which I would point out, Mr. Chairman, is not unlike courts warring with each other on other issues around the country.
Mr. CANADY. That does happen.
Mr. TWIST. And a body of law is developed and the Supreme Court ultimately will decide.
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Mr. CANADY. Professor Mosteller?
Mr. MOSTELLER. I would think this provision should cause grave concern for a couple of reasons. One of them is that it is unprecedented in how congressional and State action might be able to change an amendment to the Constitution adopted in this very cumbersome fashion.
Senator Kyl had said in a Senate proceeding that, ''the only way you can change constitutional rights is to amend the Constitution, and that is a very significant process, as we all know. So we are going to go a huge step by literally providing for an amendment to the Constitution here by legislative action.''
If Mr. Twist is correct—and you find that also in the legislative history—if you have not only Congress can do it but the States can do it, then you have really—it is a new animal. And, in addition to that, the goal of uniformity, it seems to me, is out the window in this declaration of a compelling interest.
This is an unprecedented clause, and we do not know quite how it is going to be operated.
Mr. CANADY. With Mr. Watt's kind, long-suffering indulgence, what I am going to do now is go to Judge Sullivan, who wants to make a comment.
Mr. SULLIVAN. I just want to state for the record, Mr. Chairman, I do not think it is appropriate for me to offer an opinion on the proper construction of section 3 because, as a Federal judge, I could be called upon at some future point in time to construe this as a matter of law. I will follow the debate intently, though.
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Mr. CANADY. Thank you.
Mr. WATT. We have finally found somebody that does not have an opinion they want to express today. That is a good way to end the hearing.
Mr. CANADY. Let me do some closing matters here. I would like to, before we close, offer to the first four witnesses an opportunity to make any brief additional statement that you would like to make. I realize you have been here very patiently. We appreciate that. There have not been many questions directed toward you. So do not feel compelled to make a statement but if you want to make a brief statement, I would like to give you that opportunity.
Ms. REHKAMP. Thank you. I guess what I would like to say is that in Ohio, law has changed and the amendment has been added to the State constitution, but that does not guarantee, should I have a child killed today, that I would be afforded the rights that I was denied in 1981 because that determination would be on the jurisdiction that the crime happened in. That should not happen to me again. Jurisdiction should have no boundaries when it comes to victims' rights. Thank you.
Mr. CANADY. Thank you. Anyone else?
Ms. LONG. I do not even know where to start. For sure, it is difficult for me, as a victim, to understand the difference in the fairness, so to speak, that I keep hearing the word ''fairness.'' In letting a defendant sit through the whole trial and hear everybody and if they want to say make changes in the statements they are going to make later on or whatever, I do not understand the difference in that or how it is more fair——
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Mr. CANADY. Let me say, I wholeheartedly agree with you.
Ms. LONG. To let him or her, whoever it is, sit there versus me.
Absolutely, Mr. Welch, it is a very emotional situation. This happened to me in '88. It is still very emotional. But I think the judge, the committees, parole board, whoever it is listening needs to hear the emotion of what this person did. They do not need to pull somebody up for parole and have him sit there and listen to every good thing he has done while he has been in prison, because that is what the guy did. He did everything right and he got out early; then he came along and raped me.
So they need to hear the emotion. And it is never going to go away from my life. It is going to be there. And it is difficult, as a victim, when you are here and all you want to be is informed, present and heard, to hear this discussion going on here. I do not understand most of it because I am not a lawyer, but you would think when the defendants have their rights put in the Constitution, did people sit around like this and do this for the rights that they have?
So I appreciate you letting me say those few things.
Mr. CANADY. Thank you so much for being here.
Mr. WELCH. I, for 1 minute, would not want to see a person not be able to appear at a parole board hearing to counter someone getting out of prison early or anything like that. That is not my intent in being here at all, and I want to make that perfectly clear. I am not here sticking up for anyone that has been convicted, that is guilty. I have some concerns about the constitutional amendment and wrongful convictions, and I think I can best explain that by an experience that I had a couple of weeks ago.
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I spent 3 days in Illinois, testified before the Illinois House Judiciary Committee 2 weeks ago today. Illinois has reduced their death row population—I am just speaking about death row only—by 25 over the last several years. They have killed 12; they have had 13 that were let off death row. They were only convicted, most of them, through DNA testing. And I want those safeguards to make sure that we do not have wrongful convictions. And the State of Illinois, in their violent crimes and their convictions, they have had over half of their cases overturned. And the same is true in Oklahoma, the same goes on in Virginia. And those safeguards is what really concerns me deeply.
Mr. CANADY. Thank you. Ms. Young?
Ms. YOUNG. Just a couple of things that I would say because I know it has been a very long day, certainly for you and certainly for the panel. But I think there are three things that I think are important to summarize a little bit of the victim perspective.
We hear so much over the years about the potential for unfairness and it is an argument that I have had to talk to, speak to and hear about. I have yet to have anyone satisfactorily explain to me, from Congress or in the States, why a simple balance between the victim and defendant rights—and it is not even an equitable balance at this stage but a simple balance on the few things that victims want—to be informed, present and heard—is going to create unfairness. It has not been demonstrated.
And as much as you—not you personally but people ask us to demonstrate cases where the victims have seen things go awry, there is no way—demonstrate to me once, as an opponent of this, how this is going to create unfairness for the defendant.
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The second thing I would say is that when I hear people talk about the complications in the criminal justice system, and it is going to take a whole lot to notify 1,000 victims or whatever and there are too many resources, I would just say really two things.
The first is that there was a tremendous effort done in Oklahoma City pretty successfully with not only the 168 victims' families who were there because their members had been killed but also for the over 2,000 who had been injured. And sure, it may be a challenge but with new technology, I do not see that that should be a barrier.
And I would be appalled if this body or our justice system would turn around and say we are not going to afford rights to this category, this class of citizens that constitutes so many people each year, simply because today we cannot figure out this complication in resources.
And the final issue I would just say is that it is something that I think the victims in this room should be included in. They come to hearing after hearing after hearing. They fight, on the State level based on stories similar to what you have heard here, to try to tell people not only what it means to be a victim but also what it means to go into the criminal justice system, which for years left them behind, and to hear arguing over simple points.
And I realize how important it is in creating laws and to create a constitutional amendment but to hear—I think, to reflect Miss Long's statement—to hear people argue over these in sort of repetitive detail in a way that does not reflect the seriousness of what they are trying to say, in a way that it does sound like it is a bunch of lawyers arguing up here. And I make no dispersions on lawyers; I am a lawyer myself. But it does sound that way, that the intent of getting through, it seems to me, should be able to be simplified.
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And I would add a final note on that. I think it was you, Congressman Watt, but I may have been wrong after this many hours, who mentioned some of these words are vague and I think it was seconded by someone else, and how do we interpret them? And I would just echo what happened with defendant's rights. In the 1970's under the Warren court, many rights started to be clarified for defendants because of words that were broadly established years and years ago.
I have always said simplicity is best and then use the court system to build on that system. But so far, we have had to balance the issues with, as some people have said, so many different little nit-pickings, that we have not gotten to that simplicity. But once again I thank you for letting me express myself.
Mr. CANADY. I want to thank all of you for being here.
Without objection, the following documents that have been submitted to the subcommittee will be admitted into the record. A letter dated February 8, 2000 from James J. Fotis, executive director of the Law Enforcement Alliance of America. Two, a letter dated February 8, 2000 from Chief Justice Joseph R. Weisburger, Supreme Court of Rhode Island and chairperson of the Conference of Chief Justices Task Force on Victims' Rights.
And third, a statement of Eleanor D. Acheson, Assistant Attorney General for the Office of Policy Development, United States Department of Justice dated February 10, 2000.
Let me make a final request, and that relates to the last item which is going to be inserted in the record. It would be helpful to the subcommittee if any members of the panel who wish to make specific comments on the specific recommendations for changes in the language, the suggestions being made in the Assistant Attorney General's statement, for you to submit that to us if you wish to do so. And the record will remain open for that purpose for 10 days for the submission of such a response to the Department of Justice's statement.
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Mr. Watt, do you have any concluding comment?
Mr. WATT. I just recalled that I came in in the middle of Ms. Young's statement and intended to apologize to her for being a little bit late coming back after we went to vote. I am sorry I missed the first part of your statement.
Mr. CANADY. Again, thank you. The subcommittee stands adjourned.
[Whereupon, at 2:55 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
| The Law Enforcement Alliance |
| of America, |
| Washington, DC, February 8, 2000. |
Hon. CHARLES CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: On behalf of the Law Enforcement Alliance of America (LEAA), I would like to inform you of our strong support of H.J. Res. 64, the ''Victims Rights Constitutional Amendment.'' The more than 65,000 members and supporters of LEAA urge you to endorse this important piece of legislation as the House Subcommittee on the Constitution considers H.J. Res. 64 this Thursday.
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LEAA is the nation's largest coalition of law enforcement professionals, crime victims, and concerned citizens dedicated to finding solutions to the problems plaguing our country's criminal justice system. Fighting for passage of victims' rights legislation is of paramount importance in realizing just one of LEAA's many goals.
Paradoxically, criminals' rights are inherently included in America's most supreme document while crime victims, historically, have not had a place and/or a voice within the criminal justice system. In fact, to add insult to injury, the majority of victims are violated and betrayed a second time by the system. H.J. Res. 64 will secure basic rights for countless victims of crime
throughout our nation as they struggle to survive their victimization.
Under this legislation, victims would have a right to receive notice of public proceedings related to the crime perpetrated against them, notice of the offender's escape or release from custody, as well as notification of parole hearings and a voice at these hearings. As the President's Task Force on Victims reported in 1982, ''The criminal justice system is absolutely dependent upon
the cooperation of crime victims to report and to testify. Without their help, the system cannot hold criminals accountable and stem the tide of future crime.''
LEAA feels it is imperative to pass legislation to protect the country's violent crime victims. The high number of victims in this country (including the tens of thousands of officers assaulted each year and dozens murdered) indicates that we cannot afford to overlook this proposed amendment.
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Once again, we urge you to take an active role in passing this common-sense, protective legislation. If there is any information LEAA can provide as you contemplate your position on H.J. Res. 64, please don't hesitate to contact us. We look forward to seeing you this Thursday.
Sincerely,
| James J. Fotis, Executive Director. |
| Supreme Court of Rhode Island, |
| Frank Licht Judicial Complex, |
| Providence, RI, February 8, 2000. |
Hon. CHARLES CANADY, Chairman,
Hon. MELVIN L, WATT, Ranking Member,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Re: House Joint Resolution 64, ''Proposing an amendment to the Constitution of the United States to protect the rights of crime victims''
DEAR CHAIRMAN CANADY AND RANKING MEMBER WATT: The Conference of Chief Justices (CCJ) has an ongoing Task Force on Victims' Rights, which I chair, to consider Congressional proposals to protect the rights of crime victims. On June 25, 1997, I testified on behalf of CCJ on H.J. Res. 71 and H.R. 1322 in the 105th Congress. We recently were informed that the Subcommittee on the Constitution would hold a hearing on H.J. Res. 64 on February 10, 2000. We would hope that you would enter this letter in the record of your hearing and consider our views as you process this legislation.
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As we stated in 1997, CCJ is in favor of according the victims of crime all rights that are consistent with the paramount duty of insuring public safety by the prosecution of criminal offenders. CCJ applauds the noble goals of H.J. Res. 64 as we did its predecessor, H.J. 71. However, we remain concerned with the federalism issues presented in H.J. Res. 64.
The CCJ concurs with the recommendations of the U.S. Judicial Conference regarding a statutory alternative to this issue. In its most recent official position (statement of U.S. Chief Judge George P. Kazen before the Committee on the Judiciary of the House of Representatives, June 25, 2997), Chief Judge Kazen stated. ''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.'' It is their and our position that a statutory provision enacted by Congress would give the federal judiciary a more measured opportunity to refine untested legal concepts and rights in order to develop a body of precedent that would pave the way for an eventual possible constitutional amendment. We understand that the U.S. Judicial Conference will reiterate that position at your hearing on February 10, 2000.
As you know, all states have some type of statutory guarantee for the protection of victims' rights, most of which have been enacted recently, At least 33 of the states also have constitutional provisions and these enactments provide victims with the opportunity to be heard at the various stages of criminal litigation, particularly at the point of sentencing and in respect to release on bail or on parole. More states are considering fewer constitutional changes. If the sponsors of H.J. Res. 64 are searching for a single settled law governing victims, 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 for years to come. We believe that the existing extensive state efforts provide a significantly more prudent and flexible approach for testing and refining the evolving legal concepts concerning victims' rights.
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The Conference, also, cannot emphasize too strongly our great concern with creating the potential for extensive federal court surveillance of the day to day operations of state law enforcement operations in this area. It is almost a foregone 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 such issues as:
definition of who is a ''victim'';
a conflict between the right ''to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime'' and the common law rationale for witness sequestration;
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 by H.J. Res. 64. 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.
Another grave concern of the Conference is that since damages against state and federal officials are prohibited under H.J. Res. 64, an alternative remedy for victims would be to seek injunctive relief against state officials in federal courts. This type of litigation is reminiscent of federal civil rights cases under 42 U.S.C. 1983 (See Pulliam v. Allen, 452 U.S. 522 (1984), which were only recently modified by Congress to limit abuses (Sec. 309 of S. 1887, P.L. 204–317).
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In the event that the House of Representatives is determined to embark upon the process of a constitutional amendment, the CCJ would suggest that its provisions be applicable only to federal criminal proceedings. In this way experience would be gained within the federal judiciary concerning the identification of and solution to problems that would invariably arise.
We recognize that the present draft of the amendment pending before the House would be applicable both to the federal judiciary and to the states. Section 3 provides that ''Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest.'' We would urge your Subcommittee to review this section and allow the state legislatures to implement this article with respect to state proceedings. Such power is more appropriately exercised by state legislatures within their respective jurisdictions.
The Conference would further urge your Subcommittee to include language that would prohibit federal judicial oversight of the implementation of this article save by the Supreme Court of the United States through its discretionary review of state courts by writ of certiorari.
To summarize our comments, CCJ suggests, alternatively:
(1) that victims' rights be protected in the federal system by a statutory enactment;
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(2) that if a constitutional amendment be proposed, it be applicable only to federal judicial proceedings;
(3) if H.J. Res. 64 is to be proposed by Congress that implementation of the article be enforced within the states only by state legislative action; and,
(4) that federal judicial oversight of interpretation of the article be limited to discretionary review of the state court action by the U.S. Supreme Court by writ of certiorari.
On behalf of the Conference of Chief Justices, I thank you for your consideration of the suggestions which are set forth in this letter. I would further volunteer myself and other members of the Conference of Chief Justices to be available to appear and testify at any further hearings conducted by your Subcommittee on this pending resolution.
Very truly yours,
| Joseph R. Weisberger, |
| Chief Justice Supreme Court of Rhode Island, |
| Chairperson, CCJ Task Force on Victims' Rights. |
cc:
Members, Committee on the Judiciary, U.S. House of Representatives
Chief Justice Norman Veasey, Supreme Court of Delaware, and
President of the Conference of Chief Justices
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Chief Justice Thomas Moyer, Supreme Court of Ohio, and
Chair, CCJ/COSCA Government Affairs Committee
Honorable Roger Warren, President, NCSC.
PREPARED STATEMENT OF ELEANOR D. ACHESON, ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF POLICY DEVELOPMENT, UNITED STATES DEPARTMENT OF JUSTICE
The Department of Justice appreciates this opportunity to present to this Subcommittee our views on H.J. Res. 64, a resolution setting forth the text of a proposed amendment to the United States Constitution to guarantee and protect the rights of crime victims.
As this Subcommittee knows, the President and the Attorney General both strongly support a constitutional amendment that will ensure that victims of crime have a voice in the criminal justice system. As the President said, in announcing his support for such an amendment:
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.
This Administration has had a longstanding interest in, and commitment to, safeguarding and bolstering the rights of crime victims in concrete ways. In announcing his support for an amendment, the President stated that the Constitution should guarantee the following basic rights for victims: the right to notice of public court proceedings and the right to attend them; the right to be heard on the issues of bail, guilty pleas, sentencing and parole; 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 be notified of these rights.
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At the same time, our constitutional system, which the Framers established after much deliberation and debate, has served our nation well for more than 200 years and should not be lightly altered. The President made clear in announcing his support for an amendment that it should be drafted with the greatest caution to ensure that it does not undermine existing constitutional provisions or impede legitimate law enforcement functions.
From the outset, this Administration has pledged its support for a constitutional amendment that achieves the following objectives: (1) provides certain enumerated rights to victims of crime; (2) eliminates the existing patchwork of victims' rights and establishes a national baseline for those rights; (3) avoids both giving unintended advantages to defendants and hindering law enforcement; and (4) preserves the constitutional rights of the accused. We remain committed to an amendment that gives real rights to victims while satisfying these basic criteria.
In light of these objectives, we have a number of concerns with specific provisions of H.J. Res. 64, and we appreciate this opportunity to raise them with you. First, we are concerned that the resolution may implicate existing constitutional guarantees. We note that the resolution lacks an express provision preserving the rights of the accused, and we also have serious reservations about the amendment's applicability to the President's power to issue pardons and commute sentences. Second, we believe the resolution may erode our ability to maintain effective law enforcement. The resolution sets forth an unduly stringent standard for creating exceptions to the Amendment's applicability that may be necessary to promote the interests of law enforcement. Furthermore, we are troubled by the provision that permits the reopening of closed cases to modify restitution awards after sentencing and by the scope of the proposed amendment beyond victims of violent crime, both of which may create obstacles to effective law enforcement.
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PRESERVING THE EXISTING CONSTITUTION
We believe that to ensure the protection of existing constitutional guarantees, the Victims' Rights Amendment should contain language that expressly preserves the rights of the accused. By this, we do not mean to suggest that defendants will always prevail if they challenge the victims' right to participate in the process. On the contrary, this Administration strongly believes 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 right to a fair trial, the Attorney General has stated that ''we must as a society ensure that fair trial is not jeopardized.''
To that end, we urge that the following language be added: ''Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution.'' By including such language, Congress will ensure that courts always seek to accommodate the constitutional rights of both the accused and the victim. However, in cases of irreconcilable conflict, where accommodation cannot protect both the rights of the accused and the rights of the victim, the accused's historical constitutional right to a fair trial will be preserved.
We are also concerned that the provision in H. J. Res. 64 granting victims the right ''to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence'' would further alter our existing constitutional framework. This provision would create an unprecedented incursion on the President's power to grant executive clemency requests.
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The Supreme Court has observed that ''the draftsmen of [the pardon clause] spoke in terms of a 'prerogative' of the President, which ought not be 'fettered or embarrassed.' '' Schick v. Reed, 419 U.S. 256, 263 (1974). The Court has also observed that ''whoever is to make [the pardon power] useful must have full discretion to exercise it.'' Ex Parte Grossman 267 U.S. 87, 121 (1925). We note that this provision could encroach not only upon the clemency powers of the President of the United States, but also of the governors in states where this authority is plenary.
This provision of H. J. Res. 64 does more than simply diminish the control over pardons that the Framers vested in the President; it does so in particularly significant ways. The proposed language would require the President to give victims notice and an opportunity to submit a statement (Section 1), and would arguably permit a court to reopen a pardon, commutation, or remission of restitution (Section 2). It also seemingly would authorize Congress to regulate the pardon power in some respects by granting Congress ''the power to enforce [the Victims' Rights Amendment] by appropriate legislation,'' rather than reserving enforcement authority to the President (Section 3).
By contrast, under our existing constitutional framework, the President is free to determine the procedures for his Administration's handling of executive clemency requests so that he may receive the information he deems necessary, including input from victims and others. The current procedures are set out in the Code of Federal Regulations. The Department is presently exploring how victim interests can be further integrated into the process by which the Department advises the President in his clemency decisions.
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Furthermore, the pardon provision differs from the rest of H.J.Res. 64, which focuses on criminal proceedings. Although other provisions of the resolution would give victims rights in proceedings in which defendants have rights, the pardon provision would grant victims rights in a setting in which no one—including defendants—has ever possessed rights. The Framers assigned this power to the President, and we oppose any amendment that would encroach upon it. While it is important to preserve the existing constitutional structure, we are committed to exploring how to incorporate victims' interest in the executive clemency process.
LAW ENFORCEMENT CONCERNS
In light of our role as the chief federal law enforcement agency, we are concerned that the very high standard in Section 3 for exceptions to the rights guaranteed by this Amendment would render the government unable to remedy the practical law enforcement problems that may arise. We believe that the authority to create exceptions should exist where necessary to promote a ''significant'' government interest, rather than the ''compelling'' interest required by the current resolution. Adequate exceptions authority is crucial to ensuring that the government has sufficient flexibility to deal with circumstances involving, for example, culpable victims, potentially violent victims, cooperating defendants, or incarcerated victims.
The requirement that governmental action be ''necessary to achieve a compelling interest'' is drawn from case law under the First and Fourteenth Amendments applying ''strict scrutiny.'' Strict scrutiny is the most rigorous test of government action under the Constitution. Given existing Supreme Court case law, we are concerned that courts would not interpret the compelling interest standard in a manner that would afford the appropriate degree of flexibility. Moreover, by constitutionalizing the compelling interest standard, the Amendment likely would require courts to apply strict scrutiny even in contexts, such as the prison setting, in which the Supreme Court has found that test inappropriate. While we would prefer that the Amendment authorize the creation of exceptions that are ''necessary to promote a significant government interest,'' we believe that eliminating the reference to the exceptions power altogether, and therefore leaving it implicit, would be preferable to retaining the ''compelling interest'' language. Again, our concern with the exception standard is rooted in the critical need to preserve flexibility for law enforcement purposes.
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In addition, we are concerned that H. J. Res. 64 would apply not only to victims of violent crime, but also to victims of non-violent crime in cases where the defendant could be imprisoned for a period longer than one year. From the outset, when the President announced his support for a victims' rights amendment, the Administration envisioned that the amendment would cover victims of violent crime. Admittedly, non-violent offenses involving fraud or theft can be quite traumatic for victims. However, from the perspective of law enforcement, expansion of the scope of the Amendment beyond violent crimes could conceivably create enormous burdens in cases of mass victimization. In comparison to violent crimes, non-violent offenses can be perpetrated more often against hundreds or even thousands of individuals by a single offender. The additional obligations upon law enforcement that H. J. Res. 64 would impose in such nonviolent cases could inhibit the initiation of such prosecutions involving wide-scale harms, such as certain frauds or environmental violations.
Our last concern is that Section 2 invites the reopening of completed criminal cases to revisit the issue of restitution. We believe that any remedies provision should strive to make rights of victims real and enforceable, while ensuring that society's and victims' interests in finality and effective law enforcement are not undermined. Measured against these objectives, we believe Section 2 of H. J. Res. 64 is overly broad and would unduly disrupt the finality of sentences. The current language would appear to permit a victim to reopen the restitution portion of a sentence for any reason at all, at any time, even after a sentence has been served in full. The problems for law enforcement that could be caused by this provision include, for example, the possibility that because of the limited economic means of many defendants, restitution awarded to some victims at sentencing might have to be decreased to accommodate subsequent claims by victims who come forward after sentencing; the potential that defendants will litigate the reopening of a restitution order without the reopening of other parts of the sentence; and the difficulty in reaching and defending plea agreements in light of possible reopenings of and changes in the terms of restitution. In our view, these issues constitute serious obstacles to including restitution among the matters subject to retrospective relief.
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Further, we believe the inclusion of restitution in Section 2 is not necessary in light of existing legislation providing relief for victims who are denied restitution or whose restitution is inadequate. If a federal court fails to impose restitution in accordance with controlling statutes, the government can appeal the unlawful sentence without impairing the defendant's Double Jeopardy rights. Likewise, the States can legislatively protect victims in this regard by authorizing state prosecutors to appeal criminal sentences that do not satisfy state restitution statutes. Congress and the States can also enact legislation to address perceived gaps in current laws without going so far as to amend the Federal Constitution.
We appreciate this opportunity to present to this Subcommittee our views on H. J. Res. 64. We want to reiterate that we remain committed to a constitutional amendment that will give victims of crime a concrete voice in the criminal justice system, and we look forward to working with you this year.
(Footnote 1 return)
Duke University Law School, Durham, North Carolina. The university affiliation is given for identification purposes only.
(Footnote 2 return)
I shall be brief in this prepared testimony principally because I have set out in some detail in a set of short essays reasons I believe should compel rejection of the amendment. The essays are: Robert P. Mosteller & H. Jefferson Powell, With Disdain for the Constitutional Craft: The Proposed Victims' Rights Amendment, 78 N.C. L. Rev. 371 (2000) [hereinafter With Disdain for the Constitutional Craft]; Robert P. Mosteller, The Unnecessary Victims' Rights Amendment, 1999 Utah L. Rev. 443 [hereinafter The Unnecessary Amendment]; Robert P. Mosteller, Victims' Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefiting the Prosecution, 29 St. Mary's L. Rev. 1053 (1998) [hereinafter Moving to Benefit Prosecution]; Robert P. Mosteller, Victims' Rights and the United States Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 Geo. L.J. 1691 (1997) [hereinafter Recasting the Battle]. The two most recent of these essays are attached.
(Footnote 3 return)
I have developed in more detail the case that the amendment is not necessary in Mosteller, The Unnecessary Amendment, 1999 Utah L. Rev. 443.
(Footnote 4 return)
I issued this challenge in connection with a symposium held at the Utah Law School. Professors Paul Cassell, Douglas Beloof, and William Pizzi, and Mr. Steve Twist, who are among the leading advocates of the victims' rights amendment, received the challenge directly. The question was also posed to Professor Cassell in 1999 during his testimony before the Senate Judiciary Committee.
(Footnote 5 return)
No case was produced at the symposium itself or in the year between it and the publication of papers or on any other occasion to the best of my knowledge. See generally Mosteller, The Unnecessary Amendment, 1999 Utah L. Rev. at 451–72.
(Footnote 6 return)
See generally Mosteller, Moving to Benefit the Prosecution.
(Footnote 7 return)
836 P.2d 445 (Ariz. Ct. App. 1992).
(Footnote 8 return)
The dangers of earlier versions of the proposed amendment to enable states to enact legislation that might damage defendants' federal constitutional rights were more clear because those earlier versions explicitly gave states the power to enact enforcement legislation. See Mosteller, Recasting the Battle, 85 Geo. L.J. at 1794–09. That danger was apparently reduced by a change in language in the proposed amendment, which gives only Congress the explicit right to enact enforcement legislation. See H.J. Res. 64, §3. However, the danger has not passed as demonstrated by the Majority Report to S.J. Res. 44 (1998), which attempts through legislative history explaining similar language to authorize states not only to enact enforcement legislation but to enact a new class of legislation ''implementing'' the amendment. The effort appears both to circumvent the restriction of City of Boerne v. Flores, 521 U.S. 505 (1997), which prohibits the creation of new constitutional rights through enforcement legislation, and to give state legislatures a power to define and shape the nature of federal constitutional rights. See Mosteller & Powell, With Disdain for the Constitutional Craft, 78 N.C. L. Rev. at 382–85.
(Footnote 9 return)
These arguments are developed more fully in Mosteller & Powell, With Disdain for the Constitutional Craft, 78 N.C. L. Rev. 371.
(Footnote 10 return)
S.J.Res 44 105th Cong. (1998).
(Footnote 11 return)
Mosteller, Moving to Benefit the Prosecution, 29 St. Mary's L. Rev. at 1065.