SPEAKERS CONTENTS INSERTS
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79–525 PDF
2002
VICTIMS' RIGHTS AMENDMENT
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
H.J. Res. 91
MAY 9, 2002
Serial No. 74
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
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JEFF FLAKE, Arizona
MIKE PENCE, Indiana
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
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WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR SMITH, Texas
[VACANCY]
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Chief Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
MAY 9, 2002
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OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Robert C. Scott, a Representative in Congress From the State of Virginia
The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Edward R. Royce, a Representative in Congress From the State of California
The Honorable John B. Shadegg, a Representative in Congress From the State of Arizona
WITNESSES
Mr. Steven J. Twist, Assistant General Counsel, Viad Corporation and Member, Steering Committee for the National Victims' Rights Constitutional Amendment Network
Oral Testimony
Prepared Statement
Ms. Roberta Roper, Executive Director, Stephanie Roper Committee and Foundation, Inc.
Oral Testimony
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Prepared Statement
Mr. James Orenstein, Partner, Baker & Hostetler, New York City
Oral Testimony
Prepared Statement
Mr. David L. Voth, Executive Director and Victim-Offender Mediator, Crime Victim Services of Allen and Putnam Counties, OH
Oral Testimony
Prepared Statement
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable James A. Barcia, a Representative in Congress From the State of Michigan
Letter from Gordon J. Campbell, Chief Executive Officer, Safe Horizons
Letter from Richard L. Abel, Connell Professor of Law, University of California at Los Angeles; Arwen Bird, Director, Survivors Advocating for an Effective System; Wade Henderson, Executive Director, Leadership Conference on Civil Rights; David Kopel, Independence Institute; Robert Mosteller, Chadwick Professor of Law, Duke Law School; Laura Murphy, Director, Washington National Office, American Civil Liberties Union; Erwin Schwartz, President, National Association of Criminal Defense Lawyers; Scott Wallace, Director, Defender Legal Servics, National Legal Aid and Defender Association
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Position Paper by the National Clearinghouse for the Defense of Battered Women
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Jon Kyl, a U.S. Senator From the State of Arizona
Prepared Statement of Bud Welch
Prepared Statement of Douglas Beloof, Associate Professor, College of Law, Lewis & Clark College
Letter from Roberta Roper, Executive Director, Stephanie Roper Committee and Foundation, Inc.
VICTIMS' RIGHTS AMENDMENT
THURSDAY, MAY 9, 2002
House of Representatives,
Subcommittee on the Constitution,
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Committee on the Judiciary,
Washington, DC.
The Subommittee met, pursuant to notice, at 12:09 p.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot (Chairman of the Committee) presiding.
Mr. CHABOT. The Committee will come to order. I'm Steve Chabot, the Chairman of the Subcommittee on Constitution of the Judiciary Committee.
Today, the Subcommittee on the Constitution convenes to hear testimony concerning the Federal Victims' Rights Amendment. The purpose of the Victims' Rights Amendment is to ensure comprehensive protection to victims of violent crime. Many of the people here today know all too well that violent criminals damage or destroy the lives of innocent victims.
According to the Department of Justice, in the year 2000 there were almost 12 million serious crimes committed in the United States. On any day, on any street corner, a mother, a father, a son, or a daughter can become the next victim of a rapist or murderer. For too many years these victims' voices have been silenced in a criminal justice system that recognizes only the rights of the accused. A constitutional amendment is absolutely needed to help facilitate a balance between the rights of victims and those of defendants.
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. The campaign to enact protections at the State level was overwhelmingly successful.
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In 1982, California became the first State to pass a victims' rights amendment to its constitution. Today, 32 States, including my home State of Ohio, have passed similar amendments with the truly overwhelming support of voters.
Although State amendments now extend rights to victims of crime, the patchwork of protections has proven inadequate in fully protecting crime victims. A clear pattern has emerged in courthouses around the country. Judges and prosecutors are reluctant to apply or enforce existing State 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 pre-trial 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 about 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.
Only an amendment to the Constitution can establish uniformity in the criminal justice system and ensure victims receive the justice they deserve. These strong new victims' rights, like others guaranteed in our Constitution, would become fundamental and citizens of every State would be protected.
I want to stress that nothing in this amendment will undermine or weaken the long-established rights of defendants under our Constitution. A study of 36 States found that victims' rights legislation had little effect on the sentencing of convicted defendants. A second study of judges interviewed in States with victims' rights legislation indicated that courts did not unfairly favor victims over defendants.
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The amendment will not deny defendants their rights, but rather grant victims' rights that can coexist side by side with defendant's rights. Furthermore, the amendment will 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 consider victims' interest in awarding restitution. For far too long, victims of crime in this country have had to stand on the courthouse 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 often times 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. In the last Congress, Congressman Barcia and I introduced a very similar amendment in the House. And working with Senators Kyl and Feinstein I think we made great progress in raising awareness of this critical issue.
This year, with the strong support we have received from President Bush, I am hopeful that we can pass this amendment and fortify an important truth, that victims must have their own inalienable rights under our Constitution.
And at this time, I'm not sure if Mr. Scott would like to make an opening statement. I will let Mr. Nadler, the Ranking Member, make an opening statement shortly after, after he gets here. But Mr. Scott, would you like to make a statement?
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Mr. SCOTT. Thank you. Thank you, Mr. Chairman. Let me just say briefly, there's a lot we can do to assist victims of crime which this amendment doesn't do. There are a lot of questions with this amendment that I hope the witness will describe. But there are several things we can do. We can expand crime prevention and offender rehabilitation programs to lessen victimization. In recent years we have reduced Pell grants for prisoners that has the effect of increasing crime.
But there is nothing that—the main thing we can do is increase victim compensation funding, victim witness coordinators, and we can fund prosecutors. There's no victims' right amendment can compensate for the fact that a prosecutor has too many cases to allow him to extend common courtesies to victims, to explain the process, and to obtain the, and consider their views. If we're serious about, about helping victims, we should do what we can—we should do that today and it would have an effect today.
But if we just here, sit here and try to amend the Constitution and in the end have a complicated mess that helps no one, with the same overburdened prosecutors, victims will still have the problems they have today.
I would yield to the gentleman from New York.
Mr. CHABOT. Thank you. The gentleman from New York is recognized.
Mr. NADLER. Thank you, Mr. Chairman. Today we address—forgive me for arriving late. Today we address a subject of great importance to every Member of this House, the need for victims of crime to have their needs and concerns respected and addressed.
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As a representative of lower Manhattan, which now has the unwanted distinction of being the largest crime scene in American history, the site of the worst act of terrorism ever on American soil, my office has had to deal with the problems of thousands of crime victims in the wake of the World Trade Center attack.
New Yorkers are certainly not strangers to crime and its impact. But we also know what it takes to provide genuine assistance to crime victims and their families. People need counseling. They need financial assistance to relocate or to get on, or to get on with their lives. Small businesses need assistance to stay on their feet. Families that have lost a breadwinner need help with the future. Since September 11th, the environmental hazards caused by the collapse of the World Trade Center continue to threaten the health of people in lower Manhattan, in Brooklyn, and probably New Jersey as well.
Crime victims also need to see the guilty parties punished, and to be reassured that neither they nor anyone else will have to fear further victimization by that individual. In this connection, I might mention this morning's New York Times editorial endorsing a bill that Senator Clinton and I introduced to provide for proper funding so that we can analyze the half a million rape kits that sit in police evidence lockers that have not been analyzed for lack of funds that can—those rape kits could probably catch several tens of thousands of rapists, take them off the streets, and probably exonerate a few improperly accused or incorrectly accused individuals.
I do have serious concerns about this proposed constitutional amendment. It appears that it will do more to obstruct the wheels of justice than to provide victims with the assistance they need to put their lives back together. It will certain spark extensive litigation in our already overburdened criminal justice system, which will mean because of that extensive litigation, less resources for actually prosecuting crimes, and may provide an opportunity for people who do not have the best of motives to cause terrible trouble in prosecutions.
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If we're really serious about helping victims, perhaps we can do better. For example, we can make sure that FEMA never again, as they did in New York, deny assistance to families who had to relocate as a result of environmental contamination of their apartment because of a criminal attack. We can keep the pressure up on EPA, which only this week, after 8 months of obfuscation and denial, finally admitted it's their job to make sure people's homes and offices are safe so that people are not slowly poisoned over the next 15 years.
We can make sure that the Victims of Crime Act is properly funded and that more money goes to the States and to crime victims assistance organizations to help those in need. We can make sure the President keeps his word and really delivers the assistance he has promised but which always seem to hit a brick wall in the Office of Management and Budget.
These things are real things that we can do that will have real impact on the lives of victims. They'll have real impact on helping victims. But that cost money. Everyone wants to help, but we have a duty to do the job and to do it right. Constitutional amendments make for great headlines, but I do not believe they are the answer. If anything, this amendment will make things for victims worse. I do not believe we need to add to their problems.
Thank you, Mr. Chairman. I yield back.
Mr. CHABOT. Thank you. I'd at this time ask for unanimous consent to permit the statements of Mr. Royce of California and Mr. Shadegg from Arizona, as guests of this Subommittee, and in addition, without objection, I'd request that a statement be permitted and submitted by Mr. Barcia who was unable to be here today, and will become part of the permanent hearing. And without objection, we'd ask for Mr. Royce to make an opening statement at this time, if you could keep it to three to 5 minutes.
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[The prepared statement of Mr. Barcia follows:]
PREPARED STATEMENT OF THE HONORABLE JAMES A. BARCIA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I want to thank Chairman Chabot and the distinguished members of this sub-committee for the opportunity to share my thoughts about the Victims Rights Amendment.
I am proud to be the lead House Democratic co-sponsor for this critical piece of legislation.
I am also very proud to be working in the other body with Senator Jon Kyl and Senator Dianne Feinstein to ensure victims' rights in our criminal justice system.
I believe this Amendment 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.
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The amendment 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.
Instead we are trying 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.
Critics of this legislation will ask, ''Why does the Constitution need to be amended? Why can't a State Constitution address victims' rights?''
The answer 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.
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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.
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.
Mr. ROYCE. I will. I will, Congressman Chabot, and I appreciate it very much, Chairman, for the opportunity, and I thank you very much for your efforts to bring a victims' rights amendment before the House.
Recently, President Bush, as we know, announced his support for this amendment, and with a bipartisan bill introduced in the Senate I think the time is right to move this in the Congress. We had, from my perspective, an opportunity some years ago in 1990 in California, we moved an amendment, it gave constitutional rights to victims under our State constitution. And at that time, Proposition 115, the Crime Victims Justice Reform Act, at that time I chaired the constitutional amendments committee in the State senate, and I authored the amendment.
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But there was an individual in California who was very instrumental in this, Collene Campbell. Her brother was racing legend, was a racing legend nationwide. And Gary and Collene Campbell, with the help of Mickey Thompson and his wife Trudy, helped us to collect a million signatures. Collene Campbell had lost her son, who was killed in a violent murder. And coincidentally her brother, her brother Mickey and Trudy were killed during the time that we were collecting those signatures. As a matter of fact, they had petitions with them when they were shot, executed in their car.
Tonight on 48 Hours their story is going to be told, and I would urge those of you who might want to follow that case—it has taken so many years to bring this case to justice. But this is that family's second experience with the criminal justice system. And this is why victims like Collene and Gary Campbell are asking for these enumerated constitutional rights that are going to allow them in the courtroom, going to allow them the right to a speedy trial, going to allow them the right to make that victim impact statement at the time that the sentencing occurs or at the time that someone's to be released.
And I think it's the minimal we can do to put into our Federal Constitution certain enumerated rights. We've done that over the years for the accused on many occasions with constitutional amendments to our Constitution. It's only right. We worked very closely with district attorneys, and with judges in California, to craft laws that would work in the courtroom. And that is what Chairman Chabot, and that is what the rest of us that are involved in this effort are doing here with our counterparts in the Senate. You know, we want a constitutional amendment that's going to stand the test, a court challenge, as it has in California.
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So for those who, who are concerned, I just wanted to, to share that, that we share their, their effort, that—their desire to have something here that meets a constitutional test. But I think the way this, this has been crafted, it does. And we now have 32 States that have constitutional amendments guaranteeing the rights of victims. So while many States and the Federal Government have enacted some legal protections for crime victims, those laws have been insufficient in providing all victims rights within the criminal justice system.
Why? Because these cases move from State court to the appellate Federal level. And so we need these constitutional rights enumerated in the Federal Constitution.
It is time to balance the scales of justice. It's time to give victims constitutional protections. And we agree that any effort to amend the Constitution must be undertaken with great care, and the specific language of this legislation strikes the proper balance in protecting victims' rights in America's criminal justice system.
So I wanted to commend you again, Mr. Chairman. And I did want to submit for the record Collene Campbell's testimony, if I could.
Mr. CHABOT. Without objection.
Mr. ROYCE. I appreciate that very much.
Mr. CHABOT. Thank you. We thank you very much for your leadership on this issue here in the Congress as well as relative to California.
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Mr. ROYCE. Thank you, Mr. Chairman.
Mr. CHABOT. And we'll at this time recognize Mr. Shadegg of Arizona for the purpose of making an opening statement and welcome him here to the Committee today.
Mr. SHADEGG. Thank you, Mr. Chairman. And I appreciate the courtesy extended by all the Members of the Committee of allowing me to be here. I unfortunately cannot remain for the balance of the testimony but I wanted to make a statement and I appreciate your willingness to allow me to do so.
You will hear eloquent testimony this morning on the importance of this piece of legislation, and you will hear arguments far beyond any that I could make. You've already heard some. I simply want to make a couple of points. It has already been raised that there are concerns about this issue and that there are those who believe a constitutional amendment is not needed.
I would like to impress upon those who come to this discussion today the fact that this has been a very, very long effort. Indeed, the language that is before you today has been negotiated at the Federal level for more than 6 years, precisely because of the kind of concerns that have been aired today about how do we strike the right balance? And it is indeed difficult to strike the right balance.
But, as my colleague from California has pointed out, it is absolutely essential that we do so. The States, indeed as my colleague from California pointed out, 32 States have already adopted State constitutional amendments. But those constitutional amendments have not gotten the job done. They have addressed victims' rights, but the reality is that this whole issue is driven by the rights given to defendants under the U.S. Constitution. And because those rights are derivative of the U.S. Constitution, it is critical that we amend the U.S. Constitution to deal with the rights of victims.
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And it is essential that we do that because those rights don't exist today, and the only place they can be enshrined, the only place they can be granted is in the U.S. Constitution.
And it is true that striking that balance is difficult, but it is also true that this negotiation and this discussion has gone on for years. The language that you have seen is incredibly, carefully crafted. It has been the result of back and forth, give and take discussions between professors as distinguished as Laurence Tribe and Paul Cassell, from the right and from the left, trying to strike that right balance. Trying to say, how do you say in the words of the Constitution these rights? How do you not demean the Constitution? How do you ensure that the rights of defendants remain protected while also ensuring the rights of victims?
And in a, in an eloquent letter, which I would hope will be put in the record today, Laurence Tribe says, this language, negotiated over a period of now almost 7 years, strikes that right, that correct balance. It does go at the issue of, well, when do we consider the victim's rights and how do we balance those in a way that we do not ever hamper the defendant's rights?
And I urge those engaged in this discussion—and I commend you, Mr. Chairman, for holding this hearing, and I commend all of the Members that have shown today and all of the rest of the Subommittee and the full Committee, to carefully review that language word for word, and review the critiques of the language because I think we really have struck the balance.
And I think it's also important to note that some issues rise above partisanship. I want to note, and you will hear it today in the testimony I believe, that this should not be a partisan issue. Both the Republican platform and the Democrat platform call for a victim's rights amendment, a crime victim's rights amendment to the U.S. Constitution.
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Both Republican and Democrat politicians and experts have joined this cause as well. Former Attorney General Janet Reno joins Attorney General John Ashcroft in calling for a crime victim's rights amendment. Former President Bill Clinton joins, as you heard just a moment ago, the endorsement of current President George W. Bush. Senator Dianne, Dianne Feinstein in the Senate joins Senator John Kyl. Laurence Tribe, as I mentioned, a, a, an eloquent advocate of defendants' rights and of constitutional rights, joins in this effort. And he did not join initially. It was only after careful review.
It is true that 32 States have this amendment or language like this. It is true that where it has been adopted by the vote of the people it has been adopted by an average vote of 80 percent of the people. Now that doesn't mean that we should rush to do it. But it does mean that we should thoughtfully review the language, and I hope, adopt similar language at the Federal level because there is no other location.
I did want to be here today, Mr. Chairman, to commend you for your effort, to throw my support behind this effort, and to mention that one of your witnesses, Steve Twist, is both a lifelong friend and a colleague. He was my supervisor in the Arizona's attorney general's office, and I worked with him closely there. I've read his testimony for today and I commend it to you. I think it is a thoughtful analysis of this issue. And I thank you for allowing me to appear.
Mr. CHABOT. We thank you very much. And at this time, before I introduce the rest of the panel, if the gentleman from Arizona would like to you'd be, I'd be happy to have you introduce Mr. Twist, or I've got the resume in front of me so we can do it either way.
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Mr. SHADEGG. You can do the resume. I can simply tell you that he has been dedicated to this cause. That he is thoughtful. That he has worked, he has worked with Laurence Tribe and with other experts on both sides of the aisle to try to achieve this end. The reality is, and in Laurence Tribe's letter he makes the point that in the absence of a Federal constitutional right there simply is no right that the States can create that is adequate. And I think Steve documents that in his testimony.
He is an extremely bright and capable lawyer working on a cause that he believes in deeply, and I know that he would be happy to answer your questions and do so in a way which will be fair and elucidate the Members of the Committee.
Mr. CHABOT. Okay, thank you very much for your contribution to the hearing this afternoon, and at this time I will introduce the very distinguished panel that we have. And, and we appreciate them being here.
Our first witness will be Steven J. Twist. From 1978 through 1999, Mr. Twist served as the chief assistant attorney general for the State of Arizona. Mr. Twist founded the first State attorney general-based victim's witness program and authored the Arizona constitutional victim's bill of rights.
Mr. Twist has successfully worked with States across the country to draft and pass State constitutional amendments, and worked with Harvard law professor Laurence Tribe and the Justice Department to draft the current Federal victims' rights amendment. Mr. Twist serves as assistant general counsel for the Viad Corporation and on the steering committee for the National Victims' Rights Constitutional Amendment network. And we welcome you here this afternoon.
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Our second witness will be Roberta Roper, executive director of the Stephanie Roper Committee and Foundation, Inc. In April 1982, following the kidnapping, brutal rape, and murder of her daughter Stephanie, Roberta, together with her husband Vince, founded the committee and foundation. For the past 20 years the committee has successfully advocated for victims' rights and services in Maryland while the foundation provides victims with an array of free services.
Ms. Roper shares Maryland's State Board of Victims' Services, or chairs the Maryland State Board of Victims' Services, and is co-chairperson of the National Victims' Constitutional Amendment Network. She has been recognized by Presidents Reagan, Clinton, and Bush for her outstanding service to crime victims and we welcome you here this afternoon, Ms. Roper.
Our next witness will be James Orenstein. Is it Orenstein?
Mr. ORENSTEIN. Yes.
Mr. CHABOT. A partner in the New York City office of Baker and Hostetler. Prior to joining the firm Mr. Orenstein served as an Assistant U.S. Attorney for the Eastern District of New York. From 1996 to 1998 he served as Special Attorney to the U.S. Attorney General and was a prosecutor in the Timothy McVeigh and Terry Nichols cases. From 1998 to 1999 Mr. Orenstein served in the Office of Legal Counsel. In 1999 Mr. Orenstein was appointed an Associate Deputy Attorney General and served in that position until early 2001. Mr. Orenstein is an adjunct law professor at the New York University and Fordham Schools of Law and we welcome you here this afternoon.
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Our final witness will be David L. Voth. Am I pronouncing that correctly? Yes?
And he's executive director and victim-offender mediator for Crime Victim Services of Allen and Putnam Counties, OH. In 1987 Mr. Voth became a licensed social worker in the State of Ohio. Mr. Voth served as president of the Ohio Victim Witness Association from 1989 and 1990. From 1990 through '94 he served as co-chair of the Ohio Crime Victims Constitutional Network, during which time voters approved a victim rights amendment to the Ohio constitution. From 1993 to '98 he served on the Ohio Criminal Sentencing Commission Advisory Committee where he was instrumental in drafting Ohio's first victims' rights laws.
He currently serves as a board member of the National Victims Constitutional Amendment Network and we welcome you here this afternoon, and especially being a fellow Buckeye.
The bells that you hear going off means that we have a series of votes. Do we know if there's—how many?
Mr. SCOTT. The previous question, probably the previous question on the rule, and the rule will probably go on voice vote.
Mr. CHABOT. Okay, what we're going to do, you'll see the light system in front of you there. We ask the witnesses to stay within 5 minutes. We have time to get in one of the testimonies here before we have to run over and vote. So we'll start with Mr. Twist, and when the yellow light comes on that means you have 1 minute to wrap up. When the red light comes on we'd appreciate it if you'd stop at that point, or shortly thereafter. So without further adieu, Mr. Twist.
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STATEMENT OF STEVEN J. TWIST, ASSISTANT GENERAL COUNSEL, VIAD CORPORATION AND MEMBER, STEERING COMMITTEE FOR THE NATIONAL VICTIMS' RIGHTS CONSTITUTIONAL AMENDMENT NETWORK
Mr. TWIST. Thank you very much, Mr. Chairman, and Mr. Nadler, and Members of the Committee. I very much appreciate the invitation to offer both my statement and these oral remarks for the hearing. My name is Steve Twist. I am general counsel for the National Victims' Constitutional Amendment Network and am pleased to represent the network here today.
We meet again to discuss great injustice, but injustice which remains seemingly invisible to all too many. Critics will say that—will caution delay, will try to make this issue more complicated than it really is. Some will say that, in their opposition to the amendment they will try to convince you that victims' rights hurts law enforcement and prosecution. And I'm eager to address those issues with the Committee at the appropriate time.
Perhaps we are so numbed by decades of crime and violence that we simply choose to look away, to pass to the other side. But in America, when confronted with great injustice we, in the network and in our movement, know great hope abides. Our cause today is a cause in the tradition of the great struggles for civil rights. When a woman is raped and not given notice of the proceedings in her case, when the parents of a murdered child are excluded from court proceedings that others may attend, when the voice of a battered woman is silenced on matters of great importance to her safety, when loved ones must endure years of delay as they seek justice.
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When these things happen it is the Government and its courts that are the engines of these injustices, and they should not happen in America. The rights we seek are modest and measured. The amendment is the product of years of debate and reflection. It speaks in the language of the Constitution. It has been revised to address concerns of critics while not abandoning any core values. It threatens no constitutional rights of an accused.
Who among us would deny to victims the right to notice of public proceedings in their cases? Who among us opposes allowing victims the right to be present in the courtroom on the same terms that the defendant enjoys? Who among us opposes giving victims a voice—not a veto, just a voice—at release, plea, and sentencing proceedings? And who would stand before the American people and argue against due consideration for the victims' safety, their interest in avoiding unreasonable delay, and their claims to restitution?
Indeed, our opponents rarely oppose these things. They're all for victims' rights. They just don't want them to be meaningful or enforceable. They say, let the States pass laws. Let them even pass State constitutional amendments. But the U.S. Constitution is too important a document to trifle with crime victims. Doubtless you will hear these words today.
Let the critics come to Arizona. We're credited with having, since 1990, one of the best victims' bill of rights in this country. For over 12 years I have represented crime victims as they have sought to enforce these rights. From the front let me tell you, with more than a decade of experience, State laws don't work. They don't work to change the culture.
And this was precisely James Madison's point when he rose to defend the Bill of Rights in the very first Congress, arguing that once in the Constitution the rights would acquire ''by degrees the character of fundamental maxims and become incorporated with the national sentiment.'' Had these rights, the rights we seek, been incorporated with the national sentiment, it would have been welcome news for Sally Goelzer and her brother Jim Bone from Phoenix.
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Let me, Mr. Chairman and Members, introduce you to Sally and her husband, Jim Goelzer, who have flown here just to be with you today. Sally's brother Hal was murdered on Thanksgiving Day 1995 in Phoenix, Arizona. He had been the victim of an attempted robbery by a gang member in Phoenix and Hal helped the police track down the suspect so that he would not hurt others. His good citizenship got him killed. He was scheduled to testify in January 1996 but two gang members silenced him before he could do that.
Arizona's constitutional amendment has a victim's right to a speedy trial. The case of the murder of Hal Bone did not go to trial and conclude until January 1999. And the sentencing for the two murderers wasn't until 2 years after that, until the summer of 2001.
Despite their constitutional rights, their right to notice, their right to be heard on matters of delay, was not respected. Regrettably, that is the state of victims' rights in the States. There are many cases that could be brought before you. Month after month for close to 6 years they summoned the courage to go to court, scheduled time off work, relived the murder of their brother over and over again. The years of delay exacted an enormous physical, emotional, and financial toll.
Mr. Chairman, that is the state of victims' rights in America today. Today as we meet, in a courtroom somewhere in America, parents are excluded from a trial; a rape victim doesn't get to be heard at sentencing or the release of her offender; a battered woman doesn't get to talk at a bond hearing. Every day, day in and day out across this country. And nothing will change, nothing will change until the rights of the victim are as protected as the rights of the rest of us.
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[The prepared statement of Mr. Twist follows:]
PREPARED STATEMENT OF STEVEN J. TWIST
Mr. Chairman and Distinguished Members:
Thank you, especially to you Mr. Chairman, for moving so quickly to hold this hearing today. I am grateful for the invitation to present the views of the National Victims Constitutional Amendment Network, a national coalition of America's leading crime victims' rights and services organizations. My background in this area is more fully set forth in earlier testimony before this subcommittee.(see footnote 1)
We meet once again to discuss great injustice, but injustice which remains seemingly invisible to all too many. Were it otherwise, the resolution before you would have already passed. Indeed the law and the culture are hard to change, and so they should be; critics are always heard to counsel delay, to trade on doubts and fears, to make the perfect the enemy of the good. Perhaps some would prefer it if crime victims just remained invisible. Perhaps we are so numbed by decades of crime and violence we simply choose to look away, to pass by on the other side of the road. But I prefer to think that in America, when confronted with great injustice, great hope abides.
Our cause today is a cause in the tradition of the great struggles for civil rights.(see footnote 2) When a woman who was raped is not given notice of the proceedings in her case, when the parents of a murdered child are excluded from court proceedings that others may attend, when the voice of a battered woman or child is silenced on matters of great importance to them and their safety—on matters of early releases and plea bargains and sentencing—it is the government and its courts that are the engines of these injustices.
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Seeming to be the chimes of freedom flashing . . .
Tolling for the tongues with no place to bring their thoughts . . .
Tolling for the aching ones whose wounds cannot be nursed . . .
1An' we gazed upon the chimes of freedom flashing.''
Bob Dylan, Chimes of Freedom, 1964.
For crime victims, the struggle for justice has gone on long enough. Too many, for too long, have been denied basic rights to fairness and human dignity. Today, you hold it within your power to begin to renew the cause of justice for America's crime victims. We earnestly hope you will do so.
I would like to address two principal areas: A brief history of the amendment, its bi-partisan support, and the history of the language of the resolution before you; and second, a review of the rights proposed. In two appendices to my testimony I have attached excerpts from earlier testimony on why these rights, to be meaningful, must be in the United States Constitution; and a more general response to the arguments of those who oppose crime victims' rights.
I. A BRIEF HISTORY OF THE MOVEMENT FOR CONSTITUTIONAL RIGHTS FOR CRIME VICTIMS, THEIR BROAD BI-PARTISAN SUPPORT, AND THE HISTORY OF THE PROPOSED LANGUAGE
A Brief History of the Movement for Constitutional Rights for Crime Victims
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Two decades ago, in 1982, the President's Task Force on Victims of Crime, which had been convened by President Reagan to study the role of the victim in the criminal justice system, issued its Final Report. After extensive hearings around the country, the Task Force proposed, a federal constitutional amendment to protect the rights of crime victims. The Task Force explained the need for a constitutional amendment in these terms:
In applying and interpreting the vital guarantees that protect all citizens, the criminal justice system has lost an essential balance. It should be clearly understood that this Task Force wishes in no way to vitiate the safeguards that shelter anyone accused of crime; but it must be urged with equal vigor that the system has deprived the innocent, the honest, and the helpless of its protection.
The guiding principle that provides the focus for constitutional liberties is that government must be restrained from trampling the rights of the individual citizen. The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed. To that end it is the recommendation of this Task Force that the sixth amendment to the Constitution be augmented.(see footnote 3)
In April 1985, a national conference of citizen activists and mutual assistance groups organized by the National Organization for Victim Assistance (NOVA) and Mothers Against Drunk Driving (MADD) considered the Task Force proposal.(see footnote 4)
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Following a series of meetings, and the formation of the National Victims Constitutional Amendment Network (NVCAN), proponents of crime victims' rights decided initially to focus their attention on passage of constitutional amendments in the States, before undertaking an effort to obtain a federal constitutional amendment.(see footnote 5) As explained in testimony before the Senate Judiciary Committee, ''[t]he 'states-first' approach drew the support of many victim advocates. Adopting state amendments for victim rights would make good use of the 'great laboratory of the states,' that is, it would test whether such constitutional provisions could truly reduce victims' alienation from their justice system while producing no negative, unintended consequences.''(see footnote 6)
The results of this conscious decision by the victims' rights movement to seek state reforms have been dramatic, and yet disappointing. A total of 32 States now have State victims' rights amendments,(see footnote 7) and every state and the federal government have victims' rights statutes in varying versions. And yet, the results have been disappointing as well, because the body of reform, on the whole, has proven inadequate to establish meaningful and enforceable rights for crime victims.(see footnote 8)
Unfortunately, however, the state amendments and related federal and state legislation are generally recognized by those who have carefully studied the issue to have been insufficient to fully protect the rights of crime victims. The United States Department of Justice has concluded that current protection of victims is inadequate, and will remain inadequate until a federal constitutional amendment is in place. As the (former) Attorney General (Reno) explained:
Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate. Victims rights advocates have sought reforms at the State level for the past 20 years. . . . 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. (Citation in original).
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In 1995 the leaders of NVCAN met to discuss whether, in light of the failure of state reforms to bring about meaningful and enforceable rights for crime victims, the time had come to press the case for a federal constitutional amendment. It was decided to begin.(see footnote 9)
Senator Kyl of Arizona was approached in the Fall of 1995 and asked to consider introducing an amendment for crime victims rights. He worked with NVCAN on the draft language and also reached across the aisle, asking Senator Dianne Feinstein to work with him. In a spirit of true bi-partisanship the two senators worked in earnest to transcend any differences and, together with NVCAN, reached agreement on the language.
In the 104th Congress, S. J. Res. 52, the first Federal constitutional amendment to protect the rights of crime victims, was introduced by Senators Jon Kyl and Dianne Feinstein on April 22, 1996. Twenty-seven other Senators cosponsored the resolution. A similar resolution (H. J. Res. 174) was introduced in the House by Representative Henry Hyde. On April 23, 1996, the Senate Committee on the Judiciary held a hearing on S. J. Res. 52. Later that year the House Committee on the Judiciary, under the leadership of then Chairmen Henry Hyde held hearings on companion proposals in the House.(see footnote 10)
At the end of the 104th Congress, Senators Kyl and Feinstein introduced a modified version of the amendment (S. J. Res. 65). As first introduced, S. J. Res. 52 embodied eight core principles: notice of the proceedings; presence; right to be heard; notice of release or escape; restitution; speedy trial; victim safety; and notice of rights. To these core values another was added in S. J. Res. 65, the right of every victim to have independent standing to assert these rights. In the 105th Congress, Senators Kyl and Feinstein introduced S. J. Res. 6 on January 21, 1997, the opening day of the Congress. Thirty-two Senators became cosponsors of the resolution. On April 16, 1997, the Senate Committee on the Judiciary held a hearing on S. J. Res. 6.(see footnote 11)
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On June 25, 1997 the House Committee on the Judiciary held hearings on H. J. Res. 71 which had been introduced by then Chairman Henry Hyde and others on April 15, 1997.
Work continued with all parties interested in the language of the proposal and many changes were made to the original draft, responding to concerns expressed in hearings, by the Department of Justice, and others. S. J. Res. 44 was introduced by Senators Kyl and Feinstein on April 1, 1998. Thirty-nine Senators joined Senators Kyl and Feinstein as original cosponsors.(see footnote 12) On April 28, 1998, the Senate Committee on the Judiciary held a hearing on S. J. Res. 44. On July 7, after debate at three executive business meetings, the Committee approved S. J. Res. 44, with a substitute amendment by the authors, by a vote of 11 to 6.
In the 106th Congress, Seantors Kyl and Feinstein introduced S. J. Res. 3 on January 19, 1999, the opening day of the Congress. Thirty-three Senators became cosponsors of the resolution. On March 24, 1999, the Senate Committee on the Judiciary held a hearing on S. J. Res. 3.
Rep Steve Chabot (R-OH) introduced H. J. Res. 64 on August 4, 1999.
On May 26, 1999, the Senate Subcommittee on the Constitution, Federalism, and Property Rights approved S. J. Res. 3, with an amendment, and reported it to the full Committee by a vote of 4 to 3. On September 30, 1999, the Senate Committee on the Judiciary approved S. J. Res. 3 with a sponsors' substitute amendment, by a vote of 12 to 5.
Hearings on H. J. Res 64 were held on February 10, 2000 before the Constitution Subcommittee of the Committee on the Judiciary.
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On April 27, 2000, after three days of debate on the floor of the United States Senate, Senators Kyl and Feinstein decided to ask that further consideration of the amendment be halted when it became likely that opponents would sustain a filibuster.(see footnote 13)
A History of the Proposed Language
After S. J. Res. 3 was withdrawn by its sponsors, an active effort was undertaken to review all the issues that had been raised by the critics. I was asked by Senator Feinstein to work with Professor Larry Tribe, the pre-eminent Harvard constitutional law scholar, on re-drafting the amendment to meet the objections of the critics. I traveled to Cambridge, Mass with my colleague John Stein, the Deputy Director of the National Organization for Victim Assistance (NOVA) and together with Prof. Tribe, we wrote a new draft for consideration by the senators and their counsel. Together with Stephen Higgins, Chief Counsel to Senator Kyl, and Matt Lamberti, Counsel to Senator Dianne Feinstein, Prof. Paul Cassell (University of Utah College of Law) and Prof. Doug Beloof (Lewis and Clark College of Law), we reached consensus on a new draft in the Fall of 2000.
With the advent of the new Administration, the revised draft was presented to representatives of the White House and the Department of Justice soon after Attorney General Ashcroft was confirmed. We began to have a series of meetings with Administration officials directed at reaching consensus on language.(see footnote 14)
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Administration Reservations
For at least two years before the full Senate took up the proposal, the Justice Department had been expressing reservations about certain provisions of the Kyl-Feinstein proposal. Organizations like the National Victims Constitutional Amendment Network (NVCAN) and NOVA had written letters to Attorney General Janet Reno expressing disagreement with the Department's positions and requesting meetings to seek resolution. Those letters went unanswered.
Justice formalized its objections in a February 10, 2000, hearing before the Constitution Subcommittee of the House Judiciary Committee, considering a counterpart proposal. There, Assistant Attorney General Eleanor D. Acheson submitted a statement for the Department specifying four objections to the Kyl-Feinstein resolution (and an additional one pertaining just to the House bill, introduced by Ohio Republican Steve Chabot).
That statement became the focus of the discussions between the Administration and the sponsors. These began Tuesday afternoon, necessitating the sponsors to leave the floor as opponents held forth.
The Justice position and the proponents' response can be found in a rejoinder that NVCAN Chief Counsel Steven Twist filed to the Acheson statement. Italicized excerpts from the statement, with the Twist rejoinder afterward, follow:
'' . . . [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.' ''
''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 . . .''
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. . .
The issue that seemed the thorniest was the first, concerning defendants' rights. The proponents' negotiators reported that the Administration had rejected alternative language that Professor Cassell had publicly suggested over a year before: ''Nothing in this article shall be construed to deny or diminish the rights of the accused as guaranteed by the Constitution. In cases of conflict, the rights of the accused or convicted offender and the victim shall be reasonably balanced.''
Finding a new way to express protection of both defendants' and victims' rights proved an intellectual challenge, but in the end, the lawyers and the sponsors were satisfied with their draft.
At the second meeting on Wednesday, the Administration team reviewed the sponsors' counteroffers, and accepted all but the defendant's rights language. Nor would they suggest an alternative to their own formulation.
The discussions toward consensus were interrupted by the September 11, 2001 attacks on our nation. However, those tragic events and their resulting victimizations focused our attention on the importance of our work and strengthened our resolve to complete it as soon as the Administration was again able to rejoin the discussion. Our talks resumed earlier this year and just before the advent of Crime Victims Rights Week this year (April 21–27, 2002) we reached agreement.
Let me say on behalf of our national movement how grateful we are to the President and the Attorney General for committing to this lengthy process and always remaining steadfast in pursuit of the goal of constitutional rights for crime victims. We are also grateful to Viet Dinh, who led the Administration discussion team, and his many fine colleagues within DOJ and the White House.
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These efforts have produced the proposed amendment which is now before you. It is the product of quite literally six years of debate and reflection. It speaks in the language of the Constitution; it has been revised to address concerns of critics on both the Left and the Right, while not abandoning the core values of the cause we serve. The proposed language threatens no constitutional right of an accused or convicted offender, while at the same time securing fundamentally meaningful and enforceable rights for crime victims.
Senators Feinstein and Kyl introduced S. J. Res. 35 on April 15, 2002 and the following day President Bush announced his support for the amendment. On May 1, 2002, Law Day, Rep. Chabot introduced the companion resolution which is before you today.
The Bi-Partisan Consensus for Constitutional Rights for Crime Victims
That there is a strong bi-partisan consensus that crime victims should be given rights is now beyond dispute, as is the consensus that those rights can only be secured by an amendment to the United States Constitution.
Support for a constitutional amendment for victims' rights is found in the platforms of both the Democratic National Committee(see footnote 15) and the Republican National Committee.(see footnote 16) Former President Clinton understood the need for a constitutional amendment for crime victims rights(see footnote 17) and President Bush has recently issued a strong endorsement of the proposal before you.(see footnote 18) Former Attorney General Janet Reno supported a constitutional amendment for victims rights(see footnote 19) and Attorney General John Ashcroft recently announced his support for the proposed amendment.(see footnote 20) Each proposal for a constitutional amendment has received strong bi-partisan support in the United States Senate.(see footnote 21) The National Governors' Association, by a vote of 49–1, passed a resolution strongly supporting the need for a constitutional amendment for crime victims.(see footnote 22) In the last Congress, a bipartisan group of 39 State Attorneys General signed a letter expressing their ''strong and unequivocal support for an amendment. Finally, among academic scholars, the amendment has garnered the support from both conservatives and liberals.(see footnote 23)
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Victims' Rights. We need a criminal justice system that both upholds our Constitution and reflects our values. Too often, we bend over backward to protect the right of criminals, but pay no attention to those who are hurt the most. Al Gore believes in a Victims' Rights Amendment to the United States Constitution— one that is consistent with fundamental Constitutional protections. Victims must have a voice in trial and other proceedings, their safety must be a factor in the sentencing and release of their attackers, they must be notified when an offender is released back into their community, they must have a right to compensation from their attacker. Our justice system should place victims . . . in their rightful place.
Having carefully studied all of the alternatives, I am now convinced that the only way to fully safeguard the rights of victims in America is to amend our Constitution and guarantee these basic rights—to be told about public court proceedings and to attend them; to make a statement to the court about bail, about sentencing, about accepting a plea if the victim is present, to be told about parole hearings to attend and to speak; notice when the defendant or convict escapes or is released, restitution from the defendant, reasonable protection from the defendant and notice of these rights.
. . .
But this is different. This is not an attempt to put legislative responsibilities in the Constitution or to guarantee a right that is already guaranteed. Amending the Constitution here is simply the only way to guarantee the victims' rights are weighted equally with defendants' rights in every courtroom in America.
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's what this country is really all about—equal justice under law. And crime victims deserve that as much as any group of citizens in the United States ever will.
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The victims' rights movement has touched the conscience of this country, and our criminal justice system has begun to respond, treating victims with greater respect. The states, as well as the federal government, have passed legal protections for victims. However, those laws are insufficient to fully recognize the rights of crime victims.
Victims of violent crime have important rights that deserve protection in our Constitution. And so today, I announce my support for the bipartisan Crime Victims' Rights amendment to the Constitution of the United States.
As I mentioned, this amendment is sponsored by Senator Feinstein of California, Senator Kyl of Arizona—one a Democrat, one a Republican. Both great Americans.
This amendment makes some basic pledges to Americans. Victims of violent crime deserve the right to be notified of public proceedings involving the crime. They deserve to be heard at public proceedings regarding the criminal's sentence or potential release. They deserve to have their safety considered. They deserve consideration of their claims of restitution. We must guarantee these rights for all the victims of violent crime in America.
The Feinstein-Kyl Amendment was written with care, and strikes a proper balance. Our legal system properly protects the rights of the accused in the Constitution. But it does not provide similar protection for the rights of victims, and that must change.
The protection of victims' rights is one of those rare instances when amending the Constitution is the right thing to do. And the Feinstein-Kyl Crime Victims' Rights Amendment is the right way to do it.
Based on our personal experiences and the extensive review and analysis that has been conducted at our direction, the President and I have concluded that an amendment to the Constitution to protect victims' rights is warranted. We have come to that conclusion for a number of important reasons.
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First, unless the Constitution is amended to ensure basic rights to crime victims, we will never correct the existing imbalance in this country between defendants' constitutional rights and the current haphazard patchwork of victims' rights. While a person arrested or convicted for a crime anywhere in the United States knows that he is guaranteed certain basic minimum protection under our nation's most fundamental law, the victim of that crime has no guarantee of rights beyond those that happen to be provided and enforced in the particular jurisdiction where the crime occurred.
A victims' rights amendment would ensure that courts will give weight to the interests of victims. When confronted with the need to reconcile the constitutional rights of a defendant with the statutory rights of a victim, many courts often find it easiest simply to ignore the legitimate interests of the victim. A constitutional amendment would require courts to engage in a careful and conscientious analysis to determine whether a particular victim's participation would adversely affect the defendant's rights. The result will be a more sophisticated and responsive criminal justice system that both protects the rights of the accused and the interests of victims.
Second, efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.
There were millions of victims of violent crime last year, but too often in the quest for justice, the rights of these victims were overlooked or ignored. It is time—it is past time—to balance the scales of justice, to demand fairness and judicial integrity not just for the accused but for the aggrieved, as well.
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I am grateful to members of the Congress who are here today, and I thank in particular Senators John Kyl and Dianne Feinstein for their work to protect the rights of victims.
Although government cannot offer the one thing that victims wish for most, and that's a return to the way life was before violence intruded, government can do more than it has done in the past. We can offer victims a new guarantee of inclusion in the process of justice. We can show our support with that of a bipartisan group of lawmakers for a constitutional amendment to ensure that the victims of crime have their rights, including the right to participate, the right to be heard, and the right to decisions that consider the safety of victims.
II. THE RIGHTS PROPOSED
SECTION 1. The rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them, are hereby established and shall not be denied by any State or the United States and may be restricted only as provided in this article.
The rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them . . .
This preamble, authored by Professor Tribe, establishes two important principles about the rights established in the amendment: First, they are not intended to deny the constitutional rights of the accused, and second, they do not. The task of balancing rights, in the case of alleged conflict, will fall, as it always does, to the courts, guided by the constitutional admonition not to deny constitutional rights to either the victim or the accused.(see footnote 24)
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are hereby established
For a fuller discussion of why true rights for crime victims can only be established through an Amendment to the U. S. Constitution, and why it is appropriate to do so, see Appendix A. The arguments presented are straightforward: twenty years of experience with statutes and state constitutional amendments proves they don't work. Defendants trump them, and the prevailing legal culture does not respect them. They are geldings.(see footnote 25)
And all the time—such is the tragic-comedy of our situation—we continue to clamour for those very qualities we are rendering impossible. . . . In a sort of ghastly simplicity we remove the organ and demand the function. We make men without chests and expect of them virtue and enterprise. We laugh at honour and are shocked to find traitors in our midst. We castrate and bid the geldings be fruitful.
C. S. Lewis, The Abolition of Man, 26 (HarperCollins 2001).
The amendment provides that the rights of victims are ''hereby established.'' The phrase, which is followed by certain enumerated rights, is not intended to ''deny or disparage''(see footnote 26) rights that may be established by other federal or state laws. The amendment establishes a floor and not a ceiling of rights(see footnote 27) and States will remain free to enact (or continue, as indeed many have already enacted) more expansive rights than are ''established'' in this amendment. Rights established in a state's constitution would be subject to the independent construction of the state's courts(see footnote 28)
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and shall not be denied by any State or the United States and may be restricted only as provided in this article.
In this clause, and in Section 2 of the amendment, an important distinction between ''denying'' rights and ''restricting'' rights is established. As used here, ''denied'' means to ''refuse to grant;''(see footnote 29) in other words, completely prohibit the exercise of the right. The amendment, by its terms, prohibits such a denial. At the same time, the language recognizes that no constitutional right is absolute and therefore permits ''restrictions'' on the rights but only, as provided in Section 2, in three narrow circumstances. This direction settles what might otherwise have been years of litigation to adopt the appropriate test for when, and the extent to which, restrictions will be allowed.
SECTION 2. A victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused; the rights not to be excluded from such public proceeding and reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings; and the right to adjudicative decisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender. These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity.
A victim of violent crime
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Concern has been expressed by some over the amendment's limitation to victims of ''violent crime.'' In a perfect world the amendment would extend to victims of all crimes. Nonetheless, we have acceded to the insistence of others that the amendment be limited in this fashion because we believe strongly that the rights proposed, once adopted, will benefit all crime victims. The rights will usher in an era of cultural reform in the criminal justice system, moving it to a more victim-oriented model.(see footnote 30)
Moreover, we are confident that the scope of the ''violent crime'' clause will be broadly applied to effectuate the purpose of extending rights to crime victims, and not be limited as it might in more narrow contexts. The Senate Report addressed this issue at some length and it is worth inserting those views for the House's consideration:
The most analogous Federal definition is Federal Rule of Criminal Procedure 32(f), which extends a right of allocution to victims of a ''crime of violence'' and defines the phrase as one that ''involved the use or attempted or threatened use of physical force against the person or property of another * * *.'' (emphasis added). The Committee anticipates that the phrase ''crime of violence'' will be defined in these terms of ''involving'' violence, not a narrower ''elements of the offense'' approach employed in other settings. See, e.g., 18 U.S.C. 16. Only this broad construction will serve to protect fully the interests of all those affected by criminal violence.
''Crimes of violence'' will include all forms of homicide (including voluntary and involuntary manslaughter and vehicular homicide), sexual assault, kidnaping, robbery, assault, mayhem, battery, extortion accompanied by threats of violence, carjacking, vehicular offenses (including driving while intoxicated) which result in personal injury, domestic violence, and other similar crimes. A ''crime of violence'' can arise without regard to technical classification of the offense as a felony or a misdemeanor.
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It should also be obvious that a ''crime of violence'' can include not only acts of consummated violence but also of intended, threatened, or implied violence. The unlawful displaying of a firearm or firing of a bullet at a victim constitutes a ''crime of violence'' regardless of whether the victim is actually injured. Along the same lines, conspiracies, attempts, solicitations and other comparable crimes to commit a crime of violence should be considered ''crimes of violence'' for purposes of the amendment, if identifiable victims exist.
Similarly, some crimes are so inherently threatening of physical violence that they could be ''crimes of violence'' for purposes of the amendment. Burglary, for example, is frequently understood to be a ''crime of violence'' because of the potential for armed or other dangerous confrontation. See United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994); United States v. Flores, 875 F.2d 1110 (5th Cir. 1989).
Similarly, sexual offenses against a child, such as child molestation, can be ''crimes of violence'' because of the fear of the potential for force which is inherent in the disparate status of the perpetrator and victim and also because evidence of severe and persistent emotional trauma in its victims gives testament to the molestation being unwanted and coercive. See United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). Sexual offenses against other vulnerable persons would similarly be treated as ''crimes of violence,'' as would, for example, forcible sex offenses against adults and sex offenses against incapacitated adults.
Finally, an act of violence exists where the victim is physically injured, is threatened with physical injury, or reasonably believes he or she is being physically threatened by criminal activity of the defendant. For example, a victim who is killed or injured by a driver who is under the influence of alcohol or drugs is the victim of a crime of violence, as is a victim of stalking or other threats who is reasonably put in fear of his or her safety. Also, crimes of arson involving threats to the safety of persons could be ''crimes of violence.''(see footnote 31)
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It should be noted that the States, and the Federal Government,(see footnote 32) within their respective jurisdictions, retain authority to define, in the first instance, conduct that is criminal. The power to define ''victim'' is simply a corollary of the power to define the elements of criminal offenses and, for State crimes, the power would remain with State Legislatures.
shall have the right to reasonable and timely notice of any public proceeding involving the crime
Reasonable and timely notice is the irreducible component of fairness and due process. Each of the participatory rights established in the amendment depend first on the receipt of notice. Notice here must be ''reasonable.'' As was noted in the Senate Judiciary Report:
To make victims aware of the proceedings at which their rights can be exercised, this provision requires that victims be notified of public proceedings relating to a crime. 'Notice' can be provided in a variety of fashions. For example, the Committee was informed that some States have developed computer programs for mailing form notices to victims while other States have developed automated telephone notification systems. Any means that provides reasonable notice to victims is acceptable.
'Reasonable' notice is any means likely to provide actual notice to a victim. Heroic measures need not be taken to inform victims, but due diligence is required by government actors. It would, of course, be reasonable to require victims to provide an address and keep that address updated in order to receive notices. 'Reasonable' notice is notice that permits a meaningful opportunity for victims to exercise their rights. In rare mass victim cases (i.e., those involving hundreds of victims), reasonable notice could be provided to means tailored to those unusual circumstances, such as notification by newspaper or television announcement.
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Victims are given the right to receive notice of 'proceedings.' Proceedings are official events that take place before, for example, trial and appellate courts (including magistrates and special masters) and parole boards. They include, for example, hearings of all types such as motion hearings, trials, and sentencings. They do not include, for example, informal meetings between prosecutors and defense attorneys. Thus, while victims are entitled to notice of a court hearing on whether to accept a negotiated plea, they would not be entitled to notice of an office meeting between a prosecutor and a defense attorney to discuss such an arrangement.
Victims' rights under this provision are also limited to 'public' proceedings. Some proceedings, such as grand jury investigations, are not open to the public and accordingly would not be open to the victim. Other proceedings, while generally open, may be closed in some circumstances. For example, while plea proceedings are generally open to the public, a court might decide to close a proceeding in which an organized crime underling would plead guilty and agree to testify against his bosses. Another example is provided by certain national security cases in which access to some proceedings can be restricted. See 'The Classified Information Procedures Act,' 18 U.S.C. app. 3. A victim would have no special right to attend. The amendment works no change in the standards for closing hearings, but rather simply recognizes that such nonpublic hearings take place. Of course, nothing in the amendment would forbid the court, in its discretion, to allow a victim to attend even such a nonpublic hearing.(see footnote 33)
''Timely'' notice would require that the victim be informed enough in advance of a public proceeding to be able reasonably to organize his or her affairs to attend. Oftentimes the practice in the criminal courts across the country is to schedule proceedings, whether last minute or well in advance, without any notice to the victim. Even in those jurisdictions which purport to extend to victims the right to not be excluded or the right to be heard, these proceedings without notice to the victim render meaningless any participatory right. Of course, it goes without saying, the defendant, the state, and the court always have notice; failure to provide notice to any of the three would render the ensuing action void. Victims seek no less consideration; indeed, principles of fairness and decency demand no less.
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Witnesses before both the full House and Senate Judiciary Committees 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 Task Force Report 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. The New Directions 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.(see footnote 34)
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 notice of public 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 in ''their'' case. Surely it is time to protect this fundamental interest of crime victims by securing an enduring right to notice in the Constitution.
of any release or escape of the accused
Reasonable and timely notice of releases or escapes is a matter of profound importance to the safety of victims of violent crime. Twenty years after the President's Task Force report victims are still learning ''by accident''(see footnote 35) of the release of the person accused or convicted of attacking them.(see footnote 36) This continuing threat to safety must be brought to an end.(see footnote 37)
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Because of technological advances, automatic phone systems, web-based systems, and other modern notification systems are all widely and reasonably available. As the Senate Judiciary Report noted, ''New technologies are becoming more widely available that will simplify the process of providing this notice. For example, automated voice response technology exists that can be programmed to place repeated telephone calls to victims whenever a prisoner is released, which would be reasonable notice of the release. As technology improves in this area, what is 'reasonable' may change as well.''(see footnote 38)
not to be excluded from such public proceeding
This right parallels the language that had been reported out of the Senate Judiciary Committee in April, 2000. The comments from the Senate Judiciary Report remain instructive:
Victims are given the right 'not to be excluded' from public proceedings. This builds on the 1982 recommendation from the President's Task Force on Victims of Crime that victims 'no less than the defendant, have a legitimate interest in the fair adjudication of the case, and should therefore, as an exception to the general rule providing for the exclusion of witnesses, be permitted to be present for the entire trial.' President's Task Force on Victims of Crime, 'Final Report,' 80 (1982).
The right conferred is a negative one—a right 'not to be excluded'—to avoid the suggestion that an alternative formulation—a right 'to attend'—might carry with it some government obligation to provide funding, to schedule the timing of a particular proceeding according to the victim's wishes, or otherwise assert affirmative efforts to make it possible for a victim to attend proceedings. 'Accord,' Ala. Code Sec. 15–14–54 (right 'not [to] be excluded from court or counsel table during the trial or hearing or any portion thereof * * * which in any way pertains to such offense'). The amendment, for example, would not entitle a prisoner who was attacked in prison to a release from prison and plane ticket to enable him to attend the trial of his attacker. This example is important because there have been occasional suggestions that transporting prisoners who are the victims of prison violence to courthouses to exercise their rights as victims might create security risks. These suggestions are misplaced, because the Crime Victims' Rights Amendment does not confer on prisoners any such rights to travel outside prison gates. Of course, as discussed below, prisoners no less than other victims will have a right to be 'heard, if present, and to submit a statement' at various points in the criminal justice process. Because prisoners ordinarily will not be 'present,' they will exercise their rights by submitting a 'statement.' This approach has been followed in the States. See, e.g., Utah Code Ann. 77–38–5(8); Ariz. Const. art. II, 2.1.
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In some important respects, a victim's right not to be excluded will parallel the right of a defendant to be present during criminal proceedings. See Diaz v. United States, 223 U.S. 442, 454–55 (1912). It is understood that defendants have no license to engage in disruptive behavior during proceedings. See, e.g., Illinois v. Allen, 397 U.S. 337, 343 (1977); Foster v. Wainwright, 686 F.2d 1382, 1387 (11th Cir. 1982). Likewise, crime victims will have no right to engage in disruptive behavior and, like defendants, will have to follow proper court rules, such as those forbidding excessive displays of emotion or visibly reacting to testimony of witnesses during a jury trial.(see footnote 39)
Few experiences in the justice system are more devastating than an order to a victim that he or she may not enter the courtroom during otherwise public proceedings in the case involving their own victimization.
Collene and Gary Campbell of San Juan Capistrano, California still remember the pain and injustice of being forced to sit, literally, on a hard bench outside the courtroom during the trial of their son's murderer, while the murderers' family members were allowed entry and preferential seating in the courtroom. Collene and Gary were excluded as a tactical ploy by the defense, who listed them as witnesses, never intending to call them, but rather intending only to invoke ''the rule'' excluding witnesses. Such exclusion happens every day in courtrooms across the country. And yet exceptions are made to the rule of exclusion. Of course, it does not apply to defendants, who may take the stand to testify in their own defense, nor does the rule apply, in most jurisdictions, to the government's chief investigator, who although a witness, often sits at counsel table throughout the trial, assisting the prosecutor. Simple principles of fairness demand that we do no less for victims. This will ensure that Collene and Gary's wait will not have been in vain.
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reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings
The right to be ''heard,'' along with ''notice,'' and the right ''not to be excluded'' form the bedrock of any system of fair treatment for victims. The right established here is to be heard before the relevant decision-maker at five critical public proceedings, first at ''public release proceedings.'' The language extends its reach to both post-arrest and post-conviction public release proceedings. Thus the victim of domestic violence would have the right to tell a releasing authority, for example before an Initial Appearance Court, about the circumstances of the assault and the need for any special conditions of release that may be necessary to protect the victim's safety. The right would also extend to post-conviction public release proceedings, for example parole or conditional release hearings. In jurisdictions that have abolished parole in favor of ''truth in sentencing'' regimes, many still have conditional release. Only if the jurisdiction also has a ''public proceeding'' prior to such a conditional release would the right attach. The language would extend however, to any post-conviction public proceeding that could lead to the release of the convicted offender.
When a case is resolved through a plea bargain that the victim never knows about, until after the fact, there is a deeply impactful wound caused the justice system itself. One of the more famous quotes reported by the President's Task Force was from a woman in Virginia. ''Why didn't anyone consult me? I was the one who was kidnapped, not the State of Virginia.''(see footnote 40) This cry for justice, for a voice not a veto, is heard throughout the country still.
The Senate Judiciary Report provides further background in understanding the meaning and intent of the language:
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This gives victims the right to be heard before the court accepts a plea bargain entered into by the prosecution and the defense before it becomes final. The Committee expects that each State will determine for itself at what stage this right attaches. It may be that a State decides the right does not attach until sentencing if the plea can still be rejected by the court after the presentence investigation is completed. As the language makes clear, the right involves being heard when the court holds its hearing on whether to accept a plea. Thus, victims do not have the right to be heard by prosecutors and defense attorneys negotiating a deal. Nonetheless, the Committee anticipates that prosecutors may decide, in their discretion, to consult with victims before arriving at a plea. Such an approach is already a legal requirement in many States, see 'National Victim Center, 1996 Victims' Rights Sourcebook,' 127–31 (1996), is followed by many prosecuting agencies, see, e.g., Senate Judiciary Committee hearing, April 28, 1998, statement of Paul Cassell, at 35–36, and has been encouraged as sound prosecutorial practice. See U.S. Department of Justice, Office for Victims of Crime, 'New Directions from the Field: Victims' Rights and Services for the 21st Century,' 15–16 (1998). This trend has also been encouraged by the interest of some courts in whether prosecutors have consulted with the victim before arriving at a plea. Once again, the victim is given no right of veto over any plea. No doubt, some victims may wish to see nothing less than the maximum possible penalty (or minimum possible penalty) for a defendant. Under the amendment, the court will receive this information, along with that provided by prosecutors and defendants, and give it the weight it believes is appropriate deciding whether to accept a plea. The decision to accept a plea is typically vested in the court and, therefore, the victims' right extends to these proceedings. See, e.g., Fed. R. Crim. Pro. 11(d)(3); see generally Douglas E. Beloof, 'Victims in Criminal Procedure,' 462–88 (1999).(see footnote 41)
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The right to be heard also extends to ''public sentencing proceedings.'' Professor Paul Cassell, in his March 24, 1999 testimony before the U. S. Senate Committee on the Judiciary wrote movingly of the importance of this right. In replying to the assumption that a judge or jury can comprehend the full harm caused by a murder without hearing testimony from the surviving family members, Prof. Cassell wrote:
That assumption is simply unsupportable. Any reader who disagrees with me should take a simple test. Read an actual victim impact statement from a homicide case all the way through and see if you truly learn nothing new about the enormity of the loss caused by a homicide. Sadly, the reader will have no shortage of such victim impact statements to choose from. Actual impact statements from court proceedings are accessible in various places.[42] Other examples can be found in moving accounts written by family members who have lost a loved one to a murder. A powerful example is the collection of statements from families devastated by the Oklahoma City bombing collected in Marsha Kight's affecting Forever Changed: Remembering Oklahoma City April 19, 1995.[43] Kight's compelling book is not unique, as equally powerful accounts from the family of Ron Goldman,[44] children of Oklahoma City,[45] Alice Kaminsky,[46] George Lardner Jr.,[47] Dorris Porch and Rebeca Easley,[48] Mike Reynolds,[49] Deborah Spungen,[50] John Walsh,[51] and Marvin Weinstein[52] make all too painfully clear. Intimate third party accounts offer similar insights about the generally unrecognized yet far-ranging consequences of homicide.[53]
Professor Bandes acknowledges the power of hearing from victims' families. Indeed, in a commendable willingness to present victim statements with all their force, she begins her article by quoting from victim impact statement at issue in Payne v. Tennessee, a statement from Mary Zvolanek about her daughter's and granddaughter's deaths and their effect on her three-year-old grandson:
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He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.[54]
Bandes quite accurately observes that the statement is ''heartbreaking'' and ''[o]n paper, it is nearly unbearable to read.''[55] She goes on to argue that such statements are ''prejudicial and inflammatory'' and ''overwhelm the jury with feelings of outrage.''[56] In my judgment, Bandes fails here to distinguish sufficiently between prejudice and unfair prejudice from a victim's statement. It is a commonplace of evidence law that a litigant is not entitled to exclude harmful evidence, but only unfairly harmful evidence.[57] Bandes appears to believe that a sentence imposed following a victim impact statement rests on unjustified prejudice; alternatively, one might conclude simply that the sentence rests on a fuller understanding of all of the murder's harmful ramifications. What is ''heartbreaking'' and ''nearly unbearable to read'' about what it is like for a three-year-old to witness the murder of his mother and his two-year-old sister? The answer, judging from why my heart broke as I read the passage, it that we can no longer treat the crime as some abstract event. In other words, we begin to realize the nearly unbearable heartbreak—that is, the actual and total harm—that the murderer inflicted.[58] Such a realization may hamper a defendant's efforts to escape a capital sentence. But given that loss is a proper consideration for the jury, the statement is not unfairly detrimental to the defendant. Indeed, to conceal such evidence from the jury may leave them with a distorted, minimized view of the impact of the crime.[59] Victim impact statements are thus easily justified because they provide the jury with a full picture of the murder's consequences.[60]
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Bandes also contends that impact statements ''may completely block'' the ability of the jury to consider mitigation evidence.[61] It is hard to assess this essentially empirical assertion, because Bandes does not present direct empirical support.[62] Clearly many juries decline to return death sentences even when presented with powerful victim impact testimony, with Terry Nichols' life sentence for conspiring to set the Oklahoma City bomb a prominent example. Indeed, one recent empirical study of decisions from jurors who actually served in capital cases found that facts about adult victims ''made little difference'' in death penalty decisions.[63] A case might be crafted from the available national data that Supreme Court decisions on victim impact testimony did, at the margin, alter some cases. It is arguable that the number of death sentences imposed in this country fell after the Supreme Court prohibited use of victim impact statements in 1987[64] and then rose when the Court reversed itself a few years later.[65] This conclusion, however, is far from clear[66] and, in any event, the likelihood of a death sentence would be, at most, marginal. The empirical evidence in non-capital cases also finds little effect on sentence severity. For example, a study in California found that ''[t]he right to allocution at sentence has had little net effect . . . on sentences in general.''[67] A study in New York similarly reported ''no support for those who argue against [victim impact] statements on the grounds that their use places defendants in jeopardy.''[68] A recent comprehensive review of all of the available evidence in this country and elsewhere by a careful scholar concludes ''sentence severity has not increased following the passage of [victim impact] legislation.''[69] It is thus unclear why we should credit Bandes' assertion that victim impact statements seriously hamper the defense of capital defendants.
Even if such an impact on capital sentences were proven, it would be susceptible to the reasonable interpretation that victim testimony did not ''block'' jury understanding, but rather presented information about the full horror of the murder or put in context mitigating evidence of the defendant. Professor David Friedman has suggested this conclusion, observing that ''[i]f the legal rules present the defendant as a living, breathing human being with loving parents weeping on the witness stand, while presenting the victim as a shadowy abstraction, the result will be to overstate, in the minds of the jury, the cost of capital punishment relative to the benefit.''[70] Correcting this misimpression is not distorting the decision-making process, but eliminating a distortion that would otherwise occur.[71] This interpretation meshes with empirical studies in non-capital cases suggesting that, if a victim impact statement makes a difference in punishment, the description of the harm sustained by the victims is the crucial factor.[72] The studies thus indicate that the general tendency of victim impact evidence is to enhance sentence accuracy and proportionality rather than increase sentence punitiveness.[73]
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Finally, Bandes and other critics argue that victim impact statements result in unequal justice.[74] Justice Powell made this claim in his since-overturned decision in Booth v. Maryland, arguing that ''in some cases the victim will not leave behind a family, or the family members may be less articulate in describing their feelings even though their sense of loss is equally severe.''[75] This kind of difference, however, is hardly unique to victim impact evidence.[76] To provide one obvious example, current rulings from the Court invite defense mitigation evidence from a defendant's family and friends, despite the fact the some defendants may have more or less articulate acquaintances. In Payne, for example, the defendant's parents testified that he was ''a good son'' and his girlfriend testified that he ''was affectionate, caring, and kind to her children.''[77] In another case, a defendant introduced evidence of having won a dance choreography award while in prison.[78] Surely this kind of testimony, no less than victim impact statements, can vary in persuasiveness in ways not directly connected to a defendant's culpability.[79] Yet it is routinely allowed. One obvious reason is that if varying persuasiveness were grounds for an inequality attack, then it is hard to see how the criminal justice system could survive at all. Justice White's powerful dissenting argument in Booth went unanswered, and remains unanswerable: ''No two prosecutors have exactly the same ability to present their arguments to the jury; no two witnesses have exactly the same ability to communicate the facts; but there is no requirement . . . the evidence and argument be reduced to the lowest common denominator.''[80]
Given that our current system allows almost unlimited mitigation evidence on the part of the defendant, an argument for equal justice requires, if anything, that victim statements be allowed. Equality demands fairness not only between cases, but also within cases.[81] Victims and the public generally perceive great unfairness in a sentencing system with ''one side muted.''[82] The Tennessee Supreme Court stated the point bluntly in its decision in Payne, explaining that ''[i]t is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant . . . without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.''[83] With simplicity but haunting eloquence, a father whose ten-year-old daughter Staci was murdered, made the same point. Before the sentencing phase began, Marvin Weinstein asked the prosecutor to speak to the jury because the defendant's mother would have the chance to do so. The prosecutor replied that Florida law did not permit this. Here was Weinstein's response to the prosecutor:
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What? I'm not getting a chance to talk to the jury? He's not a defendant anymore. He's a murderer! A convicted murderer! The jury's made its decision. . . . His mother's had her chance all through the trial to set there and let the jury see her cry for him while I was barred.[84] . . . Now she's getting another chance? Now she's going to sit there in that witness chair and cry for her son, that murderer, that murderer who killed my little girl! Who will cry for Staci? Tell me that, who will cry for Staci?[85]
There is no good answer to this question,[86] a fact that has led to a change in the law in Florida and, indeed, all around the country. Today the laws of the overwhelming majority of states admit victim impact statements in capital and other cases.[87] These prevailing views lend strong support to the conclusion that equal justice demands the inclusion of victim impact statements, not their exclusion.
These arguments sufficiently dispose of the critics' main contentions.[88] Nonetheless, it is important to underscore that the critics generally fail to grapple with one of the strongest justifications for admitting victim impact statements: avoiding additional trauma to the victim. For all the fairness reasons just explained, gross disparity between defendants' and victims' rights to allocute at sentencing creates the risk of serious psychological injury to the victim.[89] As Professor Doug Beloof has nicely explained, a justice system that fails to recognize a victim's right to participate threatens ''secondary harm''—that is, harm inflicted by the operation of government processes beyond that already caused by the perpetrator.[90] This trauma stems from the fact that the victim perceives that the system's resources ''are almost entirely devoted to the criminal, and little remains for those who have sustained harm at the criminal's hands.''[91] As two noted experts on the psychological effects of crime have concluded, failure to offer victims a chance to participate in criminal proceedings can ''result in increased feelings of inequity on the part of the victims, with a corresponding increase in crime-related psychological harm.''[92] On the other hand, there is mounting evidence that ''having a voice may improve victims' mental condition and welfare.''[93] For some victims, making a statement helps restore balance between themselves and the offenders. Others may consider it part of a just process or may want to communicate the impact of the offense to the offender.[94] This multiplicity of reasons explains why victims and surviving family members want so desperately to participate in sentencing hearings, even though their participation may not necessarily change the outcome.[95]
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The possibility of the sentencing process aggravating the grievous injuries suffered by victims and their families is generally ignored by the Amendment's opponents. But this possibility should give us great pause before we structure our criminal justice system to add the government's insult to criminally-inflicted injury. For this reason alone, victims and their families, no less than defendants, should be given the opportunity to be heard at sentencing.(see footnote 42)
the right to adjudicative decisions that duly consider the victim's safety
As used in this clause, ''adjudicative decisions'' includes both court decisions and decisions reached by adjudicative bodies, such as paroles boards. Any decision reached after a proceeding in which different sides of an issue would be presented would be an adjudicative decision. Again the clause should be interpreted to achieve the purposes inherent in an amendment that extends rights to crime victims.
The requirement to ''duly consider'' is a requirement to fully and fairly consider the interest at issue. The language would not require that the interest at issue always control a decision. Hence, decisions that implicate the victim's safety, for example, release and sentencing decisions, would not be forced, by the language, to any particular result, (e.g., jail vs. no jail or high bond vs. no bond pending trial, or longer rather shorter prison sentences after conviction). Rather the constitutional mandate would simply be to hear and consider the victim's interest and to demonstrate that the interest was factored into the final decision. It is expected that records of decisions would reflect consideration of the victim's interest.
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For women and children who are the victims of domestic violence, the right to have safety considered as a factor before any release decision is made, or before any sentence is imposed is a right of life and death importance.(see footnote 43)
interest in avoiding unreasonable delay
Had this provision already been the law it would have been welcome news for Sally Goelzer and her brother Jim Bone from Phoenix, Arizona. Sally and Jim's brother, Hal Bone was murdered on Thanksgiving Day, 1995. Hal had been the victim of an attempted robbery by a gang member in Phoenix, had summoned the courage to report the offense and help the police track down the suspect so that he could not hurt others. Hal was scheduled to testify against the defendant the following January, 1996. His good citizenship got him killed. The defendant and another member of the same gang murdered Hal so he could not testify.
Arizona is one of 32 states that have enacted a state constitutional amendment for victims rights.(see footnote 44) Arizona's is one of the stronger amendments. Three of the guarantees for victims are the ''rights'' to ''due process'' and to a ''speedy trial,'' and to ''a prompt and final conclusion of the case after conviction.''(see footnote 45) Arizona victims even have standing to assert their rights in court.(see footnote 46)
Unfortunately for Sally and Jim, these rights, on behalf of their murdered brother, were hollow promises. The murderers' trial did not begin until January 1999, more than four years after the murderers had been arrested. Continuances were constantly granted without notice to Jim and Sally and without any consideration for their rights. The two murderers were convicted of First Degree Murder when the trial concluded the same month it had begun. By the late summer of 2000 the murderers had not yet been sentenced. Again, despite their state constitutional rights, continuances were granted without notice to them and without respecting their rights to be heard. Finally the ordeal came to an end when the two murderers were sentenced in July and August of 2001,(see footnote 47) five and one-half years after Hal's murder, and two and one-half years after the convictions.
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Such is the state of victims' rights in the States.(see footnote 48) Sally and Jim were cloaked in all the majesty that the law of the State of Arizona could muster. Regrettably for those interested in fair play and balance for crime victims in the criminal justice system it was not enough. Month after month, for close to six years, they summoned the strength to go to court, schedule time off work, and re-live the murder of their brother, over and over again, while the defendants sought tactical advantage through endless delays. The years of delay exacted an enormous physical, emotional, and financial toll.
The Senate Judiciary Report provides more insight into the meaning of the victim's interest in avoiding unreasonable delay:
Just as defendants currently have a right to a 'speedy trial,' this provision will give victims a protected right in having their interests to a reasonably prompt conclusion of a trial considered. The right here requires courts to give 'consideration' to the victims' interest along with other relevant factors at all hearings involving the trial date, including the initial setting of a trial date and any subsequent motions or proceedings that result in delaying that date. This right also will allow the victim to ask the court to, for instance, set a trial date if the failure to do so is unreasonable. Of course, the victims' interests are not the only interests that the court will consider. Again, while a victim will have a right to be heard on the issue, the victim will have no right to force an immediate trial before the parties have had an opportunity to prepare. Similarly, in some complicated cases either prosecutors or defendants may have unforeseen and legitimate reasons for continuing a previously set trial or for delaying trial proceedings that have already commenced. But the Committee has heard ample testimony about delays that, by any measure, were 'unreasonable.' See, e.g., Senate Judiciary Committee hearing, April 16, 1997, statement of Paul Cassell, at 115–16. This right will give courts the clear constitutional mandate to avoid such delays.
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In determining what delay is 'unreasonable,' the courts can look to the precedents that exist interpreting a defendant's right to a speedy trial. These cases focus on such issues as the length of the delay, the reason for the delay, any assertion of a right to a speedy trial, and any prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530–33 (1972). Courts will no doubt develop a similar approach for evaluating victims' claims. In developing such an approach, courts will undoubtably recognize the purposes that the victim's right is designed to serve. Cf. Barker v. Wingo, 407 U.S. 514, 532 (1972) (defendant's right to a speedy trial must be 'assessed in the light of the interest of defendant which the speedy trial right was designed to protect').
The Committee intends for this right to allow victims to have the trial of the accused completed as quickly as is reasonable under all of the circumstances of the case, giving both the prosecution and the defense a reasonable period of time to prepare. The right would not require or permit a judge to proceed to trial if a criminal defendant is not adequately represented by counsel.
The Committee also anticipates that more content may be given to this right in implementing legislation. For example, the Speedy Trial Act of 1974 (Public Law 93–619 (amended by Public Law 96–43), codified at 18 U.S.C. 3152, 3161) already helps to protect a defendant's speedy trial right. Similar legislative protection could be extended to the victims' new right.(see footnote 49)
just and timely claims to restitution from the offender
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Jane Doe(see footnote 50) was beaten and raped in a remote wooded area of Vermont. She was left to die, but she miraculously survived, crawling through the woods until she came upon some campers. Her injuries were extensive. The rapist was caught four days later. When her case was resolved by way of a plea bargain she was not given the right to speak before the court. Incredibly, the sentence imposed did not order the criminal to pay restitution. Today he earns $7.50 an hour making furniture inside the prison walls—and none of it goes to her for her damages and injuries because it was not part of the criminal sentence. If this provision had been the law, Jane would today be receiving restitution payments each month.
Critics argue against putting restitution into the Constitution saying that criminals often cannot pay it. Jane's case is a good example of how wrong the critics are. The language requires the court to consider the victim's claim to restitution. The nature of the claim will be governed by State or Federal law, as appropriate to the jurisdiction.
These rights shall not be restricted except when and to the degree dictated
Clearly no one of the Bill of Rights is absolute; restrictions have been applied, in varying conditions, based on varying standards, throughout the history of the nation.(see footnote 51) As noted above, the amendment sets up a distinction between ''denying'' a right, which may not be done, and ''restricting'' a right, which may only be done in three narrowly drawn circumstances. In order to justify a restriction there must be a finding (''except when . . . dictated'') of one of the three circumstances. If found, the restriction must be narrowly tailored (''to the degree dictated'') to meet the needs of the circumstance.(see footnote 52) The proposed restriction language settles what might otherwise be years of vexing litigation over what the proper standard would be for allowing restrictions.
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by a substantial interest
The ''substantial ''interest'' standard is known in constitutional jurisprudence(see footnote 53) and is intended to be high enough so that only ''essential''(see footnote 54) interests in public safety and the administration of justice will qualify as justifications for restrictions of the enumerated rights.
in public safety
In discussing the ''compelling interest'' standard of S. J. Res. 3, the Senate Judiciary Report noted, ''In cases of domestic violence, the dynamics of victim-offender relationships may require some modification of otherwis