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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

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

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

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

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

(III)

C O N T E N T S

MAY 9, 2002

OPENING STATEMENT

Page

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Robert C. Scott, a Representative in Congress From the State

of Virginia ............................................................................................................. 2

The Honorable Jerrold Nadler, a Representative in Congress From the State

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

The Honorable Edward R. Royce, a Representative in Congress From the

State of California ................................................................................................ 5

The Honorable John B. Shadegg, a Representative in Congress From the

State of Arizona .................................................................................................... 6

WITNESSES

Mr. Steven J. Twist, Assistant General Counsel, Viad Corporation and Member, Steering Committee for the National Victims’ Rights Constitutional

Amendment Network

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 11

Ms. Roberta Roper, Executive Director, Stephanie Roper Committee and

Foundation, Inc.

Oral Testimony ..................................................................................................... 37

Prepared Statement ............................................................................................. 40

Mr. James Orenstein, Partner, Baker & Hostetler, New York City

Oral Testimony ..................................................................................................... 42

Prepared Statement ............................................................................................. 45

Mr. David L. Voth, Executive Director and Victim-Offender Mediator, Crime

Victim Services of Allen and Putnam Counties, OH

Oral Testimony ..................................................................................................... 53

Prepared Statement ............................................................................................. 55

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable James A. Barcia, a Representative

in Congress From the State of Michigan ........................................................... 4

Letter from Gordon J. Campbell, Chief Executive Officer, Safe Horizons .......... 63

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 .................................................................................... 66

Position Paper by the National Clearinghouse for the Defense of Battered

Women .................................................................................................................. 72

Page

IV

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Jon Kyl, a U.S. Senator From the

State of Arizona .................................................................................................... 79

Prepared Statement of Bud Welch ......................................................................... 82

Prepared Statement of Douglas Beloof, Associate Professor, College of Law,

Lewis & Clark College ......................................................................................... 86

Letter from Roberta Roper, Executive Director, Stephanie Roper Committee

and Foundation, Inc. ............................................................................................ 89

(1)

VICTIMS’ RIGHTS AMENDMENT

THURSDAY, MAY 9, 2002

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

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.

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

2

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.

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?

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

3

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.

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

4

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.

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.

[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 subcommittee 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

5

the perpetrator is released or escapes from custody. Their safety should be considered when the defendant might be released from custody.

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.

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.

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

6

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.

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.

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

7

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.

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.

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

8

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.

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

9

Constitutional Amendment network. And we welcome you here this

afternoon.

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 cochairperson 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.

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

10

stop at that point, or shortly thereafter. So without further adieu,

Mr. Twist.

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.

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

11

1 Rights of Crime Victims Constitutional Amendment: Hearing on H. J. Res. 64, Before the

Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives,

106th Cong., 2nd Sess. 121 (Feb. 10, 2000). Since my last appearance before the subcommittee,

I have begun to serve as an Adjunct Professor of Law at the College of Law at Arizona State

University where I teach a course on the rights of crime victims in criminal procedure. I also

have founded the Victims Legal Assistance Project, which is a free legal clinic for crime victims

Continued

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.

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.

[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.1

12

operating at the law school. The project, a partnership between ASU and Arizona Voice for

Crime Victims, a statewide coalition of victims rights and services organizations in my state,

provides free legal representation for crime victims helping them to assert their state constitutional and statutory rights in criminal cases. I currently serve as Vice President for Public Policy for the National Organization for Victim Assistance, the nation’s oldest and largest victims

rights organization, I serve on the Board of Trustees of the National Organization of Parent’s of Murdered Children, and I serve as General Counsel, and a member of the executive committee, of the National Victims Constitutional Amendment Network. I am honored to represent

these organizations here today. 2 ‘‘As majestic bells of bolts struck shadows in the sounds

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. 3President’s Task Force on Victims of Crime, ‘Final Report,’ 114 (1982).

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.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.

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

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.3

13

4See LeRoy L. Lamborn, Victim Participation in the Criminal Justice Process: The Proposals

for a Constitutional Amendment, 34 Wayne L. Rev. 125, 129 (1987). 5See Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’ Rights Amendment, Utah L. Rev. 1373, 1381–83 (1994) (recounting the history of crime

victims’ rights). 6Senate Judiciary Committee hearing, April 23, 1996, statement of Robert E. Preston, at 40.

7See Ala. Const. amend. 557; Alaska Const. art. I, Sec. 24; Ariz. Const. art. II, 2.1; Cal. Const.

art. I, 12, 28; Colo. Const. art. II, 16a; Conn. Const. art. I, 8(b); Fla. Const. art. I, 16(b); Idaho

Const. Art. I, 22; Ill. Const. art. I, 8.1; Ind. Const. art. I, 13(b); Kan. Const. art. 15, 15; La.

Const. art. 1, 25; Md. Decl. of Rights art. 47; Mich. Const. art. I, 24; Miss. Const. art. 3, 26A;

Mo. Const. art. I, 32; Neb. Const. art. I, 28; Nev. Const. art. I, 8; N.J. Const. art. I, 22; New

Mex. Const. art. 2, 24; N.C. Const. art. I, 37; Ohio Const. art. I, 10a; Okla. Const. art. II, 34;

R.I. Const. art. I, 23; S.C. Const. art. I, S 24; Tenn. Const. art. 1, 35; Tex. Const. art. 1, 30;

Utah Const. art. I, 28; Va. Const. art. I, 8–A; Wash. Const. art. 2, 33; Wis. Const. art. I, 9m.

These amendments passed with overwhelming popular support.] 8Paul G. Cassell, Professor of Law, University of Utah College of Law, Statement Before the

Committee on the Judiciary, United States Senate, Responding to the Critics of the Victims’ Rights Amendment, (March 24, 1999):

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). 9 Committee on the Judiciary, 79–010, Calendar No. 299, 106th Congress Report, Senate 2d

Session 106, 254, S. J. Res. 3: Crime Victims’ Rights Constitutional Amendment, April 4, 2000

(hereinafter ‘‘Senate Judiciary Report’’). (‘‘With the passage of and experience with these State

constitutional amendments came increasing recognition of both the national consensus supporting victims’ rights and the difficulties of protecting these rights with anything other than

a Federal amendment. As a result, the victims’ advocates—including most prominently the National Victims Constitutional Amendment Network (NVCAN)—decided in 1995 to shift its focus

toward passage of a Federal amendment.’’)

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.4

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.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.’’ 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,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.8

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.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

14

10 Committee on the Judiciary, Legislative Hearing on Proposals for Constitutional Amendment to Provide Rights for Victims of Crime, H. J. Res 173 and H. J. Res. 174, July 11, 1996 11See Senate Judiciary Report. 12 Id. 13 ‘‘Ultimately, in the face of a threatened filibuster, Senator Kyl and I decided to withdraw

the amendment.’’ Congressional Record Statement by Senator Dianne Feinstein on Introduction

of S.J. Res. 35, April 15, 2002. 14Such a consensus had always eluded proponents in discussion with the prior Administration. See National Organization for Victim Assistance, Newsletter, Volume 19, Numbers 2 and

3 (of 12 issues), 2000 which reported the following history:

Administration Reservations

Judiciary, under the leadership of then Chairmen Henry Hyde held hearings on

companion proposals in the House.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.

6.11

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.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.

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.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.14

15

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 . . .’’

...

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. 15Democratic National Committee, The 2000 Democratic National Platform: Prosperity,

Progress, and Peace (2000):

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 crimiContinued

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.

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 15 and the Republican National

16

nals, 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. 16 Republican National Committee, Republican Platform 2000: Renewing America’s Purpose.

Together. (2000) (supporting ‘‘A constitutional amendment to protect victims’ rights at every

stage of the criminal justice system.’’) 17Statement of President Bill Clinton, June 25, 1996 from the White House:

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. 18Statement of President George W. Bush from the Department of Justice, April 16, 2002

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. 19Statement of Attorney General Janet Reno, House Committee on the Judiciary, Supporting

House Joint Resolution 71 (June 25, 1997):

Based on our personal experiences and the extensive review and analysis that has been conducted at our direction, the President and I have concluded that an amendment to the Constitution to protect victims’ rights is warranted. We have come to that conclusion for a number of

important reasons.

First, unless the Constitution is amended to ensure basic rights to crime victims, we will

never correct the existing imbalance in this country between defendants’ constitutional rights

and the current haphazard patchwork of victims’ rights. While a person arrested or convicted

for a crime anywhere in the United States knows that he is guaranteed certain basic minimum

protection under our nation’s most fundamental law, the victim of that crime has no guarantee

of rights beyond those that happen to be provided and enforced in the particular jurisdiction

where the crime occurred.

A victims’ rights amendment would ensure that courts will give weight to the interests of victims. When confronted with the need to reconcile the constitutional rights of a defendant with

the statutory rights of a victim, many courts often find it easiest simply to ignore the legitimate

interests of the victim. A constitutional amendment would require courts to engage in a careful

and conscientious analysis to determine whether a particular victim’s participation would adversely affect the defendant’s rights. The result will be a more sophisticated and responsive

criminal justice system that both protects the rights of the accused and the interests of victims.

Second, efforts to secure victims’ rights through means other than a constitutional amendment

have proved less than fully adequate.

Committee.16 Former President Clinton understood the need for a constitutional

amendment for crime victims rights 17 and President Bush has recently issued a

strong endorsement of the proposal before you.18 Former Attorney General Janet

Reno supported a constitutional amendment for victims rights 19 and Attorney GenVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 5602 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
17

20Statement of Attorney General John Ashcroft, Department of Justice, April 16, 2002:

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.

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. 21Senators Kyl and Feinstein have co-sponsored their amendment with leading senators from

both parties including Senate Minority Leader Trent Lott and Senator Joseph Biden, the distinguished former Chair of the Judiciary Committee. 22 National Governors’ Association, Policy 23.1 (‘‘Despite widespread state initiatives, the

rihgts of victims do not receive the same consideration or protection as the rights of the accused.

These rights exist on different judicial levels. Victims are relegated to a position of secondary

importance in the judicial process. . . . Protection of these basic rights is essential and can

omly come from a fundamental change in our basic law: the U. S. Constitution.’’) 23 ‘‘The proposed Crime Victims’ Rights Amendment would protect basic rights of crime victims, including their rights to be notified of and present at all proceedings in their case and

to be heard at appropriate stages in the process. These are rights not to be victimized again

through the process by which government officials prosecute, punish, and release accused or convicted offenders. These are the very kinds of rights with which our Constitution is typically and

properly concerned—rights of individuals to participate in all those government process that

strongly affect their lives.’’ Laurence H. Tribe and Paul G. Cassell, ‘‘Embed the Rights of Victims

in the Constitution,’’ L.A. Times, July 6, 1998, at B7. 24See Killian and Costello, The Constitution of the United States of America: Analysis and Interpretation, Senate Document 103–6, U. S. Gov’t Printing Office, p. 1105 (1992). (‘‘Conflict between constitutionally protected rights is not uncommon.’’ The text continues discussing the Supreme Court’s balancing of ‘‘a criminal defendant’s Fifth and Sixth Amendment rights to a fair

trial and the First Amendment’s rights protection of the rights to obtain and publish information about defendants and trials.’’) Id.

eral John Ashcroft recently announced his support for the proposed amendment.20

Each proposal for a constitutional amendment has received strong bi-partisan support in the United States Senate.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.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.23

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.24

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.

18

25 I pause here to note with some sadness and amusement that there are those who say they

are all in favor of ‘‘victims’ rights’’ laws, they just don’t want them in the Constitution. Such

laws, without constitutional authority or grounding, are like the ‘‘men without chests’’ referred

to by C. S. Lewis:

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). 26 U. S. Constitution, Amend. IX. 27See Senate Judiciary Report (‘‘In other words, the amendment sets a national ‘floor’ for the

protecting of victims rights, not any sort of ‘ceiling.’ Legislatures, including Congress, are certainly free to give statutory rights to all victims of crime, and the amendment will in all likelihood be an occasion for victims’ statutes to be re-examined and, in some cases, expanded.’’) 28 See Michigan v. Long, 463 U.S. 1032 (1983). 29Webster’s New Collegiate Dictionary, 304 (1977). 30 Cite Beloof Article

Defendants trump them, and the prevailing legal culture does not respect them.

They are geldings.25

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’’ 26 rights that may be established by other federal or state laws. The

amendment establishes a floor and not a ceiling of rights 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 con- stitution would be subject to the independent construction of the state’s courts 28

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;’’ 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

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.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 con- sideration:

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

19

31Senate Judiciary Report 32Killian and Costello, The Constitution of the United States of America: Analysis and Interpretation, Senate Document 103–6, U. S. Gov’t Printing Office, p. 341 (1992) (‘‘[Congress’] power

to create, define, and punish crimes and offenses whenever necessary to effectuate the objects

of the Federal Government is universally conceded.’’ (Numerous citations omitted).

of physical force against the person or property of another * * *.’’ (emphasis

added). The Committee anticipates that the phrase ‘‘crime of violence’’ will be

defined in these terms of ‘‘involving’’ violence, not a narrower ‘‘elements of the

offense’’ approach employed in other settings. See, e.g., 18 U.S.C. 16. Only this

broad construction will serve to protect fully the interests of all those affected

by criminal violence.

‘‘Crimes of violence’’ will include all forms of homicide (including voluntary

and involuntary manslaughter and vehicular homicide), sexual assault, kidnaping, robbery, assault, mayhem, battery, extortion accompanied by threats of

violence, carjacking, vehicular offenses (including driving while intoxicated)

which result in personal injury, domestic violence, and other similar crimes. A

‘‘crime of violence’’ can arise without regard to technical classification of the offense as a felony or a misdemeanor.

It should also be obvious that a ‘‘crime of violence’’ can include not only acts

of consummated violence but also of intended, threatened, or implied violence.

The unlawful displaying of a firearm or firing of a bullet at a victim constitutes

a ‘‘crime of violence’’ regardless of whether the victim is actually injured. Along

the same lines, conspiracies, attempts, solicitations and other comparable

crimes to commit a crime of violence should be considered ‘‘crimes of violence’’

for purposes of the amendment, if identifiable victims exist.

Similarly, some crimes are so inherently threatening of physical violence that

they could be ‘‘crimes of violence’’ for purposes of the amendment. Burglary, for

example, is frequently understood to be a ‘‘crime of violence’’ because of the potential for armed or other dangerous confrontation. See United States v.

Guadardo, 40 F.3d 102 (5th Cir. 1994); United States v. Flores, 875 F.2d 1110

(5th Cir. 1989).

Similarly, sexual offenses against a child, such as child molestation, can be

‘‘crimes of violence’’ because of the fear of the potential for force which is inherent in the disparate status of the perpetrator and victim and also because evidence of severe and persistent emotional trauma in its victims gives testament

to the molestation being unwanted and coercive. See United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). Sexual offenses against other vulnerable persons would similarly be treated as ‘‘crimes of violence,’’ as would, for example,

forcible sex offenses against adults and sex offenses against incapacitated

adults.

Finally, an act of violence exists where the victim is physically injured, is

threatened with physical injury, or reasonably believes he or she is being physically threatened by criminal activity of the defendant. For example, a victim

who is killed or injured by a driver who is under the influence of alcohol or

drugs is the victim of a crime of violence, as is a victim of stalking or other

threats who is reasonably put in fear of his or her safety. Also, crimes of arson

involving threats to the safety of persons could be ‘‘crimes of violence.’’ 31

It should be noted that the States, and the Federal Government,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

20

33See Senate Judiciary Report 34 New Directions, 13.

automated telephone notification systems. Any means that provides reasonable

notice to victims is acceptable.

‘Reasonable’ notice is any means likely to provide actual notice to a victim.

Heroic measures need not be taken to inform victims, but due diligence is required by government actors. It would, of course, be reasonable to require victims to provide an address and keep that address updated in order to receive

notices. ‘Reasonable’ notice is notice that permits a meaningful opportunity for

victims to exercise their rights. In rare mass victim cases (i.e., those involving

hundreds of victims), reasonable notice could be provided to means tailored to

those unusual circumstances, such as notification by newspaper or television

announcement.

Victims are given the right to receive notice of ‘proceedings.’ Proceedings are

official events that take place before, for example, trial and appellate courts (including magistrates and special masters) and parole boards. They include, for

example, hearings of all types such as motion hearings, trials, and sentencings.

They do not include, for example, informal meetings between prosecutors and

defense attorneys. Thus, while victims are entitled to notice of a court hearing

on whether to accept a negotiated plea, they would not be entitled to notice of

an office meeting between a prosecutor and a defense attorney to discuss such

an arrangement.

Victims’ rights under this provision are also limited to ‘public’ proceedings.

Some proceedings, such as grand jury investigations, are not open to the public

and accordingly would not be open to the victim. Other proceedings, while generally open, may be closed in some circumstances. For example, while plea proceedings are generally open to the public, a court might decide to close a proceeding in which an organized crime underling would plead guilty and agree to

testify against his bosses. Another example is provided by certain national security cases in which access to some proceedings can be restricted. See ‘The Classified Information Procedures Act,’ 18 U.S.C. app. 3. A victim would have no

special right to attend. The amendment works no change in the standards for

closing hearings, but rather simply recognizes that such nonpublic hearings

take place. Of course, nothing in the amendment would forbid the court, in its

discretion, to allow a victim to attend even such a nonpublic hearing.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.

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.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

21

35President’s Task Force on Victims of Crime, ‘‘Final Report,’’ 4–5 (1982). (‘‘ ‘One morning I

woke up, looked out my bedroom window and saw the man who had assaulted me standing

across the street staring at me. I thought he was in jail.’—a victim’’) 36See National Institute of Justice, Research in Brief, The Rights of Crime Vicitms—Does

Legal Protection Make a Difference?, 4 (Dec. 1998), finding that even in states that gave ‘‘strong

protection’’ to victims’ rights, fewer than 60 percent of the victims were notified of the sentencing hearing and fewer than 40 percent were notified of the pretrial release of the defendant., 37 U. S. Dep’t of Justice, Office for Victims of Crime, New Directions from the Field: Victims’

Rights and Services for the 21st Century 13 (1998). (‘‘Notification of victims when the defendants or offenders are released can be a matter of life and death. Around the country there are

a large number of documented cases of women and children being killed by defendants and convicted offenders recently released from jail or prison. In many cases, the victims were unable

to take precautions to save their lives because they had not been notified of the release.’’) 38Senate Judiciary Report.

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’’ 35 of the release of the person accused or convicted of attacking them.36 This continuing threat to safety must

be brought to an end.37

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.’’ 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.

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,

22

39Senate Judiciary Report 40Task Force Report at 9.

such as those forbidding excessive displays of emotion or visibly reacting to testimony of witnesses during a jury trial.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.

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.’’ 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:

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

23

41Senate Judiciary Report.

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).41

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:

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]

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

24

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]

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,

25

42Paul G. Cassell, Professor of Law, University of Utah College of Law, Statement Before the

Committee on the Judiciary, United States Senate, Responding to the Critics of the Victims’

Rights Amendment, pp.5–9 (March 24, 1999) (citations omitted).

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 re- sponse to the prosecutor:

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]

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.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,

26

43See note 32, supra. 44 Art. II, § 2.1 Ariz. Const. was enacted and became effective November, 1990. 45 Art. II; § 2.1 (A) (10), Ariz. Const. But see State ex rel Napolitano v. Brown, 982 P. 2d 815,

817 (Ariz. 1999) holding that the referenced sub-section and paragraph ‘‘creates no right’’ for

the victim. The case is shocking in the length it goes to eviscerate the guarantee of the state

constitution, in order to protect the monopoly rulemaking authority the Arizona Supreme Court

has constructed for itself, only further demonstrating the need for a Federal amendment. 46 A. R. S. § 13–4437 (A) (‘‘The victim has standing to seek an order or to bring a special action

mandating that the victim be afforded any right or to challenge an order denying any

right....’’) 47State of Arizona v. Richard Steven Rivas III, CR 1995—011372 (Maricopa County) (Sentencing August 24, 2001); State of Arizona v. James Anthony Sanchez, CR 1995—011372 (Maricopa County) (Sentencing July 9, 2001). 48Senate Judiciary Committee Hearing, April 28, 1998, Statement of Associate Attorney General Ray Fisher, at 9: ‘‘. . . the state legislative route to change has proven less than adequate

in according victims their rights.’’ Senate Judiciary Committee Hearing, March 24, 1999, Statement of Laurence Tribe, at 7: ‘‘. . .there appears to be a considerable body of evidence showing

that, even where statutory or regulatory or judge-made rules exist to protect the participatory

rights of victims, such rights often tend to be honored in the breach....’’

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.

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.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.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.’’ 45 Arizona victims even

have standing to assert their rights in court.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 2001,47 five and one-half years after Hal’s murder,

and two and one-half years after the convictions.

Such is the state of victims’ rights in the States.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

27

49Senate Judiciary Report 50 Interview with the Victim, April 30, 2002. The victim’s name is here withheld to protect

her privacy and dignity. Documentation of the facts is available upon request to the author. 51See e.g., Maryland v. Craig, 497 U. S. 836 (1990) holding that the Confrontation Clause does

not grant an absolute right to face-to-face confrontation. See also, note 22, supra. 52See e.g., Shelton v. Tucker, 364 U. S. 479 (1960) adopting ‘‘least restrictive means’’ standard

for restrictions on the right to association.

right also will allow the victim to ask the court to, for instance, set a trial date

if the failure to do so is unreasonable. Of course, the victims’ interests are not

the only interests that the court will consider. Again, while a victim will have

a right to be heard on the issue, the victim will have no right to force an immediate trial before the parties have had an opportunity to prepare. Similarly, in

some complicated cases either prosecutors or defendants may have unforeseen

and legitimate reasons for continuing a previously set trial or for delaying trial

proceedings that have already commenced. But the Committee has heard ample

testimony about delays that, by any measure, were ‘unreasonable.’ See, e.g.,

Senate Judiciary Committee hearing, April 16, 1997, statement of Paul Cassell,

at 115–16. This right will give courts the clear constitutional mandate to avoid

such delays.

In determining what delay is ‘unreasonable,’ the courts can look to the precedents that exist interpreting a defendant’s right to a speedy trial. These cases

focus on such issues as the length of the delay, the reason for the delay, any

assertion of a right to a speedy trial, and any prejudice to the defendant. See

Barker v. Wingo, 407 U.S. 514, 530–33 (1972). Courts will no doubt develop a

similar approach for evaluating victims’ claims. In developing such an approach,

courts will undoubtably recognize the purposes that the victim’s right is designed to serve. Cf. Barker v. Wingo, 407 U.S. 514, 532 (1972) (defendant’s right

to a speedy trial must be ‘assessed in the light of the interest of defendant

which the speedy trial right was designed to protect’).

The Committee intends for this right to allow victims to have the trial of the

accused completed as quickly as is reasonable under all of the circumstances of

the case, giving both the prosecution and the defense a reasonable period of

time to prepare. The right would not require or permit a judge to proceed to

trial if a criminal defendant is not adequately represented by counsel.

The Committee also anticipates that more content may be given to this right

in implementing legislation. For example, the Speedy Trial Act of 1974 (Public

Law 93–619 (amended by Public Law 96–43), codified at 18 U.S.C. 3152, 3161)

already helps to protect a defendant’s speedy trial right. Similar legislative protection could be extended to the victims’ new right.49

just and timely claims to restitution from the offender

Jane Doe 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.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.52 The proposed restriction language settles what might otherVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
28

53See e.g., Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.

S. 557 (1980). (‘‘The state must assert a substantial interest to be achieved by restrictions on

commercial speech. Moreover, the regulatory technique must be in proportion to that interest.’’ Id. At 564. The interest must be clearly articulated and then closely examined to determine

whether it is substantial. The Court’s analysis at 569 is instructive on this point.) 54Webster’s New Collegiate Dictionary, 1161 (1977). (‘‘Substantial . . . 1 a : consisting of or

relating to substance b : not imaginary or illusory : REAL, TRUE c : IMPORTANT, ESSENTIAL

...’’) 55Senate Judiciary Report 56See Bartnicki v. Vopper, 532 U. S. 514 (2001) where a ‘‘public safety’’ threat was to identified school board members.

wise be years of vexing litigation over what the proper standard would be for allowing restrictions.

by a substantial interest

The ‘‘substantial ‘‘interest’’ standard is known in constitutional jurisprudence 53

and is intended to be high enough so that only ‘‘essential’’ 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 otherwise typical victims’ rights provisions. This provision offers the ability to do just that. . . . [Moreover] situations

may arise involving intergang violence, where notifying the member of a rival gang

of an offenders’ impending release may spawn retaliatory violence. Again, this provision provides a basis for dealing with such situations.’’ 55

‘‘Public safety’’ as used here includes the safety of the public generally, as well

as the safety of identified individuals.56

the administration of criminal justice

It is intended that the language will address management issues within the courtroom or logistical issues arising when it would otherwise be impossible to provide

a right otherwise guaranteed. In cases involving a massive number of victims notice

of public proceedings may need to be given by other means, courtrooms may not be

large enough to accommodate every victim’s interest, and the right to be heard may

have to be exercised through other forms. The phrase is not intended to address

issues related to the protection of defendants’ rights.

The term ‘‘administration of criminal justice,’’ as used by the United States Supreme Court is a catch-all phrase that encompasses any aspect of criminal procedure. The term ‘‘administration’’ includes two components: (1) the procedural functioning of the proceeding and (2) the substantive interest of parties in the proceeding. The term ‘‘administration’’ in the Amendment is narrower than the broad

usage of it in Supreme Court case-law and refers to the first description: the procedural functioning of the proceeding. Among the many definitions available for the

term ‘‘administration’’ in Webster’s Third New International Dictionary of the

English Language (1971), the most appropriate definition to describe the term as

used in the Amendment is: ‘‘2b. Performance of executive [prosecutorial and judicial]

duties: management, direction, superintendence.’’ (Brackets added).

The potential for atypical circumstances necessitates giving courts and public

prosecutors the flexibility to find alternative methods for complying with victims

rights when there is a substantial necessity to do so. Thus, where compliance with

the exact letter of the right is either impossible or places a very heavy burden on

the judiciary or the public prosecutor, the amendment allows for limited flexibility.

For example, in a case such as the Oklahoma City bombing, it may be impossible

to comply with the right to attend the trial simply because all the victims will not

fit in the courtroom. It may be necessary for victims to view the trial in some other

fashion, such as by closed circuit television. Courts also may need to exclude a disruptive victim from the court in order to manage the courtroom appropriately. It

may also be that the prosecution cannot, due to unusual circumstances, comply with

a particular mandate in the Amendment. For example, in an unusual case like the

Twin Towers bombing there are so many victims it might be necessary to notify all

the victims of their rights through the media, as tracking down every address might

be impossible or places too heavy a burden on the public prosecutor.

29

57Senate Judiciary Report 58See text at n. 29, supra. 59 City of Boerne v. Flores, 521 U. S. 507 (1997)

or compelling necessity.

The Senate Judiciary Report noted, ‘‘The Committee-reported amendment provides that exceptions are permitted only for a ‘compelling’ interest. In choosing this

standard, formulated by the U.S. Supreme Court, the Committee seeks to ensure

that the exception does not swallow the rights. It is also important to note that the

Constitution contains no other explicit ‘exceptions’ to rights. The ‘compelling interest’ standard is appropriate in a case such as this in which an exception to a constitutional right can be made by pure legislative action.’’ 57

SECTION 3. Nothing in this article shall be construed to provide

grounds for a new trial or to authorize any claim for damages. Only the

victim or the victim’s lawful representative may assert the rights established by this article, and no person accused of the crime may obtain

any form of relief hereunder.

Nothing in this article shall be construed to provide grounds for a new trial to authorize any claim for damages.

The proposed language in no way limits the power to enforce the rights granted.

Rather it provides two narrowly tailored exceptions to the remedies that might otherwise be available in an enforcement action. The language creates the limitations

as a matter of constitutional interpretation.

Only the victim or the victim’s lawful representative

It is intended that both the word ‘‘victim’’ and the phrase ‘‘victim’s lawful representative’’ will be the subject of statutory definition, by the State Legislatures and

the Congress, within their respective jurisdictions.58 No single rule will govern these

definitions, as no single rule governs what conduct must be criminal. In the absence

of a statutory definition the courts would be free to look to the elements of an offense to determine who the victim is, and to use its power to appoint appropriate

lawful representatives.

may assert the rights established by this article

With the adoption of this clause there will be no question that victims have standing to assert the rights established.

no person accused of the crime may obtain any form of relief hereunder.

This clause makes it clear, even as does the foregoing clause (‘‘Only the victim

...’’), that the accused or convicted offender may obtain no relief in the event that

a victim’s right is violated.

SECTION 4. Congress shall have power to enforce by appropriate legislation the provisions of this article. Nothing in this article shall affect

the President’s authority to grant reprieves or pardons.

Congress shall have power to enforce by appropriate legislation the provisions of this

article.

Congress’ power to ‘‘enforce’’ established by this section carries limitations that

are important for [principles of federalism. The power to enforce is not the power

to define.59 As the Senate Judiciary Report noted:

This provision is similar to existing language found in section 5 of the 14th

Amendment to the Constitution. This provision will be interpreted in similar

fashion to allow Congress to ‘enforce’ the rights, that is, to ensure that the

rights conveyed by the amendment are in fact respected. At the same time, consistent with the plain language of the provision, the Federal Government and

the States will retain their power to implement the amendment. For example,

the States will, subject to Supreme Court review, flesh out the contours of the

amendment by providing definitions of ‘victims’ of crime and ‘crimes of violence.’

Nothing in this article shall affect the President’s authority to grant reprieves or pardons.

30

60 U. S. Const. Art. II, Sec. 2. 61 See e.g., U. S. Const. Amendments XX, XXI, and XXII. 62 In the 32 states with constitutional amendments for victims rights the measures passed by

an average popular vote of almost 80 percent. See www.nvcan.org (Index item: ‘‘state vra’’s) for

a state by state review.

The President’s constitutional authority to grant reprieves and pardons 60 remains

unaffected by the amendment. If the President were to establish, by executive order,

a public proceeding that would be required before a reprieve or pardon were to be

granted, the provisions of Section 2 arguably might require victim participation, but

nothing in the amendment would obligate the President to do this.

SECTION 5. This article shall be inoperative unless it shall have been

ratified as an amendment to the Constitution by the legislatures of

three-fourths of the several States within seven years from the date of

its submission to the States by the Congress.

The seven year ratification deadline is put into the body of the amendment to ensure that there will be a contemporaneous ratification requirement. Lawyers in the

Justice Department have concluded that putting the 7 year limit in the body of the

amendment, rather than the resolved clause is the only reliable way to ensure the

contemporaneous ratification.61

III. CONCLUSION

Doubtless there will be critics who come before the Congress and argue against

establishing the rights enumerated in H. J. Res. 91. They are on the extreme margins. Most of the opponents will say they support the rights, just not in the Constitution. Indeed the rights themselves are so modest and so reasonable they are

hard to argue with. Yet who among these critics would be heard to say, ‘‘I’m all for

defendants’ rights, but they don’t need to be in the Constitution.’’ The vast majority

of Americans, when judged by the actual votes at state elections for amendments,

are unequivocal in their support for constitutional rights for crime victims.62 As my

friend and colleague John Stein, Deputy Director of NOVA, has said often, they

should be ‘‘the birthright of every American.’’ And so they should—and to be meaningful and enforceable they must be in our one shared fundamental charter.

Mr. Chairman, Honorable Members, we urge you to join together, Republicans

and Democrats, Conservatives and Liberals, even as your national parties have

joined together, even as the former President and the sitting President have joined

together, as the former Attorney General and the present Attorney General, as the

Governors and the State Attorneys General have joined together, as Senators Kyl

and Feinstein and so many of their colleagues, as Prof Tribe and Prof. Cassell have

joined together, with the victims and the vanquished, all in a unanimous chorus

that crime victims deserve fundamental rights and that only an amendment to the

U. S. Constitution will guarantee them. Mr. Chairman, Honorable Members, do not

rest until this great national consensus is ratified. Seek out your leadership, push

for hearings and a mark-up, demand floor action, and send the resolution to the

Senate before the summer recess.

Every day that goes by injustice mounts upon injustice. The parents of a murdered child sit somewhere today on a hard bench in the hallway of an American

courthouse, while the defendant’s family is ushered to special seats inside. Today

a woman and a child are being denied the right to speak at the bail hearing of their

abuser. Somewhere today, in an American courtroom, a rape victim is shut out of

a plea bargain proceeding involving the charges against her rapist. Somewhere,

today, as we meet, a victim endures through an endless litany of continuances without voice in the matter of delay. Today another American victim is silenced at the

sentencing of her attacker, today, in our country, restitution is being forgotten, and

safety is being ignored because a parole board has not allowed the victim to speak.

Today, in courtrooms across our beloved nation, injustice mounts upon injustice.

And so we ask yet again, who will stand up now to speak against this injustice; who

will give voice to the victim?

A watchful nation awaits your answer. And hope abides.

APPENDIX A

WHY THE RIGHTS CAN ONLY BE SECURED IN THE UNITED STATES CONSTITUTION

Even the Amendment’s most ardent critics usually say they support most of the

rights in principle. If there is one thing certain in the victims’ rights debate, it is

31

that these words, ‘‘I’m all for victims’ rights but ...,’’ are heard repeatedly. But

while supporting the rights ‘‘in principle,’’ opponents in practice end up supporting,

if anything, mere statutory fixes that have proven inadequate to the task of vindicating the interests of victims. As Attorney General Reno testified before the House

Committee on the Judiciary, ‘‘. . . efforts to secure victims’ rights through means

other than a constitutional amendment have proved less than fully adequate.’’ The

best federal statutes have proven inadequate to the needs of even highly publicized

victim injustices, as Professor Cassell’s writing about the plight of the Oklahoma

City bombing victims has ably demonstrated.

In my state, statutes were inadequate to change the justice system. And now, despite its successes, we realize that our state constitutional amendment will also

prove inadequate to fully implement victims’ rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that

is needed to completely change old ways. In our state, as in others, the existing

rights too often ‘‘fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused’s rights—even when those rights are not genuinely threatened.’’ The experience in my state is, sadly, hardly unique. A recent study by the National

Institute of Justice found that ‘‘even in States where victims’ rights were protected

strongly by law, many victims were not notified about key hearings and proceedings,

many were not given the opportunity to be heard, and few received restitution.’’ The

victims most likely to be affected by the current haphazard implementation are, perhaps not surprisingly, racial minorities.

A group calling itself ‘‘Citizens for the Constitution‘‘ [hereinafter ‘‘Citizens’’] has

organized under the auspices of The Century Foundation’s Constitution Project.

Their purpose is to call for restraint in the consideration of Amendments to the U.

S. Constitution. In their recent pamphlet, ‘‘Great and Extraordinary Occasions’’: Developing Guidelines for Constitutional Change, the group propounds eight guidelines

which, they argue, should be satisfied before any constitutional amendment would

be justified. The ‘‘Citizens’’ raise some questions, in the commentary following their

guidelines, about the Crime Victims’ Rights Amendment. Applying these rigorous

Guidelines, however, despite the reservations of the ‘‘Citizens’’ themselves, demonstrates unequivocal support for case for the Amendment. I would like to direct

the Subcommittee’s attention to these eight guidelines, which the ‘‘citizens’’ offer in

the form of eight questions.

1. Does the proposed amendment address matters that are of more than

immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?

Yes.

Even as the Constitutional rights of persons accused or convicted of crimes address issues of ‘‘abiding importance,’’ so to do the proposed rights of crime victims.

The legitimate rights of the accused to notice, to the right to be present and the

right to be heard or remain silent, the right to a speedy and public trial, or any

of the other rights are surely no more enduring than the legitimate interests of the

victim to notice, presence, or the right to be heard, or any of the other rights proposed by the amendment. Surely no one could persuasively argue that the rights

of the innocent victim were less important or enduring.

Indeed, it is precisely because these values for victims are of enduring, or ‘‘abiding’’ importance that they must be protected against erosion by any branch or

majoritarian will. That they do not exist today broadly across the country is evidence that they are not adequately protected despite general acceptance of their

merit.

2. Does the proposed amendment make our system more politically responsive or protect individual rights?

Yes.

Clearly the proposed amendment is offered to ‘‘protect individual rights.’’ That is

its sole purpose.

The ‘‘Citizens’’ however, suggest that Congress should ask ‘‘whether crime victims

are a ’discreet and insular minority’ requiring constitutional protection against overreaching majorities or whether they can be protected through ordinary political

means. Congress should also ask whether it is appropriate to create rights for them

that are virtually immune from future revision. Let’s review these two questions.

‘‘[O]rdinary political means’’ have proven wholly inadequate to establish and protect the rights reviewed above. If this were not so they would exist and be respected

in every state and throughout the federal government. The evidence that they are

not is as compelling as it is overwhelming. Why is this so? Are crime victims unpopular? No, but as a class they are ignored; their interests subordinated to the interests of the defendant and the professionals in the system. And those interests are

32

entrenched as deeply as any in this society. Crime victims become ‘‘discreet and insular’’ by virtue of their transparency. If this were not so we would not be here for

our rights would be secure.

3. Are there significant practical or legal obstacles to the achievement of

the objectives of the proposed amendment by other means?

Yes.

The ‘‘Citizens’’ write, ’The proposed victims’ rights amendment raises troubling

questions under this Guideline. Witnesses testifying in Congress on behalf of the

amendment point to the success of state amendments as reason to enact a federal

counterpart. But the passage of the state amendments arguably cuts just the other

way; for the most part, states are capable of changing their own law of criminal procedure in order to accommodate crime victims, without the necessity of federal constitutional intervention. While state amendments cannot affect victims’ rights in

federal courts, Congress has considerable power to furnish such protections through

ordinary legislation. Indeed, it did so in March 1997 with Public Law 105–6 . . .

which allowed the victims of the Oklahoma City bombing to attend trial proceedings.’’

I was one of those witnesses the ‘‘Citizens’’ referred to. They should have read all

my testimony. Let me repeat again one of my statements, ‘‘In my state, the statutes

were inadequate to change the justice system. And now, despite its successes, we

realize that our state constitutional amendment will also prove inadequate to fully

implement victims’ rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that is needed to completely

change old ways. In our state, as in others, the existing rights too often ‘‘fail to provide meaningful protection whenever they come into conflict with bureaucratic

habit, traditional indifference, sheer inertia or the mere mention of an accused’s

rights—even when those rights are not genuinely threatened.’’ (Quoting Prof. Lawrence Tribe on the proposed amendment).

Moreover our courts have now made explicit in a series of cases (cited in Hearing

Report on S. J. Res. 6, April 16, 1997, Senate Judiciary Committee) what was always understood: namely that the U. S. Constitutional rights of the defendant will

always trump any right of the victim without any fair attempt to balance the rights

of both.

On the Oklahoma City bombing point that the ‘‘Citizens’’ make they should have

read the whole testimony of Prof. Paul Cassell who convincingly demonstrates how

the statute cited by the citizens was inadequate to the task of fully protecting even

these high profile and compelling victims. The law didn’t work for them. How much

less must it work for victims who don’t have the clout to get an act of Congress

passed? That ‘‘other means,’’ to use the ‘‘Citizens’’ phrase, have simply proven inadequate is concurred in by a broad consensus that includes the Justice Department,

constitutional scholars of the highest regard from both ends of the political spectrum, the President, the Vice President, the platforms of both major political parties, and bi-partisan coalition of Members and Senators, and crime victim advocates

throughout our country.

4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves in tact?

Yes.

The proposed rights are perfectly consistent with the constitutional doctrine that

fundamental rights for citizens in our justice system need the protection of our fundamental law.

5. Does the proposed amendment embody enforceable, and not purely aspirational, standards?

Yes.

The text of the proposed amendment grants to crime victims constitutional standing to stand before any judge in the country and seek orders protected the established rights. This is the essence of enforceability.

6. Have the proponents of the proposed amendment attempted to think

through and articulate the consequences of their proposal, including the

ways in which the amendment would interact with other constitutional

provisions and principles?

Yes.

More than simply ‘‘think through’’ the proposal, proponents of the CVRA have

taken roughly two decades of experience with state statutes and constitutional provisions to develop a very refined understanding of the limits of state and federal

law, the need for a federal amendment, and how that amendment would work in

actual practice and be interpreted. No other constitutional amendment has had this

degree of vetting.

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7. Has there been full and fair debate on the merits of the proposed

amendment?

Yes.

The Congress has had the amendment under consideration since 1996. There have

been major hearings in both bodies on multiple occasions. The record of debate and

discussion throughout the country is extensive.

8. Has congress provided for a non-extendable deadline for ratification by the

states so as to ensure that there is a contemporaneous consensus by Congress and

the states that the proposed amendment is desirable?

Yes.

See the ‘‘Resolved’’ Clause which introduces H. J. Res. 44. (Note: The 7 year limit

is now in section 5 of H. J. res. 91).

The proposed amendment passes the test of the ‘‘Citizens’’ Guidelines. More importantly, it is fully faithful to the spirit and design of James Madison.

The ‘‘Citizens’’’ pamphlet, Great and Extraordinary Occasions, takes its name

from a line in The Federalist No. 49, authored by James Madison. There Madison

rightly argued for restraint in the use of the amendment process. But of course he

rose above rightful restraint to propose the first twelve amendments.

When James Madison took to the floor and proposed the Bill of Rights during the

first session of the First Congress, on June 8, 1789, ‘‘his primary objective was to

keep the Constitution intact, to save it from the radical amendments others had proposed....’’ In doing so he acknowledged that many Americans did not yet support

the Constitution.

‘‘Prudence dictates that advocates of the Constitution take steps now to make it

as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them.’’

The fact is, Madison said, there is still ‘‘a great number’’ of the American people

who are dissatisfied and insecure under the new Constitution. So, ‘‘if there are

amendments desired of such a nature as will not injure the constitution, and they

can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens,’’

why not, in the spirit of ‘‘deference and concession,’’ adopt such amendments?

Madison adopted this tone of ‘‘deference and concession’’ because he realized that

the Constitution must be the ‘‘will of all of us, not just a majority of us.’’ By adopting a bill of rights, Madison thought, the Constitution would live up to this purpose.

He also recognized how the Constitution was the only document which could likely

command this kind of influence over the culture of the country.

Our goals are perfectly consistent with the goals that animated James Madison.

There is substantial evidence in the land that the Constitution today does not serve

the interests of the ‘‘whole people’’ in matters relating to criminal justice. And the

way to restore balance to the system, in ways that become part of our culture, is

to amend our fundamental law.

‘‘[The Bill of Rights will] have a tendency to impress some degree of respect for

[the rights], to establish the public opinion in their favor, and rouse the attention

of the whole community . . . [they] acquire, by degrees, the character of fundamental maxims . . . as they become incorporated with the national sentiment....’’

Critics of Madison’s proposed amendments claimed they were unnecessary, especially so in the United States, because states had bills of rights. Madison responded

with the observation that ‘‘not all states have bills of rights, and some of those that

do have inadequate and even ’absolutely improper’ ones.’’ Our experience in the victims’ rights movement is no different. Not all states have constitutional rights, nor

even adequate statutory rights. There are 32 state constitutional amendments and

they are of varying degrees of value.

Harvard Professor Lawrence Tribe has observed this failure: ‘‘. . . there appears

to be a considerable body of evidence showing that, even where statutory or regulatory or judge-made rules exist to protect the participatory rights of victims, such

rights often tend to be honored in the breach. . . ..’’ As a consequence he has concluded that crime victims’ rights ‘‘are the very kinds of rights with which our Constitution is typically concerned.’’

After years of struggle, we now know that the only way to make respect for the

rights of crime victims ‘‘incorporated with the national sentiment,’’ is to make them

a part of ‘‘the sovereign instrument of the whole people,’’ the Constitution. Just as

James Madison would have done it.

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APPENDIX B

RESPONSES TO POINTS MADE IN OPPOSITION

‘‘I’m all for victims’ rights, but the proposed amendment is ‘an assault on

federalism as it has been defined for more than two centuries.’ ’’

The full quote from Prof. Raskin continues, ‘‘No aspect of public policy, with the

possible exception of education, has been more jealously guarded by the states and

localities than the investigation and prosecution of common law crimes and the

structuring of the accompanying criminal justice process.’’ The federalism concern

also has been expressed by others.

The criminal justice system which Prof. Raskin describes does not exist. In many

important matters the Constitution of the United States has come to dictate to the

states the ‘‘structuring’’ of their ‘‘criminal justice process.’’ Certainly Prof. Raskin

knows this and indeed supports it. Through the Fourteenth Amendment, the courts

have structured the criminal justice process in each state to be respectful and protective of the rights established in the Bill of Rights for persons accused and convicted of crimes. The incorporation of these rights through the Fourteenth Amendment, and their applicability to the states, has been accepted within our federal system in order to secure a national threshold of fair treatment. Why should not the

same deference be given to the rights of crime victims as is given to the rights of

accused or convicted offenders?

The authors and supporters of the Crime Victims’ Rights Amendment are sympathetic to the demands of federalism and deeply respect the role of the states. The

proposal does not infringe these important values. Nothing in the proposed amendment denies to the states their rightful authority to define and implement the rights

as they see fit, subject only to the unifying review of the U. S. Supreme Court.

Moreover, the power of the Congress to enforce the provisions of the amendment are

limited by the understanding given to the word ‘‘enforce’’ in recent Supreme Court

decisions, e.g. City of Boerne. This jurisprudence is important to our understanding

of the role of the states within their respective jurisdictions. For a fuller discussion

of this point see the Senate Judiciary Report on S. J. Res. 44

As long as the Constitution establishes a floor of rights for defendants it will be

proper for the same Constitution to establish a floor of rights for victims. As Attorney General Reno earlier testified in the House, ‘‘First, unless the Constitution is

amended to ensure basic rights to crime victims, we will never correct the existing

imbalance in this country between defendants’ constitutional rights and the haphazard patchwork of victims’ rights.’’

‘‘I’m all for victims’ rights, but the costs of this amendment will be staggering and local criminal justice systems will be crippled as a consequence.’’

This criticism is often made by those who have no direct knowledge of the costs

of providing rights for crime victims and who have not thought through clearly

enough the actual fiscal impact of the proposed amendment. Let them come to Arizona. Our state constitutional amendment has been in effect since November 1990

and the costs have been minimal and manageable. Consider the proposed rights

themselves. H. J. Res 64 proposes that in cases of violent crimes each victim would

have the rights to:

• reasonable notice of . . . all public proceedings . . . • reasonable notice of a release or escape from custody

Some costs are associated with these rights, but how and where they fall will be

dependant on each state’s decision. In some states the duty to provide notice of proceedings could fall on the prosecutor, as in my state, while in others the duty may

fall to the courts. The costs will vary with the kind of notice provided. In some

places victims may receive notice by mail, while in others notice may be provided

by the victim calling a central phone number. In either case the costs are not staggering.

More importantly, it is right that victims be given these notices. No similar right

of a defendant would be denied on the basis of cost. None should be for crime victims.

• be heard . . . at all public release, plea, sentencing, reprieve, or pardon proceedings;

No costs are associated with allowing the victim the right to speak at proceedings

that are already held. There are those who argue that this right to be heard regarding pleas will result in far fewer pleas and far more trials. There is no evidence of

this happening anywhere. In Arizona the trial rate has remained unaffected.

• Adjudicative decisions that duly consider the victim’s interest in avoiding unreasonable delay;

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No costs are associated with requiring the court to take these matters into consideration. To the extent it helps avoid unreasonable delays in the trial it may save

costs. • Just and timely claims to restitution;

No significant costs are associated with the requirement to order restitution. Victims typically will submit proof of economic losses to the court and restitution orders

are simply made a part of sentencing. If amounts are contested the issues are resolved during sentencing proceedings that are already held. • safety

Requiring courts or parole authorities to consider the safety of the victim will not

impose significant costs. It may result in more carefully crafted release conditions

for the accused or convicted offender, but so be it. It may save lives.

The cost argument is a red-herring. Costs are modest, and moreover, appropriate

when viewed in light of the important interests at stake. Not one of these critics

would dare suggest a cost litmus test for defendants’ rights. None should be imposed

on crime victims. Let the critics come to Arizona. ‘‘I’m all for victims’ rights, but this proposal will undermine the rights of

defendants.’’ Nothing in H. J. Res. 44 will limit the fundamental rights of defendants.

Giving to the victim the right to certain notices infringes no right of a defendant.

Allowing the victim the right to be present does not ‘‘substantially undermine’’ any

constitutional right of a defendant. Allowing the victim the right to speak at release,

plea, or sentencing proceedings does not deny a constitutional right to a defendant,

but it does allow the court to make more informed and just decisions. Defendants

do not have a constitutional right to refuse or avoid restitution for the economic

losses they cause to their victims. Defendants have a right to effective counsel, but

they have no right to unreasonably delay proceedings and requiring the court to

consider the interests of the victim in a trial free from unreasonable delay does not

deny any constitutional right to a defendant. Defendants have no right to prohibit

the court or parole authority from considering the safety of the victim when making

release decisions and requiring the safety of the victim to be considered does not

infringe any right of the defendant.

When considered in the light of reason, and not emotion, vague assertions that ‘‘fundamental constitutional rights will be undermined,’’ have little value other than

to inflame the debate; the amendment is not an assault on the fundamental rights

of the defendant. In the justice system throughout the country, rights for those involved are not ‘‘a zero-sum game.’’ Rights of the nature proposed here do not subtract from those rights already established, they merely add to the body of rights

that we all enjoy as Americans.

Professor Tribe concurs in this analysis when he writes, ‘‘no actual constitutional

rights of the accused or of anyone else would be violated by respecting the rights

of victims in the manner requested.’’

Crime victims seek balance—that victims’ rights will not automatically be

trumped every time a defendant offers a vague and undefined ‘‘due process’’ objection to the victims’ participatory and substantive rights. H. J. Res. 44 will achieve

this fairness and balance.

‘‘I’m all for victims’ rights, but giving the victim a right to be present in

the courtroom will lead to perjured testimony by the victim.’’

The imbalance of the present system is evident in this criticism. The argument

goes that victims must be excluded during trial, and perhaps at some pre-trial

stages, just like other witnesses, so they will not hear other testimony and conform

their own to it. Defendants, of course, may be witnesses in their own trials, but they

have a right to be present which overrides the rule of exclusion. The same rules

should apply to the crime victim. Typically those rules now make exception so that

the prosecution is allowed to keep even the principal investigator in the trial without exclusion, but no exception is made for the victim.

And what of the fear of perjury? Consider the civil justice system. If a lawsuit

arises from a drunk driving crash, both the plaintiff (the victim of the drunk driver)

and the defendant (the drunk driver) are witnesses. Yet both have an absolute right,

as parties in the case, to remain in the courtroom throughout the trial. Do we value

truth any less in civil cases? Of course not. But we recognize important societal and

individual interests in the need to participate in the process of justice.

This need is also present in criminal cases involving victims. How can we justify

saying to the parents of a murdered child that they may not enter the courtroom

because the defense attorney has listed them as witnesses. This was a routine practice in my state, before our constitutional amendment. And today, it still occurs

throughout the country. How can we say to the woman raped or beaten that she

has no interest sufficient to allow her the same rights to presence as the defendant?

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Closing the doors of our courthouses to America’s crime victims is one of the shames

of justice today and it must be stopped.

Victims in my state have had this unqualified right to be present since November

1990. Based on our actual experience the fears of the critics are unfounded.

‘‘I’m all for victims’ rights, but the right to have the victim’s interest in

a trial free from unreasonable delay will force both prosecutors and defendants to trial too early.’’

Nothing in the amendment will cause this result. The key phrase is ‘‘unreasonable

delay.’’ Giving the state an adequate time to prepare its case is not ‘‘unreasonable

delay.’’ The state is already under time deadlines by virtue of the defendant having

a right to a speedy trial and the various acts which implement that right.

The defendant has a constitutional right to effective counsel and to be effective

the defendant’s counsel needs an adequate time to prepare, to review the evidence,

the case file, and interview certain witnesses. Giving the defendant’s counsel an

adequate time to prepare is not an ‘‘unreasonable’’ delay.

The Arizona Constitution has given crime victims a right to both ‘‘a speedy trial

or disposition’’ and a ‘‘prompt and final conclusion of the case after the conviction

and sentence.’’ It has been the law for the last nine years and I am aware of no

case in which either the state or the defendant has been forced to trial before they

were ready. The fears of the critics are unfounded.

What the amendment in Arizona has done, albeit inadequately, and what the federal amendment will do, is allow, in the typical case, the court to have a constitutional context in which to balance the legitimate rights of the defendant to effective

counsel and due process, with the rights of the victim to some reasonable finality.

Defendants often seek continuances, and then seek to exclude the time of those

continuances from the speedy trial rules that would otherwise control the processing

of the case. Because these speedy trial rules run to the benefit of the accused, when

the accused asks that they be waived, courts are often loath to deny the requests.

This is especially true when no countervailing interest in reasonable finality is preserved and protected.

And yet, unreasonable delay is not a mere scheduling problem. It is an all too

often painful agony for the victim, who must continue to re-live the crime and confront the defendant. Allowing a reasonable balance between both of the legitimate

interests of the defendant and the victim to be considered by the court is the goal

of the amendment.

Nothing in the proposed amendment gives the crime victim the power to force any

case to trial before it or the defense is ready.

‘‘I’m all for victims’ rights, but the right of the victim to have safety considered when making release decisions will result in a constitutional right

to imprisonment even after a sentence has been served.’’

As certain objecting law professors phrased this objection, ‘‘The proposed Amendment . . . would . . . allow a victim of a crime to argue that it is unconstitutional

to release a person from prison even though the sentence had been completely

served.’’

An examination of the text of the proposed amendment quickly disposes this criticism. The amendment provides that ‘‘[e]ach . . . victim shall have the rights to . . .

consideration for the safety of the victim in determining any conditional release

from custody....’’ When a sentence ‘‘has been completely served,’’ as the law professors posit, there is no ‘‘determining’’ to be done in connection with the release.

The release happens by operation of law and the expiration of the original sentence.

No discretionary decision is permitted and hence no ‘‘consideration’’ would be given

to the safety of the victim on the matter of the release itself. There may be discretion with respect to the conditions of a release and, of course, then the safety of the

victim should always be considered. Sadly, it rarely is. The law professors have simply failed to understand the proposal.

Others have argued that the same safety consideration should not be given to pretrial release decisions. For most of our recent history the only relevant standard for

a court’s pre-trial release decision was whether or not the defendant would appear

when required. Safety of the victim was not a factor, indeed not allowed to be considered. Recent changes in some states have allowed dangerousness to the victim

or the community to be considered when making pre-trial release decisions. However, even these changes have proven inadequate to require consideration for the

safety of the victim when fashioning conditions of pre-trial release because they are

couched in terms of the defendants rights and not the victims. The time for this imbalance to end is now.

‘‘I’m all for victims’ rights, but the terms of this amendment are too vague

to have any meaning,’’ or in the alternative, ‘‘I’m all for victims’ rights, but

37

this amendment is so specific it reads more like a statute than an amendment.’’

Both criticisms, each contradicting the other, have been made. Neither is true.

The amendment proposed is specific enough to make real change in the justice system and is still written to properly reflect the language and patterns of the Constitution.

If all the rights of the defendant were incorporated into one amendment, it would

be longer and one could argue, both more specific in some cases and much more general in others, than this proposal. The rights there are as long and as specific as

they need to be, as are these.

In this connection, some also argue that the proposed amendment is fatally flawed

because it does not specifically define who the ‘‘victim’’ is. For some purposes the

definition of the victim is self-evident and even without a statutory definition the

court could determine who the victim was by resort to the elements of the charged

offense. My testimony before the Senate Judiciary Committee in 1996 addresses this

point in more detail.

‘‘I’m all for victims’ rights, but this amendment reverses the presumption

of innocence; a person is not a victim until there is a conviction.’’

From NOW’s Legal Defense and Education Fund comes: ‘‘A victims’ rights amendment would undermine the presumption of innocence by naming and protecting the

victim before a crime is proven.’’

That it was impossible for the Fund to complete that sentence without again referring to the person against whom the crime has been committed as ‘‘the victim’’

is evidence of the rhetorical problem here. But it is just that, merely a rhetorical

problem having nothing to do with the presumption of innocence.

If a defendant’s liberty can be taken away before trial and conviction without undermining the presumption of innocence, surely our justice system can provide the

simple rights for crime victims enumerated in this proposal. The proposal has nothing to do with the burden of proof the government bears before a jury may convict

an accused of an offense. That is what the presumption of innocence is all about.

Nothing in this proposal reverses or undermines it in any way.

Mr. CHABOT. Thank you very much. At this time the Committee

will have a short recess so we can go vote. We have three votes so

we’re probably looking at approximately a half-hour before we are

back after the three votes. But—so we’re in a short recess.

[Recess.]

Mr. CHABOT. The Committee will be back in session. Our second

witness this afternoon will be Roberta Roper. Are the mikes on?

Thank you. We’re back in session and our next witness, Roberta

Roper, will now give her testimony. Thank you.

STATEMENT OF ROBERTA ROPER, EXECUTIVE DIRECTOR,

STEPHANIE ROPER COMMITTEE AND FOUNDATION, INC.

Ms. ROPER. Good afternoon, Mr. Chairman, and Members of the

Subommittee. I proudly testify today on behalf of NVCAN and the

Stephanie Roper Committee and Foundation, and commend you for

introducing the victims’ rights amendment this year. It is an honor

for me to speak today for everyday Americans who place their trust

in our system and their dependence on Government to do the right

thing for justice. Most importantly, I speak for those whose voices

can no longer be heard, our sons, daughters, parents, spouses,

brothers, sisters, friends.

On September 11th, the terrorist attack on our Nation awakened

the consciousness of Americans to the reality of crime and random

violence. Americans began to learn firsthand what every crime victim knows, that chosen acts of criminal violence turn innocent victims’ lives upside down and change them forever and/or tragically

end them. I ask you to remember those important lessons and that

any one of us can become a victim of crime. I ask you how you

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would wish to be treated if you or a loved one became a victim of

criminal violence.

Providing victims with rights in our system is not a complicated

legal issue so I am going to place my focus where I believe it correctly belongs: on the human rights of American citizens who believe that they deserve basic rights of fundamental fairness under

the Constitution of our land. These are rights that every accused

person or convicted person deserves and enjoys, yet everyday

Americans are appalled and disbelieving when they discover that

unlike criminal defendants they have no similar rights. And that’s

what this amendment is about, guaranteeing equal justice for all

of us under the law of all of us, the Constitution of the United

States.

President Bush in announcing his support has mentioned that

the protection of victims’ rights is one of those rare instances when

amending the Constitution is the right thing to do. The framers of

our Constitution understood that the sacred document they were

creating would need to change as the needs of society required

change. They were creating a more perfect union; not a perfect one.

That wisdom allowed our Constitution to abolish slavery and to

give voting rights to women. Those human rights could not be sufficiently protected by State or Federal laws.

Likewise, the amendment before you is necessary in order to give

protection and balanced consideration to the rights of victims. More

than two decades of efforts in securing State and Federal laws and

State constitutions have been evidence of their failure to provide

victims with safe rights. It has been mentioned that Professor

Tribe has led this effort and agreed that the language of this

amendment meets the criteria of changing an amendment.

The rights in question, rights of victims not to be victimized yet

again and again through the process by which Government bodies

and officials prosecute, punish, and/or release the accused or convicted defendant are indisputable basic human rights. The whole

history of our country has taught us that these rights must share

the protection of our fundamental law, our Constitution.

You’ve heard how carefully crafted this language has been drafted so that the rights of the accused will not be endangered but will

enable victims and survivors to have minimum rights not to be excluded from criminal proceedings that are the most important

events of their lives. It will establish a basic national standard that

will enable individual States to build upon that foundation.

I speak to this amendment from personal experience, but also

from 20 years as an advocate and a service provider to thousands

of crime victims in my home State of Maryland. Like many advocates, the catalyst for advocacy and service was my family’s experience with the criminal justice system when our oldest child, our beloved daughter Stephanie, was kidnapped, brutally raped, tortured

and murdered in 1982 by two strangers who came upon her disabled car on a country road.

Like countless other victims and survivors of that era, we discovered that unlike our daughter’s killers, we had no rights to be informed, no rights to attend the trial, and no rights to be heard before sentencing. Like countless other families then and now, we

struggled not only with the devastating effects of the crime comVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
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mitted against our loved one, but with the consequences that were

in many ways worse, being shut out of a criminal justice system

we believed in and depended upon.

In trying to rebuild our broken lives, the greatest challenge was

trying to give hope to four surviving children; children we had

taught to respect, to trust, and to believe in the system that had

now failed us. That challenge is forever etched in my mind by the

memory of the day one of our sons came home from school explaining that he could no longer pledge allegiance to the flag with his

classmates because liberty and justice for all didn’t include us.

You may conclude that this happened 20 years ago and surely

would not happen today. And yes, it is true, enormous progress has

been made in the passage of good laws both on the State and Federal levels, and constitutional amendments passed in 33 States.

But the sad reality is those rights continue to be ignored and denied. None of these State or Federal laws are able to match the

constitutionally protected rights of offenders. The result is that victims often describe themselves as second-class citizens or stepchildren in our Nation’s system of justice.

Despite the passage of more than 60 laws and a State constitutional amendment in Maryland, many victims conclude that the

criminal justice system is more criminal than just. This amendment will ensure that both victims’ and defendants’ rights are

given fullest effect. Neither one will be superior, but both will be

given equal consideration.

I’d like to tell you about some of those victims in Maryland

whose rights were violated. One could not be here today but her

name is Dawn Sawyer Walls. And I should point out her parents

have dedicated their lives to serving communities. Dawn’s father

was a police officer for 22 years. Her mother is the executive director of Concerns of Police Survivors. Well, Dawn was 6 months pregnant and the manager of a convenience when a robber with a

sawed-off shotgun ordered her to lie face down as he emptied the

store’s cash drawer.

In violation of Maryland laws, Dawn was not notified when a

plea was struck. As a result, she was not present in court, she was

not able to give a victim impact statement, and was not able to request restitution from the offender. This disposition was characterized as a good outcome. And besides, she was told, you didn’t suffer

physical injuries. Well, the trauma of this event had a severe financial impact for her young family because she was unable to return

to work.

Other victims whose rights were denied are here with me today.

Sherri Rippeon and John Dobbin also sit behind me. Two years ago

their infant daughter Victoria died of blunt force trauma inflicted

by the boyfriend of their babysitter. Seeking to ensure compliance

with Maryland law regarding their rights to attend the public trial,

Sherri and John filed a crime victim notification request form. Nevertheless, the trial court excluded them from the courtroom, and

even after they filed a pro se demand for rights form the judge continued to deprive them from observing the trial.

Mr. NADLER. Were they witnesses?

Ms. ROPER. They had been original witnesses to——

Mr. NADLER. But they were going to testify in the trial?

40

Ms. ROPER. They had testified. Their testimony had been concluded.

Teresa Baker is also here. And when her only son was murdered

she too fulfilled the victim’s requirement to request notification regarding the right to be informed. She was in court when her son’s

killer pleaded guilty to second degree murder and was sentenced

to 30 years. However, no one explained to Teresa that under the

terms of the ABA plea the convicted offender would be released in

less than 3 years. Consequently, she learned about his release by

chance, and that painful discovery led Teresa to ask, why didn’t tell

me the truth?

Cecelia and Dexter Sellman had a son who was an honor roll student when he was shot down and killed by two young men. They

relied on the criminal justice system to bring some justice to their

family through restitution from the offender. Not for revenge, not

to replace their loss, but for the pocket expenses they sustained,

and to hold the offenders accountable for their actions. The State

flatly told Cecelia that he would not request restitution, which was

a violation of a right under Maryland law, not only for the victim

but an obligation for the prosecuting attorney.

Like the other victims here today, the Sellmans believed that the

system their family depended upon had failed them.

Mr. CHABOT. Ms. Roper, the time has expired. Are there any

other victims that are here that you wanted to refer to in your testimony?

Ms. ROPER. I would just like to say that—no, there are not. I

would just like to conclude that the whole history of our Nation has

taught us that unless these rights that we’re asking for are enshrined in our Constitution there will always be a struggle. And

while it’s very laudable to talk about funding, and funding programs that assist victims, and funding prosecutors, it is not an either/or situation. We’re talking about how we treat people.

And I ask all of you to look at the folks from Maryland that I

brought here today. They may not be your constituents, but their

counterparts exist in each of your States. Crime has broken the

hearts of those Americans. But the criminal justice has made them

repeatedly victims again and again. And they want to be survivors.

And they ask you to make sure that the Constitution that protects

the offender also protects them.

[The prepared statement of Ms. Roper follows:]

PREPARED STATEMENT OF ROBERTA ROPER

Chairman Sensenbrenner and members of the House Judiciary Subcommittee on

the Constitution: I am Roberta Roper, Co-Chairperson of the National Victims’ Constitutional Amendment Network and Executive Director of the Stephanie Roper

Committee and Foundation, Inc. NVCAN is the national coalition of victim advocates, legal scholars and victim service organizations, and the Stephanie Roper

Committee and Foundation, Inc., is a Maryland victim advocacy and service nonprofit organization bearing our slain daughter’s name. Both organizations proudly

express their strong support for the constitutional amendment for crime victims’

rights as introduced in the House By Representative Steve Chabot.

It is with honor that I come before you today to speak for everyday Americans

who place their trust in our system and their dependence on government to do the

right thing for justice. Most importantly, I speak for those whose voices can no

longer be heard . . . our sons, and daughters, spouses, parents, brothers and sister,

friends. On September 11th, the terrorists’ attack awakened the consciousness of

America to the reality of random violence. Americans began to learn what every

41

crime victim knows . . . that by chosen acts of criminal violence, innocent lives are

turned upside down and forever changed or tragically ended. I ask you to remember

those lessons and that any one of us can become a victim of crime. How would you

wish to treated by our criminal justice system?

Providing crime victims with protected rights is not a complicated legal issue.

Consequently, my testimony will place the focus where it correctly belongs . . . on

the human rights of American citizens who believe that they deserve basic rights

to fundamental fairness under the Constitution of the United States. These are

rights that every person accused of, or convicted of a crime deserves and enjoys. Yet

everyday Americans are appalled and disbelieving to learn that, unlike criminal defendants, they have no similar rights. That’s what this amendment is about . . .

guaranteeing equal justice for all of us under the law of all of us, the U. S. Constitution.

In announcing his endorsement of the amendment before you, President Bush

said that ‘‘The protection of victims’ rights is one of those rare instances when

amending the Constitution is the right thing to do.’’ The framers of our Constitution

understood that the sacred document they were creating would need to change as

the needs of society required change. They were creating a ‘‘more perfect union,’’ not

a perfect one. That wisdom allowed our Constitution to abolish slavery and to give

voting rights to women. Those human rights could not be sufficiently protected by

state or federal laws. Likewise, this amendment is necessary in order to give protection and balanced consideration to the rights of victims. More than two decades of

efforts in securing state and federal laws are evidence of their failure to provide victims’ rights. Lawrence Tribe, Tyler Professor of Constitutional Law at Harvard Law

School points out that a constitutional amendment is appropriate only when other

means are not attainable such as a needed recognition of a basic human right. He

believes that the language of this amendment meets that criteria. ‘‘The rights in

question . . . rights of crime victims not to be victimized yet again through the process by which government bodies and officials prosecute, punish, and/or release the

accused or convicted offender . . . are indisputable basic human rights.’’ The whole history of our country has taught us that basic human rights must be

share the protection of our nation’s fundament law . . . our Constitution. The language of this amendment has been carefully crafted to preserve the protections of

accused or convicted offenders, while enabling victims and survivors of criminal violence to have minimal rights not to be excluded from criminal proceedings that are

the most important events in their lives! It will establish a basic national standard

which will enable individual states to build upon that foundation.

(These rights include timely and reasonable notice of any public proceeding involving the crime and of any release or escape of the accused; to not being excluded

from such public proceedings and reasonably to be heard at public release, plea, sentencing, reprieve and pardon proceedings; and to adjudicative decisions that consider the victim’s safety, interest in avoiding reasonable delay, and just and timely

claims for restitution from the offender.)

I speak to the need for this amendment not only from personal experience, but

after twenty years of advocacy and service to thousands of crime victims in my

home state of Maryland. Like many advocates, the catalyst for advocacy and service

was my family’s experience with the criminal justice system when our oldest child,

our beloved daughter, Stephanie, was kidnaped, brutally raped, tortured and murdered in 1982 by two strangers who came upon her disabled car on a country road.

Like countless victims and survivors of that era, we discovered that unlike our

daughter’s killers, we had no rights to be informed, no rights to attend the trial and

no rights to be heard before sentencing. Like countless other families, then and now,

we struggled not only with the devastating effects of the crimes committed against

our loved ones, but with consequences that were in many ways worse . . . being

shut out of a criminal justice system we believed in and depended upon. In trying

to rebuild our broken lives, the greatest challenge was trying to give hope to four

surviving children . . . children whom we had taught to respect and trust the criminal justice system that had now failed us! That challenge is forever etched in my

mind by the memory of the day one of our sons came home from school, explaining

that he could no longer pledge allegiance to the flag with his classmates because

‘‘liberty and justice for all’’ didn’t include us.

You may conclude that because this happened twenty years ago, this surely would

not happen today. And while great progress has been made in the passage of good

laws, both on the state and federal level and constitutional amendments passed in

33 states, the sad reality is that victims’ rights continue to be denied. None of these

state or federal laws are able to match the constitutionally protected rights of offenders. The result is that crime victims remain second class citizens in our nation’s

system of justice. Despite the passage of more than sixty victims’ rights laws and

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a state constitutional amendment in Maryland, many victims conclude that our

criminal justice system is more criminal than just when it comes to ensuring their

rights. This Constitutional Amendment will ensure that both victims’ and defendants’ rights are given fullest effect. Neither one will be superior, but both will be

given equal consideration.

Some of those victims and survivors are here today. One is Dawn Sawyer Walls,

whose parents, I might add have dedicated their lives to serving communities;

Dawn’s father was a police officer for 22 years, and her mother is the Executive Director of COPS. Dawn was 6 months pregnant and the manager of a convenience

store when a robber with a sawed off shotgun ordered her to lie face down as he

emptied the store’s cash drawer. In violation of Maryland laws, Dawn was not notified when a plea agreement was struck. As a result, she was not present in court

to give a victim impact statement and was not able to request restitution from the

offender. This disposition was characterized as a ‘‘good outcome’’. . . and besides,

she was told, ‘‘you didn’t suffer physical injuries.@ The trauma of this event had

a severe financial impact for her young family because she was unable to return

to work.

Sherri Rippeon and John Dobbin also sit behind me. Two years ago, their infant

daughter, Victoria, died of blunt force trauma inflicted by their babysitter’s boyfriend. Seeking to ensure compliance with Maryland law regarding their rights to

attend the public trial, Sherri and John filed a Crime Victim Notification Request

Form. Nevertheless, the trial court excluded them from the courtroom, and even

after they filed a pro se Demand for Rights Form, the judge continued to deprive

them from observing the trial.

When Teresa Baker’s only son was murdered, she too, fulfilled the victim’s requirement to request notification regarding the right to be informed. She was in

court when her son’s killer pleaded guilty to 2nd degree murder and was sentenced

to thirty years; however, no one explained to Teresa that under the terms of the

ABA plea, the convicted offender would be released in less than three years! Consequently, she learned about his release by chance and that painful discovery led

Teresa to ask ‘‘why didn’t someone tell me the truth?@

Cecelia and Dexter Sellman’s son was an honor roll high school student when he

was shot down and killed by two young men. They relied on the criminal justice

system to bring some justice to their family through restitution from the offender

. . . not for revenge, not to replace their loss, but for their out of pocket expenses

and to hold the offenders accountable for their actions. The State flatly told Cecelia

that they would not request restitution . . . a violation of a right under Maryland

law not only for the victim, but an obligation of the prosecuting attorney. Like the

other victims here today, the Sellmans believe that the system their family depended upon failed them.

It is important to stress that this proposed constitutional amendment has little

to do with the punishment of offenders, but everything to do with how our system

of justice treats citizens who become innocent victims of crime. Certainly, law abiding citizens expect that those who violate the law will be held accountable for their

actions; however, treating crime victims with respect and not excluding them from

proceedings surrounding the crimes against them is separate and distinct. While

one crime victim may choose not to be informed, present and heard at proceedings,

it should not be the basis for denying rights to those victims who chose those rights.

And finally, I ask that you listen to the law-abiding citizens of our nation. I am

confident that your constituents will tell you that it is time to approve this victims’

rights amendment. State constitutional amendments have won overwhelming approval in 33 states; in 1994, the Maryland amendment had voter support of 92.5%!

Never before has there been a proposed law, bi-partisan in support, that could make

such a significant difference in the lives of so many Americans every year. We ask

you to remember that the Constitution belongs to the people . . . let the Constitution protect all the people of this nation with equal justice.

Mr. CHABOT. Thank you very much. And I want to also thank the

victims and the family members for coming here today. We appreciate that very much.

Our next witness will be Mr. Orenstein.

STATEMENT OF JAMES ORENSTEIN, PARTNER, BAKER &

HOSTETLER, NEW YORK CITY

Mr. ORENSTEIN. Thank you, Mr. Chairman. Thank you for inviting me to appear before you today.

43

Mr. CHABOT. Could you pull that mike a little closer?

Mr. ORENSTEIN. Sure. Is that better?

Mr. CHABOT. Yeah.

Mr. ORENSTEIN. As a Federal prosecutor for most of my career

I’ve been privileged to work closely with a number of crime victims.

I’ve also been privileged to work with talented people on all sides

of this issue, including Mr. Twist, to make sure that any victims’ rights amendment to the Constitution would provide real relief to

victims of crimes without jeopardizing law enforcement. I think it

may be possible to do both, but I also believe that there are better

solutions that do not carry the severe risks to law enforcement inherent in using the Constitution to address the problem. In particular, I believe the current bill will in some cases sacrifice the effective prosecution of violent offenders to achieve marginal protection for their victims.

In the last 20 years, Congress has enacted a variety of statutes

that ensure crime victims’ rights in the criminal justice system.

Similarly, every single State has enacted its own protections for

crime victims, although they have not uniformly adopted the full

panoply of protections that this body has provided. As a result, the

principal benefit to be gained by this amendment would be the uniformity gained by empowering Congress to override State laws and

bring local practices into line. The same result, however, could likely be achieved through the use of Federal spending power to give

States proper incentives to meet uniform national standards.

But unlike relying on spending-based legislation, using the Constitution to achieve such uniformity carries the risk of unforeseen

and irremediable problems for law enforcement. I want to stress

that in my view the potential risks to effective law enforcement are

not the result of simply representing the legal rights of victims.

Prosecution efforts are generally more effective if crime victims are

regularly consulted and kept involved during the course of a case.

There are, however, a number of cases, typically in the organized

crime context and in prison settings, where the victim of one crime

is also the offender in another. In such cases this amendment could

harm law enforcement efforts. For example, when a Mob soldier decides to cooperate with the Government, premature disclosure of

his cooperation can lead to his murder and the compromise of the

investigation. Under this amendment such disclosures could easily

come from crime victims who are more sympathetic to the criminals than to the Government.

When John Gotti’s underboss, Salvatore Gravano, decided to cooperate, and I was one of the prosecutors in that case, he initially

remained in a detention facility with Gotti and other criminals for

several weeks, and he was at grave risk if his cooperation became

known. Luckily, that did not happen.

But the victims who would have been covered by this amendment, had it been in effect at the time, relatives of gangsters whom

Gravano had murdered on Gotti’s orders would almost certainly

have notified Gotti if they could have done so. In fact, shortly after

Gravano’s cooperation became known, some of those relatives filed

a civil lawsuit for damages against Gravano, but not against Gotti,

and sought to use the discovery process to dig up impeaching information about Gravano. That their goal was to help Gotti escape

44

conviction was demonstrated by the fact that when Gravano

impleaded Gotti into the lawsuit, the issue disappeared.

In the prison context, incarcerated offenders who assault one another may have little interest in working with prosecutors to promote law enforcement, but they may have a very real and perverse

interest in disrupting prison administration by insisting on the fullest range of victim services that the courts will make available.

Some of these services could force prison wardens to choose between cost- and labor-intensive measures to afford incarcerated victims their participatory rights, or foregoing prosecution of offenses

committed within prison walls. Either choice could undermine the

safety of prison guards.

The risk to law enforcement thus arises not from the substantive

rights accorded to crime victims but rather from the use of the

Constitution to recognize those rights. There are two basic ways in

which the current bill could undermine the prosecution and punishment of offenders. First, it may not adequately allow for appropriate exceptions to the general rules. And second, its provisions

regarding the enforcement of victims’ rights may harm prosecutions by delaying and complicating criminal trials. Both types of

problems are uniquely troublesome where the source of the victims’ rights is the Constitution.

The restrictions clause of section 2 has two basic interpretive

problems. First—— Mr. NADLER. What?

Mr. ORENSTEIN. I’m sorry, the restrictions clause, section 2 of the

current bill, it has two problems. The first one is that it uses the

word restrictions rather than the word exceptions, as an earlier

version did. And that might make it impossible to accommodate the

cases where what’s really needed is an exception. That is, allowing

a right such as notice of a cooperating witness’ guilty plea to be

skipped entirely rather than simply restrict it in some way.

Second, the wording of the restrictions clause may well deprive

prison officials of the flexibility they need when the victims whose

rights are at stake are themselves incarcerated offenders.

In addition, the language used to provide some of the substantive

rights could also cause unintended problems. For example, because

of language changes from earlier versions of the amendment, the

right to be heard at certain proceedings set forth in this bill could

be interpreted to forbid reliance on a written statement, and could

even force the Government to shoulder the affirmative duty of

making sure that prisoners are present and allowed to speak at

certain proceedings, rather than allowing the participatory right to

be vindicated in certain cases by the use of a written statement.

Likewise, the amendment’s broad language could ultimately force

prosecutors to keep track of civil lawsuits in which there is no law

enforcement role but which involve the crime, and to keep victims

notified about such proceedings. This would impose a burden that

is totally unrelated to improving the lot of crime victims in the

criminal justice system.

Finally, the revised language in the amendment regarding adjudicative decisions and the availability of certain remedies could

lead to endless litigation and interlocutory appeals in criminal

cases that greatly interfere with what should be the main goal for

45

1The views expressed herein are mine alone.

prosecutors and victims alike: the conviction and punishment of the

offender.

Mr. NADLER. I’m sorry, what would lead to the interlocutory appeals?

Mr. ORENSTEIN. And I explained this at length in my written testimony. The, the fact that the remedies clause in the current bill

has taken out language expressly forbidding certain types of appeals and continuances of trial I think could easily lead to an interpretation that means that such delays are allowed.

I’d just like to sum up by saying that our criminal justice system

has done much in recent years to improve the way it treats victims

of crimes but it has much yet to do. But we must never lose sight

of the fact the single, best way prosecutors and police can help

crime victims is to ensure the capture, conviction, and punishment

of offenders. In my opinion as a former prosecutor, the current bill

achieves the goal of national uniformity for victims’ rights only by

jeopardizing effective law enforcement. By doing so it ill-serves the

crime victims whose rights and needs we all want to protect.

Thank you very much.

[The prepared statement of Mr. Orenstein follows:]

PREPARED STATEMENT OF JAMES ORENSTEIN

I. INTRODUCTION

Mr. Chairman, Congressman Nadler, and distinguished Members of the Subcommittee, thank you for inviting me to testify before you today. It is an honor to

have a chance to speak with you about a matter as fundamentally important as our

Constitution, and to address two issues that mean a great deal to me: the rights

of crime victims and the effective enforcement of criminal law. As a federal prosecutor for most of my career, I have been privileged to work closely with a number

of crime victims, including those harmed by one of the worst crimes in our Nation’s

history. I have also been privileged to spend considerable time working with talented people on all sides of the issue to make sure that any Victims’ Rights Amendment to the Constitution would provide real relief for victims of violent crimes without jeopardizing law enforcement. I think it may be possible to do both, but I also

believe that there are better solutions that do not carry the severe risks to law enforcement inherent in using the Constitution to address the problem. In particular,

I believe that the current language of the Victims’ Rights Amendment—language

that differs in significant respects from the Amendment that came very close to passage in the last Congress—will in some cases sacrifice the effective prosecution of

violent offenders to achieve marginal and possibly illusory procedural improvements

for their victims.

I am currently an attorney in private practice in New York City and an adjunct

professor at the law schools of Fordham University and New York University.1

From February 1990 until June 2001, I served in the United States Department of

Justice as an Assistant United States Attorney for the Eastern District of New

York. For most of that time, I was assigned to the office’s Organized Crime and

Racketeering Section, eventually serving as its Deputy Chief. While a member of

that section, I prosecuted a number of complex cases against members and associates of La Cosa Nostra, including the successful prosecution of John Gotti, the Boss

of the Gambino Organized Crime Family.

In 1996, at the request of the Attorney General, I temporarily transferred to Denver to serve as one of the prosecutors in the Oklahoma City bombing case. I remained in Denver for 18 months to prosecute the trials of both Timothy McVeigh

and Terry Nichols, and then returned in the Spring of 2001 to represent the government when McVeigh sought to delay his execution on the basis of the belated disclosure of certain documents. During my time on the OKBOMB task force, I learned

first-hand about the many difficulties and frustrations that victims of violent crimes

face in our justice system, and I also learned how critically important it is for prosVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
46

2Statistics about state laws designed to protect crime victims are drawn from U.S. Department of Justice, Office for Victims of Crime, ‘‘Crime and Victimization in America, Statistical

Overview’’ (April 2002) (reporting data from the National Center for Victims of Crime’s Legislative Database about the status of legislation at the end of the States’ 2000 main legislative sessions) <http://www.ojp.usdoj.gov/ovc/ncvrw/2002/ncvrw2002—rg—3.html#legislative>.

ecutors and law enforcement agents to zealously protect the interests of crime victims while prosecuting the offenders.

From 1998 to 2001 I served on temporary work details at Justice Department

headquarters in Washington, D.C., first as an attorney-adviser in the Office of Legal

Counsel, and later as an Associate Deputy Attorney General. In both positions I was

a member of a Justice Department group that worked extensively with sponsors and

other supporters of previous versions of the Victims’ Rights Amendment. Our goal

in doing so was to ensure that if the Amendment were ratified, it would provide

real and enforceable rights to crime victims while at the same time preserving our

constitutional heritage and—most important from my perspective as a prosecutor—

maintaining the ability of law enforcement authorities to serve victims in the single

best way they can: by securing the apprehension and punishment of the victimizers.

II. THE NEED FOR A CONSTITUTIONAL AMENDMENT: ALLOWING CONGRESS TO LEGISLATE

FOR THE STATES TO ACHIEVE A UNIFORM NATIONAL STANDARD

I have no doubt that law enforcement authorities have historically been far too

slow in realizing how important it is to protect the interests of crime victims as investigations and prosecutions. Twenty years ago, when President Reagan received

the Final Report from the President’s Task Force on Victims of Crime, courts, prosecutors and law enforcement officers too often ignored or too easily dismissed the

legitimate interests of crime victims. Since then, Congress, the State legislatures

and federal and state law enforcement agencies have made great improvements in

official laws and policies. Further, thanks largely to effective advocacy by groups

representing the victims of crime, officers, prosecutors and judges are much more

sensitive now than they were two decades ago to the needless slights our criminal

justice system can thoughtlessly and needlessly impose, and are generally doing better in making sure that the system does not victimize people a second time. But

despite such improvements, there is more that can and should be done.

Amending the Constitution to achieve that goal has both risks and benefits, and

given the difficulty of curing any unintended adverse consequences, it should properly be considered only as a last resort. Given the legislative progress of the last

twenty years, the principal benefit of an Amendment would be the empowerment

of Congress to impose uniform national standards on the States. Congress has enacted a wide variety of statutes that protect crime victims. These laws ensure crime

victims’ participatory rights in the criminal justice system by making sure they are

notified of proceedings, admitted to the courtroom and given an opportunity to be

heard. They improve crime victims’ safety by providing for notification about offenders’ release and escape, and by providing for protection where needed. They help

crime victims obtain restitution from the offender and remove obstacles to collection.

But these measures only apply in federal criminal cases, and cannot protect crime

victims whose victimizers are prosecuted by State authorities.

And while every single State has enacted its own protections for crime victims—

32 of them by means of constitutional amendments, and the rest through legislative

change—the States have not uniformly adopted the full panoply of protections that

this body has provided to the victims of federal crimes.2 For example:

• Although every State allows the submission of victim impact statements at

an offender’s sentencing, only 48 States and the District of Columbia also provide for victim input at a parole hearing.

• Despite the prevalence of general victim notification procedures, only 41

States specifically require victims to be notified of canceled or rescheduled

hearings.

• There is a similar lack of procedural uniformity with respect to restitution:

only 43 States allow restitution orders to be enforced in the same manner as

civil judgments.

• Finally, while convicted sex offenders are required to register with state or

local law enforcement in all 50 states and the District of Columbia, and all

of those jurisdictions have laws providing for community notification of the

release of sex offenders or allowing public access to sex offender registration,

such notification and access procedures are not uniform.

47

3Of course, Congress would not be required to use such power to bring uniformity to the

States, but if it did not do so, the situation would be no different than under current circumstances, where congressional legislation improves procedures only in federal cases and the

treatment of victims in other cases is left to the effective but varying protection of the respective

States. 4While the problem of victim notification of cooperation agreements in organized crime cases

would in some cases be cured by the fact that the cooperating defendant’s plea takes place in

a non-public proceeding, reliance on that fact is not a complete solution. First, because the

standard for closing a public proceeding is so high, it is sometimes necessary to take such guilty

pleas in open court and protect the need for secrecy by scheduling it at a time when bystanders

are unlikely to be present and by not giving advance public notice of the plea. In such cases,

under the Amendment, victims allied with the targets of the investigation would be entitled to

notice. Second, the Amendment’s guarantee of the right to an adjudicative decision that considers the victim’s safety might make courts reluctant to release a cooperating defendant to

gather information without hearing from victims.

The ratification of a federal constitutional amendment could eradicate this disparity by empowering Congress to pass legislation that would override State laws

and bring local practices into line.3 The same result, however, could likely be

achieved through the use of the federal spending power to give States proper incentives to meet uniform national standards. But unlike reliance on spending-based

legislation, using the Constitution to achieve such uniformity carries the risk of unforeseen adverse consequences to law enforcement.

III. THE CURRENT VERSION OF THE VICTIMS’ RIGHTS AMENDMENT NEEDLESSLY

UNDERMINES EFFECTIVE LAW ENFORCEMENT

A. Background

It is important to emphasize that the potential risks to effective law enforcement

are not the result of giving legal rights to victims and placing corresponding responsibilities on prosecutors, judges, and other governmental actors. The changes

brought about by improved legislation in this area over the past twenty years have

demonstrated that the criminal justice system can provide better notice, participation, protection and relief to crime victims without in any way jeopardizing the prosecution of offenders. To the contrary, I strongly believe that prosecution efforts are

generally more effective if crime victims are regularly consulted during the course

of a case, kept informed of developments, and given an opportunity to be heard.

There are of course occasions when such participation can harm law enforcement

efforts, but my experience has been that most crime victims are more than willing

to accommodate such needs if their participation is the norm rather than an afterthought.

In most cases, crime victims and prosecutors are natural allies: both want to secure the offender’s punishment, and both are better able to work toward that result

if the prosecutor keeps the victim notified and involved. But there are a number of

cases—typically arising in the organized crime context and in prison settings— where the victim of one crime is also the offender in another, and the kind of

participatory rights that this Amendment mandates would harm law enforcement

efforts.

When a mob soldier decides to cooperate with the government, he typically pleads

guilty as part of his agreement, and in some cases then goes back to his criminal

colleagues to collect information for the government. If his disclosure is revealed, he

is obviously placed in great personal danger, and the government’s efforts to fight

organized crime are compromised. Under this Amendment, such disclosures could

easily come from crime victims who are more sympathetic to the criminals than the

government. To illustrate that perverse kind of alliance: When I was working on the

case against mob boss John Gotti, ten weeks before the start of trial, Gotti’s underboss, Salvatore Gravano, decided to cooperate and testify—but for weeks after

he decided to do so he was still in a detention facility with Gotti and other criminals

and at grave risk if his cooperation became known. Luckily, that did not happen.

But there were clearly victims of Gravano’s crimes who would have notified Gotti

if they could have done so. Gravano had, at Gotti’s direction, killed a number of

other members of the Gambino Family. Shortly after Gravano’s cooperation became

known, some of the murdered gangsters’ family members filed a civil lawsuit for

damages against Gravano—but not Gotti—and sought to use the civil discovery procedures to collect impeaching information about Gravano before the start of Gotti’s trial. That their agenda was to help Gotti was demonstrated by the fact that when

Gravano impleaded Gotti into the lawsuit, the problem disappeared.4

In the prison context, incarcerated offenders who assault one another may have

little interest in working with prosecutors to promote law enforcement, but may

have a very real and perverse interest in disrupting prison administration by insistVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
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5One possible solution to the prison problem would be for Congress to exercise its enforcement

power to exclude incarcerated offenders from the class of victims protected by the Amendment.

Such an approach would be overbroad, and arguably inconsistent with the purpose of Section

4, which is designed to ‘‘enforce’’ rather than restrict the Amendment. See, e.g., Saenz v. Roe,

426 U.S. 489, 508 (1999) (‘‘Congress’ power under § 5 [of the Fourteenth Amendment], however,

’is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.’’’) (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).

ing on the fullest range of victim services that the courts will make available. If,

as discussed below, the current language of the Amendment creates a right to be

present in court proceedings involving the crime, or at a minimum to be heard orally at some such proceedings, prison administrators will be faced with the Hobson’s choice between cost- and labor-intensive measures to afford incarcerated victims

their participatory rights and foregoing the prosecution of offenses within prison

walls that are necessary to maintain order. Either choice could undermine the safety of prison guards.5

The risk to law enforcement thus arises not from the substantive rights accorded

to crime victims, but rather from the use of the Constitution to recognize those

rights. As discussed below, there are two basic ways in which the Victims’ Rights

Amendment, as currently drafted, could undermine the prosecution and punishment

of offenders: first, it may not adequately allow for appropriate exceptions to the general rule; and second, its provisions regarding the enforcement of victims’ rights

may harm prosecutions by delaying and complicating criminal trials. Both types of

problems are uniquely troublesome where the source of victims’ rights is the constitution rather than a statute, and both are exacerbated by the likely effect on the

interpretation of this bill resulting from its differences with prior versions of the

Amendment. I will address the general interpretive issue first and then discuss in

turn the specific problems for law enforcement and prison administration caused by

particular portions of the current bill.

B. Interpreting The Amendment In Light Of Its Legislative History

During the time I worked for the government, I was fortunate enough to work

with a number of very talented and dedicated attorneys from the Justice Department, Congress, and victims’ advocacy groups to refine the language of the Victims’ Rights Amendment. I became involved in the effort while an earlier version, S.J.

Res. 44, was pending in the 105th Congress. By that time a great many issues had

been resolved, and only a few remained. Some, though not all, potentially implicated

very practical law enforcement concerns about the conduct of criminal trials and the

administration of prisons. Over the course of several months, most of those remaining concerns were addressed. By the time that S.J. Res. 3 of the 106th Congress

was favorably reported by the Senate Judiciary Committee (S. Rep. 106–254, Apr.

4, 2000 (the ‘‘Senate Report’’)), virtually every word in the previous bill had been

crafted and vetted with an eye to achieving a careful balance of meaningful victims’ rights and the needs of law enforcement.

Much of the language adopted in S.J. Res. 3 to address law enforcement concerns

has been changed or deleted in the current version. Even if Congress were writing

on a blank slate, I would have some concerns about some of the language in H.J.

Res. 91. But you are not writing on a blank slate, and that fact exacerbates the potential law enforcement problems created by some of the provisions of this bill. As

you know, when legislation contains ambiguous language, most judges will resolve

the ambiguity in part by looking at the legislative history and in part by applying

certain assumptions about legislative intent.

Thus, for example (and as discussed below), the remedies provision of the current

bill no longer contains an explicit prohibition—as the previous version of the

Amendment did—forbidding a court from curing a violation of a victim’s

participatory rights by staying or continuing a trial, reopening a proceeding or invalidating a ruling. If the current version of the Amendment is ratified, courts interpreting it might rule that this was a deliberate change and that any ambiguity on

the issue must therefore be resolved in favor of allowing such remedies—remedies

that could well harm the prosecution’s efforts to convict an offender.

C. Exceptions And Restrictions, And The Need For Flexibility In Law Enforcement

And Prison Administration

There are unquestionably times when providing victims with the substantive

participatory rights set forth in the Amendment will be inconsistent with the interests of a successful prosecution or prison administration. For example, providing notice and an opportunity to be heard with regard to the acceptance of the guilty plea

of a potential cooperating witness—that is, a criminal who is willing to testify

49

6See, e.g., Shaw v. Murphy, 532 U.S. 223, 229 (2001); Turner v. Safley, 482 U.S. 78, 89 (1987).

against more serious offenders in exchange for leniency—may in some cases risk

compromising the secrecy from other offenders necessary to the successful completion of such an agreement. This is particularly true in the organized crime context,

where the victims may themselves be members of rival criminal groups. Likewise,

in the case of prison assaults, there may be cases where accommodating the

participatory rights of the victim inmate will unduly disrupt the safe and orderly

administration of the prison. I am confident that the sponsors of this bill and other

victims’ rights advocates agree that such exceptions are appropriate. The problem

is that the current language may not allow them.

1. The ‘‘Restrictions’’ Clause Generally

The current bill allows victims’ rights to be ‘‘restricted’’ ‘‘to the degree dictated by

a substantial interest in public safety or the administration of criminal justice, or

by compelling necessity.’’ Like its predecessor (which allowed ‘‘exceptions’’ to ‘‘be created only when necessary to achieve a compelling interest’’), the current version allows courts to provide flexibility in individual cases rather than relying on Congress

to prescribe uniform national solutions. The current bill also improves on the S.J.

Res. 3 by expanding the scope of circumstances in which courts can allow for such

flexibility. The previous bill’s limitation of exceptions to those ‘‘necessary to achieve

a compelling interest’’ would likely have triggered ‘‘strict scrutiny’’ by reviewing

courts, as a result of which virtually no exceptions would likely be approved. However, some of the language changes may harm the law enforcement interest in flexibility, as discussed below.

a. ‘‘Restrictions’’ rather than ‘‘Exceptions’’

Given the current bill’s use of the word ‘‘restrictions’’ in contrast to the previous

bill’s use of ‘‘exceptions,’’ I am concerned that courts will interpret a ‘‘restriction’’

to mean something other than an exception to the general rule. An ‘‘exception’’

plainly refers to a specific situation in which the substantive rights that would normally be accorded under the amendment need not be vindicated by the courts at

all. If a ‘‘restriction’’ is interpreted to mean something different—such as, for example, a limitation on the way the right is to be afforded in a particular situation rather than an outright denial—the unintended effect might be harmful to law enforcement. For instance, in the case where it makes sense not to notify one gang member

who is the victim of another one’s assault that the latter is about to plead guilty

and cooperate, an ‘‘exception’’ approved by the court would allow the prosecutor not

to provide notice at all, whereas the ‘‘restriction’’ might nevertheless require some

form of notice—which might endanger the cooperating defendant and compromise

his ability to assist law enforcement.

b. Prison administration may not fall within ‘‘the administration of criminal justice.’’

Because so many of the victims who would be given rights under this Amendment

are themselves offenders, it is critically important that the bill provide sufficient

flexibility in the context of prison administration. One approach that would work

in the prison context—but that would likely fail to provide sufficient flexibility to

prosecutors—would be simply to have no ‘‘exceptions’’ language in the Amendment

at all. In the context of the First Amendment, for example, courts have held that

the legitimate needs of prison administration justify reasonable limitations on free

expression rights, despite the fact that the First Amendment contains no provision

for exceptions and is absolute in its phrasing.6 But if the Amendment is to provide

for exceptions or restrictions in some circumstances, prison administrators might

have to do far more than show reasonable needs for relief, and would instead have

to meet the explicit standard set forth in the Amendment.

As noted above, the current bill improves upon its predecessor by expanding on

the ‘‘compelling interest’’ standard for exceptions. However, if courts do not interpret

‘‘the administration of criminal justice’’ broadly, the legitimate needs of prison administrators might nevertheless be sacrificed. Although I would likely disagree with

an interpretation of the phrase that excluded prison administration, such an interpretation is certainly possible. Given that habeas corpus proceedings challenging the

treatment of prisoners are treated as civil cases and are collateral to the underlying

criminal prosecutions, it would not be unreasonable for a court to conclude that the

needs of prison administrators are not included within the phrase ‘‘administration

of criminal justice’’ and that prison-related restrictions of victims rights must therefore pass strict scrutiny under the ‘‘compelling necessity’’ prong of the Section 2.

50

7S.J. Res. 3 also provided the same right at non-public parole hearings ‘‘to the extent those

rights are afforded to the convicted offender.’’ There is no corresponding participatory right

under H.J. Res. 91. 8Such an interpretation of legislative intent would be consistent with the Senate Judiciary

Committee’s explanation of the corresponding language in S.J. Res. 3. See Senate Report at 34. 9Senate Report at 31.

2. Specific Flexibility Problems

a. The right ‘‘to be heard’’

One of the most important participatory rights for crime victims is the right to

be heard in a proceeding. As in previous versions, the current version properly limits this right to public proceedings so as not to jeopardize the need for security and

secrecy in proceedings that are not normally open to the public. However, certain

language changes from the previous version compromise that limitation, and certain

other changes discard the important flexibility achieved by allowing victim input to

come in the form of written or recorded statements.

The corresponding language in S.J. Res. 3 accorded a victim of violent crime the

right ‘‘to be heard, if present, and to submit a statement’’ at certain public proceedings.7 In contrast, the current bill provides a right ‘‘reasonably to be heard’’ at

such proceedings. While the drafters may have intended no substantive difference,

I believe that the courts will interpret the change in language to signal the opposite

intention. Specifically, I would expect courts to interpret the deletion of ‘‘submit a

statement’’ to signal a legislative intent to allow victims actually to be ‘‘heard’’ by

making an oral statement. Nor do I think the use of the term ‘‘reasonably to be

heard’’ would alter that interpretation; instead, I believe courts would likely reconcile the two changes by interpreting ‘‘reasonably’’ to mean that a victim’s oral

statement could be subjected to reasonable time and subject matter restrictions.8 If

the above is correct then prison officials might face an extremely burdensome choice

of either transporting incarcerated victims to court for the purpose of being heard

or providing for live transmissions to the courtroom.

A related problem would extend beyond prison walls. Because the difference between the previous and current versions of the Amendment suggest that a victim

must be allowed specifically to be ‘‘heard’’ rather than simply to ‘‘submit a statement,’’ a victim might persuade a court that the ‘‘reasonable opportunity to be

heard’’ guaranteed by the current version of the Amendment carries with it an implicit guarantee that the government will take affirmative steps, if necessary, to accord such a reasonable opportunity. This undermines the intent of the Amendment’s

careful use of negative phrasing with respect to the right not to be excluded from

public proceedings—a formulation designed to avoid a ‘‘government obligation to

provide funding, to schedule the timing of a particular proceeding according to a victim’s wishes, or otherwise assert affirmative efforts to make it possible for a victim

to attend proceedings.’’9 Further undermining that intent is the fact that unlike its

predecessor, the current version of the Amendment does not include the phrase ‘‘if

present’’ in the specification of the right to be heard.

b. Providing notice of ancillary civil proceedings.

Section 2 provides that ‘‘[a] victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime....’’ Some

public proceedings ‘‘involving the crime’’ are civil in nature, and normally proceed

without any participation by the executive branch of government. Here again, the

change in language from S.J. Res. 3 could be problematic: that bill used the phrase

‘‘relating to the crime,’’ which the Senate Judiciary Committee noted would

‘‘[t]ypically . . . be the criminal proceedings arising from the filed criminal charges,

although other proceedings might also relate to the crime.’’ Senate Report at 30–

31. A court interpreting the current bill might conclude that the change from ‘‘relating to’’ to ‘‘involving’’ was intended to make it easier to apply the Amendment to

proceedings outside the criminal context.

Thus, for example, if an offender murders multiple victims and the survivors of

one victim bring a civil suit for damages against the offender, this Amendment

would give the non-suing victims’ relatives an affirmative right to notice of the public proceedings in the lawsuit—without specifying who must provide the notice. The

only possible candidates are the plaintiff (who is herself a crime victim and should

not be burdened by this Amendment), the court (which is already overburdened and

may lack the information necessary to provide the required notice), and the law enforcement agencies that investigated and prosecuted the crime. It seems inevitable

(and correct) that this burden would fall to law enforcement under the Amendment—a burden that is totally unrelated to improving the lot of crime victims in

51

10For the reader’s convenience, I have appended to this statement the text of the Victims’

Rights Amendment as set forth in S.J. Res. 3. 11See Senate Report at 36. 12This provision gave courts sufficient flexibility by allowing an order of only nominal restitution if there was no hope of satisfying the order and by conferring no rights with regard to a

particular payment schedule. Senate Report at 37. 13See Senate Report at 37–38.

the criminal justice system and that would further deplete the already strained resources of prosecutors and police, assuming that they even have sufficient knowledge of the ancillary suit to fulfill the obligation.

Two possible solutions seems likely to be unsatisfactory. First, the problem of providing notice in ancillary civil suits would be eliminated by changing ‘‘any public

proceeding’’ to ‘‘any public criminal proceeding.’’ However, such a change would likely exclude habeas corpus proceedings, which are considered civil in nature, despite

the important role they play in the criminal justice system. Second, as explained

above, I believe it is doubtful that Congress could eliminate the problem under the

‘‘restrictions’’ authority in the last sentence of Section 2. As noted above, such restrictions are reserved for matters of ‘‘public safety . . . the administration of criminal justice [and] compelling necessity.’’ The burden associated with providing notice

in civil suits is plainly not a matter of public safety and would almost certainly fail

to withstand the strict scrutiny that the ‘‘compelling necessity’’ language will likely

trigger. And if the burden is held to be a sufficiently ‘‘substantial interest in the

. . . administration of criminal justice’’ to warrant use of the restriction power, then

it seems likely that virtually any additional burden to law enforcement or prison

officials would justify a restriction—making the rights set forth in the Amendment

largely illusory. Because I doubt that the courts would interpret the restriction

power to be so broad, I am concerned that there would be no legislative mechanism

available to cure this problem.

D. Potential Adverse Effects on Prosecutions

One of criticisms of the previous version of the Victims’ Rights Amendment was

the length and inelegance of its language. The substantive rights in Section 1 were

set forth in a series of very specific subsections resembling a laundry list, and the

remedies language of Section 2 set forth a bewildering series of exceptions to exceptions.10 But while the language of the current bill is more streamlined and reads

more like other constitutional amendments than its predecessor, it achieves such

stylistic improvement at the expense of clarity, which could result in real harm to

criminal prosecutions.

For the most part, this problem arises from the interplay of two clauses: the ‘‘adjudicative decisions’’ clause in Section 2 (recognizing 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’’) and the remedies

clause in Section 3 (‘‘Nothing in this article shall be construed to provide grounds

for a new trial or to authorize any claim for damages.’’). The former suggests that

all of the victims’ listed interests—in safety, the avoidance of delay, and restitution—are at stake and must therefore be considered in every adjudicative decision;

the latter, by deleting specific language from S.J. Res. 3, suggests the possibility of

interlocutory appeals of any such adjudicative decision that does not adequately consider all of the victim’s interests. In combination, these two aspects of the bill could

greatly disrupt criminal prosecutions.

1. Adjudicative decisions

The previous version of the Amendment included in its list of crime victims’ rights

the following three items: the right ‘‘to consideration of the interest of the victim

that any trial be free from unreasonable delay;’’ the right ‘‘to an order of restitution

from the convicted offender;’’ and the right ‘‘to consideration for the safety of the

victim in determining any conditional release from custody relating to the crime.’’ The interest in a speedy trial was generalized—it was not tied to a specific stage

of the prosecution, much less to every such stage. Such language allowed courts the

freedom to interpret the right to apply in proceedings at which the trial schedule

was at issue.11 The interest in restitution was specifically tied to the end of the case,

at which point the victim’s interest would be vindicated by the issuance of an appropriate order.12 And the interest in safety was explicitly tied to bail, parole and similar determinations.13

In contrast, the current language appears to require the consideration of all the

listed interests in the context of any ‘‘adjudicative decision’’ that a court (or, presumably, a parole or pardon board) makes in connection with a criminal case. Indeed,

it is precisely because of the contrast with the earlier formulation that such an inVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
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14 ‘‘Nothing in this article shall provide grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling, except with respect to conditional release or restitution or to

provide rights guaranteed by this article in future proceedings, without staying or continuing

a trial.’’

terpretation is plausible. And if that interpretation proves to be correct, then courts

and prosecutors will have to grapple with a number of questions, the resolution of

which could make the prosecution of offenders a far lengthier and complicated process. For example:

• Must every ‘‘adjudicative decision’’ in a criminal case examine the effects of

the ruling on the right to restitution?

• Must a victim be heard on disputes about jury instructions because the result,

by making conviction more or less likely, may affect her safety-based interest

in keeping the accused offender incarcerated?

• Does a crime victim have the right to object to the admission of evidence on

the ground that it might lengthen the trial?

Examples could be multiplied, and undoubtedly some would be more fanciful than

others. But given the change in language from the previous bill, and given the

countless adjudicative decisions that are made in every criminal prosecution, it

seems inevitable that the current version of the Amendment could cause real mischief in criminal prosecutions.

2. Remedies

The potential for unintended adverse consequences is magnified by the change in

language regarding remedies. This is one of the most challenging issues in crafting

a Victims’ Rights Amendment: the need to make crime victims’ rights meaningful

and enforceable while at the same time preserving the finality of the results in

criminal cases and also avoiding interlocutory appeals that could harm the interests

of speedy and effective prosecution. The balance that was struck in S.J. Res. 3 recognizes that a crime victims have a variety of interests that can be protected in a

variety of ways. Generally speaking, the remedies provision of S.J. Res. 3 recognized

that a crime victim’s interest in safety—which is at stake in decisions regarding an

accused offender’s release on bail—should be capable of vindication at any time, including through a retrospective invalidation of an order of release. On the other

hand, a victim’s participatory rights can effectively be honored by prospective rulings without the need to reopen matters that were decided in the victim’s absence.

Thus, for example, if a victim were improperly excluded from a courtroom during

the consideration of a motion in limine to exclude evidence, it would make more

sense to allow the victim to obtain appellate relief in the form of a prospective order

to admit the victim to future proceedings than a retrospective one that would vacate

the evidentiary ruling so that the matter could be re-argued in the victim’s presence. Moreover, it would plainly be contrary to the interests of effective law enforcement if a victim could obtain a stay or continuance of trial while the interlocutory

appeal of described above was pending. The remedies language of S.J. Res. 3, inelegant as it was,14 would have prevented such anomalous results. The more streamlined language of the current bill—by deleting the prohibitions against staying or

continuing trials, reopening proceedings, and invalidating ruling—would not.

IV. CONCLUSION.

Our criminal justice system has done much in recent years to improve the way

it treats victims of crime, and it has much yet to do. But in trying to represent

crime victims better, we must never lose sight of the fact that the single best way

prosecutors and police can help crime victims is to ensure the capture, conviction,

and punishment of the victimizers. In my opinion as a former prosecutor, the current version of the Victims’ Rights Amendment to the United States Constitution

achieves the goal of national uniformity for victims’ rights only by risking effective

law enforcement. By doing so, it ill serves the crime victims whose rights and needs

we all want to protect.

I will be happy to answer any questions the Subcommittee may have.

APPENDIX: THE 2000 VERSION OF THE VICTIMS’ RIGHTS AMENDMENT

(FROM S. J. RES. 3, 106TH CONGRESS)

SECTION 1. A victim of a crime of violence, as these terms may be defined by

law, shall have the rights:

53

to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime;

to be heard, if present, and to submit a statement at all such proceedings to

determine a conditional release from custody, an acceptance of a negotiated

plea, or a sentence;

to the foregoing rights at a parole proceeding that is not public, to the extent

those rights are afforded to the convicted offender;

to reasonable notice of and an opportunity to submit a statement concerning

any proposed pardon or commutation of a sentence;

to reasonable notice of a release or escape from custody relating to the crime;

to consideration of the interest of the victim that any trial be free from unreasonable delay;

to an order of restitution from the convicted offender;

to consideration for the safety of the victim in determining any conditional release from custody relating to the crime; and

to reasonable notice of the rights established by this article.

SECTION 2. Only the victim or the victim’s lawful representative shall have

standing to assert the rights established by this article. Nothing in this article shall

provide grounds to stay or continue any trial, reopen any proceeding or invalidate

any ruling, except with respect to conditional release or restitution or to provide

rights guaranteed by this article in future proceedings, without staying or continuing a trial. Nothing in this article shall give rise to or authorize the creation

of a claim for damages against the United States, a State, a political subdivision,

or a public officer or employee.

SECTION 3. The Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created

only when necessary to achieve a compelling interest.

SECTION 4. This article shall take effect on the 180th day after the ratification

of this article. The right to an order of restitution established by this article shall

not apply to crimes committed before the effective date of this article.

SECTION 5. The rights and immunities established by this article shall apply in

Federal and State proceedings, including military proceedings to the extent that the

Congress may provide by law, juvenile justice proceedings, and proceedings in the

District of Columbia and any commonwealth, territory, or possession of the United

States.

Mr. CHABOT. Thank you, Mr. Orenstein.

And our final witness this afternoon will be Mr. Voth from Ohio.

STATEMENT OF DAVID L. VOTH, EXECUTIVE DIRECTOR AND

VICTIM-OFFENDER MEDIATOR, CRIME VICTIM SERVICES OF

ALLEN AND PUTNAME COUNTIES, OH

Mr. VOTH. Mr. Chairman and Members of the Committee, I am

pleased to testify about my passionate desire to see H.J.R. 91 enacted as the 28th Amendment to the United States Constitution.

I have been director for 17 years of a non-profit crime victims’ assistance program serving——

Mr. CHABOT. Could you pull the mike also—could you pull that

mike over there? Thank you. You don’t have to start over.

Mr. VOTH. Okay.—with the restorative justice philosophy, and I

helped draft Ohio’s victims’ rights law and constitutional amendment. I am convinced that only a Federal victims’ rights amendment will cause essential victims’ rights to be meaningful, permanent, consistent, and accessible.

Victims’ rights must be meaningful. When people say they believe victims should have rights but they don’t need to be listed in

the U.S. Constitution I ask, which victim right is not important

enough to protect? Which victims’ rights should a Government official have the power to grant or withhold when you are raped?

Should a Government official be allowed to deny change of plea

54

schedule information to a grieving mother of a murdered child

seeking justice for the most traumatic and evil event in her life?

Should the Government be allowed to disregard the safety of a

domestic violence or stalking victim when making release decisions? Or to disregard the impact of months and years of delays on

a sexually assaulted child? Should a permanently disabled drunk

driving victim have a right to be heard, no matter who the prosecutor is, or in which State the crime happened? Should restitution

for victims be requested by prosecutors and ordered by judges? For

victims’ rights to be meaningful they must be articulated in our

Constitution.

Victims’ rights must be permanent. Our founding fathers presumed rights for victims. They were able to hire a constable and

a prosecutor to seek justice. But now victims are at the mercy of

the Government which exclusively operates this process. Victims

should not control or veto investigations, arrests, or the court sentence. Neither should victims be ignored. The middle ground between victim control and ignoring the concerns of victims is the

point of this amendment.

Many victims tell me, I felt treated like the criminal and I respond, I know what you mean, but I wish you were treated as well

as the criminal. The void of victim protections has been periodically

considered and changed by court rules, legislation, and State

amendments. The only enduring solution for victims’ rights is to

delineate them in our national charter.

Victims’ rights must be consistent. The ragged patchwork of victims’ rights provisions is not fair or respectful to citizens who call

police and are willing to testify in order to hold lawbreakers accountable. Even Federal victims’ rights laws only apply to victims

of Federal crimes, leaving out 98 percent of America’s crime victims. An average of 50 percent of victims say they would not report

the same crime again because of how poorly they were treated.

Americans deserve a core of consistent rights upon which States

may add. I think that Judge Randall Basinger, a respected judge

in Putnam County, Ohio common pleas court and instructor of constitutional law at Bluffton College spoke for all judges when he

noted that a victims’ rights amendment to the U.S. Constitution

would result in more uniform rights in courts across the Nation,

and more systematic balancing with similar defendant rights.

Prosecutors and judges should not differ so widely in implementing similar victims’ rights. Courts should not ignore victims

just because they fear violating defendants’ rights. Courts allow the

sixth amendment right to a fair trial to be routinely abused as a

ploy to exclude victims by simply handing them a subpoena as a

potential witness. Defendants have a right to a public trial, not a

private one. And a right to confront witnesses, not to exclude them.

Only with a floor of rights in the victims’ rights amendment will

courts be able to consistently balance defendants’ interest in avoiding a speedy trial with victims’ interest in avoiding unreasonable

delay.

Victims’ rights should be accessible. The amendment provides

legal standing to be heard now lacking in the patchwork of rights

and remedies across this Nation. Without the right of victims to

ask for enforcement of their rights, the amendment is a beautiful

55

rescue buoy thrown out just out of the reach of the victim. Citizens

should not have to turn over to the Government all their interest

in such personal and pivotal proceedings without some due process

for their concerns.

In conclusion, the right of victims to have a voice in the justice

process is an American justice value which was assumed by our

constitutional authors but is now twisted in a practice of preemptive defendants’ rights over disjointed victim’ rights. Victims should

have a constitutional status for their essential rights to be meaningful, permanent, consistent, and accessible.

Thank you.

[The prepared statement of Mr. Voth follows:]

PREPARED STATEMENT OF DAVID L. VOTH

Mr. Chairman and Members of the Committee, I am pleased to testify about my

passionate desire to see H.J.R. 91 enacted as the 28th Amendment to the United

States Constitution. I have been Director for 17 years of a non-profit crime victim

assistance program serving all types of victims with a Restorative Justice philosophy, and I helped draft Ohio’s Victims Rights Law and Constitutional Amendment.

I am convinced that only a federal Victim Rights Amendment will cause essential

victim rights to be meaningful, permanent, consistent, and accessible.

VICTIMS RIGHTS MUST BE MEANINGFUL.

When people say they believe victims should have rights, but they don’t need to

be listed in the U.S. Constitution, I ask, ‘‘Which victim right is not important

enough to protect?’’

Which victims rights should a government official have the power to grant or

withhold when you are raped? Should a government official be allowed to deny

change of plea schedule information to a grieving mother of a murdered child seeking justice for the most traumatic and evil event in her life? Should the government

be allowed to disregard the safety of a domestic violence or stalking victim when

making release decisions, or to disregard the impact of months and years of delays

on a sexually assaulted child? Should a permanently disabled drunk driving victim

have a right to be heard no matter who the prosecutor is or in which state the crime

happened? Should restitution for victims be requested by prosecutors and ordered

by judges? For victims rights to be meaningful they must be articulated in our Constitution.

VICTIMS RIGHTS MUST BE PERMANENT.

Our founding fathers presumed rights for victims. They were able to hire a constable and prosecutor to seek justice, but now victims are at the mercy of the government which exclusively operates this process. Victims should not control or veto

investigations, arrests, or the court sentence. Neither should victims be ignored. The

middle ground between victim control and ignoring the concerns of victims is the

point of this amendment. Many victims tell me, ‘‘I felt treated like the criminal!,’’

and I respond, ‘‘I know what you mean, but I wish you were treated as well as the

criminal.’’ The void of victim protections has been periodically considered and

changed by court rules, legislation, and state constitutional amendments. The only

enduring solution for victims rights is to delineate them in our national charter.

VICTIMS RIGHTS MUST BE CONSISTENT.

The ragged patchwork of victim rights provisions is not fair or respectful to citizens who call police and are willing to testify in order to hold law breakers accountable. Even federal victim rights laws only apply to victims in federal crimes, leaving

out 98% of America’s crime victims. An average of 50% of victims say they would

not report the same crime again because of how poorly they were treated. Americans deserve a core of consistent rights, upon which the states may add.

I think Judge Randall Basinger, a respected judge in Putnam County (Ohio) Common Pleas Court, and instructor of Constitutional Law at Bluffton College, spoke

for all judges when he noted that a Victim Rights Amendment to the U.S. Constitution would result in more uniform victims rights in courts across the nation and

more systemic balancing with similar defendants rights.

56

Prosecutors and judges should not differ so widely in implementing similar victims rights. Courts should not ignore victims rights just because they fear violating

defendants rights. Courts allow the Sixth Amendment right to a fair trial to be routinely abused as a ploy to exclude victims by simply handing them a subpoena as

a potential witness. Defendants have a right to a ‘‘public’’ trial, not a private one,

and a right to ‘‘confront’’ witnesses, not to exclude them. Only with a floor of rights

in the Victims Rights Amendment will courts be able to consistently balance defendants interest in avoiding a speedy trial with the victims ‘‘interest in avoiding unreasonable delay.’’

VICTIMS RIGHTS SHOULD BE ACCESSIBLE.

The Amendment provides legal standing to be heard, now lacking in the patchwork of rights and remedies across this nation. Without the right of victims to ask

for enforcement of their rights, the Amendment is a beautiful rescue buoy thrown

just out of reach of the victim. Citizens should not have to turn over to the government all their interests in such personal and pivotal proceedings without some ‘‘due

process’’ for their concerns.

In conclusion, the right of victims to have a voice in the justice process is an

American justice value which was assumed by our Constitutional authors, but is

now twisted in a practice of pre-emptive defendant rights over disjointed victim

rights. Victims should have Constitutional status for their essential rights to be

meaningful, permanent, consistent, and accessible.

Mr. CHABOT. Thank you very much. I now recognize myself for

5 minutes for the purpose of asking questions.

Mr. Twist, let me direct the first question to you. Mr. Orensttein

in his testimony voiced concerns in opposition to the amendment.

One of the basis for that was his mobster or Mafia case. Now the,

the language within the constitutional amendment itself says,

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.

So what, what is your opinion relative to that phrase and how

that would affect the, the example that Mr. Orenstein has raised?

Mr. TWIST. Mr. Chairman, I appreciate the opportunity to comment on this. As Mr. Orenstein will remember, in negotiations with

the prior Administration one of the, the things that, that we, we

agreed to and, and put into the last version of the amendment and

that is continued in this version is a, a clause that allows for restrictions. And you have appropriately—a clause that allows for restrictions and you have appropriately referenced it.

But, but I would point out a couple of other things. Clearly, I

think in the examples that he cited, public safety interests do predominate. And I also would think in other examples that he cited,

concerns of the administration of justice predominate. And compelling necessity. I think all three tests can be met in, in his examples.

But I would just add two quick things, Mr., Mr. Chairman. One

is, and Mr. Orenstein will remember this, that we, we wrote in

public proceeding into the language of the amendment precisely because of concerns that the Justice Department, which he was a

member of, expressed that there were some proceedings that they

wanted to make non-public the cooperating witness proceedings

and that this would give them, and the prior Administration agrees

with this, the flexibility to keep some of these proceedings non-public and therefore the rights wouldn’t attach in the first place.

Mr. CHABOT. Thank you very much.

Mr. Voth, let me turn to you next, if I could. Obviously one of

the key issues that we all have to come to our own conclusion

57

about is the need to actually amend the United States Constitution

as opposed to doing it by Federal statute, or as the States have

done, passing State constitutional amendments. What is the key

issue to you? What is your principal argument as to why it’s necessary to amend the U.S. Constitution to really protect victims in

this country?

Mr. VOTH. I think it all boils down to the fact that we elect and

appoint law enforcement officers, prosecutors and judges who take

an oath to uphold the United States Constitution, and then we

turn around and ask them to balance the right of a victim with a

defendant, and they cannot because victims are not in the Constitution.

Mr. CHABOT. Okay, thank you very much.

Ms. Roper, let me turn to you now, if I can. While serving as director of the Stephanie Roper Committee and Foundation you’ve

had the opportunity to meet many victims and hear their stories,

as, as you’ve indicated. What lessons have, have you learned from

the victims who’ve been denied the right to attend and take part

in criminal proceedings?

Ms. ROPER. I can’t stress enough how intimidating being thrust

into the system is for anyone who’s a victim of crime. If all of us

are intelligent and understand the system, or think we understand

the system, imagine those who are marginalized by ethnicity, or

poverty, or lack of education? And judgments are made against

them. Information is denied.

But most importantly, there is this, there is an inadequacy in the

current law, whether it’s State or Federal law, to change the whole

culture of the criminal justice system. And that’s why this amendment is necessary, to balance and to consider both the offender’s

rights as we consider the victims’ rights in the process.

Mr. CHABOT. Thank you very much. And in the short time I’ve

got left let me turn to you, Mr. Orenstein, if I can. Now we’ve already heard from one former prosecutor, Mr. Twist here today, in

favor of the amendment and we’ve heard your concern about victims’ rights, but your position that it’s not the constitutional

amendment that is the way to deal with these victims’ rights. And

I know that you’re, you’re a former prosecutor yourself. Is it true

that the general consensus among other prosecutors and organizations around the country would be supportive of the victims’ rights

constitutional amendment, or do you know?

Mr. ORENSTEIN. I can’t say for sure. I’ve, I’ve heard concerns

against it, and also support for it. I think to the extent that there’s

a difference, State prosecutors are more often going to be concerned

about it because it’s going to affect what they do more often. But

I, I couldn’t tell you if there was consensus one way or the other.

Mr. CHABOT. Thank you very much. And I again want to thank

the panel for their testimony here this afternoon. That concludes

my time and at this time I recognize the Ranking gentleman from

New York for the purpose of asking questions.

Mr. NADLER. Thank you. Mr. Twist, you testified that—you raise

a couple of victims and you said that, I forget what the crime was,

but that they had waited quite a few years before there was a trial

and that there was undue delay. Is that correct?

Mr. TWIST. Yes, sir.

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Mr. NADLER. And what caused that delay?

Mr. TWIST. The delay, Mr., Mr. Chairman, Mr. Nadler, was

caused by a variety of reasons. The principal engine of the reasons

was the defendant’s request for one continuance after another.

Mr. NADLER. And the judge granted those continuances?

Mr. TWIST. Without notice to the—— Mr. NADLER. But he granted the continuances?

Mr. TWIST. Yes, sir.

Mr. NADLER. He felt he had reason to do it. Now let’s assume

that this amendment had been in effect.

Oh, and you also stated that, you also stated I think that the Arizona, I think you said it was, the Arizona law or constitution had

a victims’ rights provision in it which the judge ignored?

Mr. TWIST. Yes, sir.

Mr. NADLER. Now, so the judge ignored the law either because

he was ignoring the law—I don’t know the circumstance of the

case—or because perhaps there were countervailing considerations

which justified what he did. I don’t know the circumstances. There

may have been other provisions of the law why the continuances

were necessary to give the defendants time to prepare a proper defense. We don’t know.

But let’s assume this amendment had been in effect. What would

have happened? Someone would have had to go to Federal court to

maintain another proceeding to overrule the judge in the State

court?

Mr. TWIST. Highly unlikely, Mr. Chairman, Mr. Nadler.

Mr. NADLER. How else would—you’re saying that the, or similar

provisions in Arizona law or the—or Arizona constitution were not

followed by the judge, for good or not good reasons—we don’t know.

So now you have a provision saying essentially the same thing in

the United States Constitution. How would that make a difference?

Mr. TWIST. Well, certainly I think the State would provide an initial remedy through—— Mr. NADLER. But it didn’t in this case.

Mr. TWIST [continuing]. Through the State courts once the Federal amendment is ratified.

Mr. NADLER. No, no, but you just said—you just said that the

State law already said this, the judge for whatever reason ignored

the law. So would the State prosecutor—the judge would do the

same thing, for whatever reason he did it. Just the fact that it said

the same thing twice, once in Arizona law, once in Federal law,

probably wouldn’t cause a judge to behave any differently. You’d

now have to go and maintain a different—you’d have to sue in Federal court to order the State court to obey the Federal Constitution,

no?

Mr. TWIST. It’s, it’s possible that the would be required——

Mr. NADLER. And how would that get——

Mr. TWIST. And I would say——

Mr. NADLER. How would that speed things up?

Mr. TWIST. Pardon me?

Mr. NADLER. And how would that speed things up? Wouldn’t it

just add another layer of litigation?

Mr. TWIST. Well, presumably, rights once written into the United

States Constitution would not be ignored at will as they are now.

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Mr. NADLER. Whereas, rights into the Arizona constitution are

ignored at will by Arizona judges?

Mr. TWIST. All too often. And, and that—and the reason for that,

Mr. Nadler, is because the path of least resistance for a trial court

judge is always the default rule, which is to protect the defendant’s

U.S. constitutional rights.

Mr. NADLER. Well, are you suggesting—— Mr. TWIST. And the—— Mr. NADLER. Excuse me. Then are you suggesting that this, that

a Federal constitutional rule would now trump the defendant’s

Federal constitutional rights?

Mr. TWIST. No. What I’m suggesting is that, is that if both victim’s rights and defendant’s rights are written into the U.S. Constitution they will be honored and given each full effect to the

greatest extent possible.

Mr. NADLER. How do you give full effect—and I’m concerned with

this delay provision. If the judge in that case did not have proper

grounds for granting continuances, then the constitutional amendment here shouldn’t be necessary, and he should have listened to

the Arizona constitution. And if he ignored one he might ignore the

other.

But let’s assume he had proper grounds. That for—to vindicate

or to allow the, the, the, the, the defendant’s constitutional rights

to whatever—I don’t know the case so I can’t comment on it—to be

properly vindicated he had to grant those continuances. Then are

you saying that this amendment either wouldn’t matter, you’d still

have the delays, or it would trump the victim’s constitutional

rights—not the victim, the defendant’s constitutional rights, and

maybe get a reversal of the conviction later?

Mr. TWIST. I’m saying, Mr. Chairman, and Mr. Nadler, that this

case took almost 4 years to get to trial. It is inconceivable——

Mr. NADLER. I understand that.

Mr. TWIST [continuing]. That, that with, with any sort of respect

for the victim’s right to a speedy trial that it would have required

that, that much time to prepare. And—— Mr. NADLER. All right, thank you. Mr. Orenstein, since I don’t

have too much time left, should we expect much litigation as a result of this amendment? And what impact would that have on our

criminal justice system? And why wouldn’t any of the limitations

and the right of victims such as those intended to protect a substantial interest in public safety or the administration of criminal

justice shield prosecutors?

Mr. CHABOT. The gentleman’s time has expired but you can answer the question.

Mr. ORENSTEIN. All right. Well, in terms of the litigation, there

are a lot of phrases in, in this bill that are not only, that not only

need interpretation but that are also different from previous versions, and that difference I expect will cause a lot of litigation.

One change that makes a lot of litigation likely is that the substantive rights, or I’m sorry, the substantive interest that victims

are given are given with respect to every adjudicative decision. In

other words, every decision made in a criminal case has to take

those into account. And I, I expect—and I should say the victims

I’m talking about are the ones who are really more closely aligned,

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for example, in Mob cases, with, with criminals than with the Government. Most victims won’t, won’t abuse this for sure.

But the ones who do can cause endless litigation by saying, this

particular evidentiary ruling, for example, did not take into account

X, Y, and Z as it, as it was supposed to. Combined with the change

in the language about remedies that have dropped a prohibition

against staying or continuing a trial, reopening a proceeding, or invalidating a ruling, the lack of that language in the current bill

means that you likely can reopen rulings and stay trials and continue.

So the combination of those two could have a very serious effect

on the speed of trials.

Mr. CHABOT. Thank you very much. The gentleman from Virginia is recognized for 5 minutes.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. Twist, you, you indicated that the Arizona constitutional

amendment didn’t work. What were the remedies available in the

Arizona constitution, constitutional amendment?

Mr. TWIST. Under Arizona law, Mr. Chairman, Mr. Scott, under

Arizona law victims have standing to seek court orders and file

special actions to obtain orders that would protect their rights.

Mr. SCOTT. They have standing. And were those pursued?

Mr. TWIST. In the prosecution that involved the murder of Mr.

Goelzer’s brother they were not pursued during—no special action

was taken to an appellate court during the pendency of the case.

Mr. SCOTT. One of, one of—and I’ve got a lot of concerns in this

but one of the things that is absent is meaningful remedies. If

you’re going to have rights, you’ve got to have remedies. And if

you’re going to say somebody has a right to be heard, if they’re not

heard they ought to have a remedy, meaningful remedy. And if you

didn’t have remedies in the Arizona constitutional amendment, you

know, why wouldn’t you have the same problem with the U.S.?

What—let me ask another question. Which rights of the defendant are we going to deny, restrict, or abridge if this passes?

Mr. TWIST. Mr. Chairman, Mr. Scott, in my opinion the rights we

seek in the constitutional amendment do not deny or abridge any

right of a person accused or convicted of an offense.

Mr. SCOTT. That being the case, you would recognize that we

could do this by statute and not by constitutional amendment.

Mr. TWIST. Mr. Chairman, Mr. Scott, not at all. The, the, the two

don’t follow. The, the conclusion doesn’t follow the premise at all.

Because what happens is—and this is a somewhat, as Mr.

Orenstein and I were talking earlier, a pointy-headed point to

make, if I may. But I, I can say with a perfectly straight face that

the right to notice to a victim, the right to be heard, the right to

be present do not deny to a defendant any constitutional right, but

at the same time the system doesn’t protect those victim’s rights.

Mr. SCOTT. Let’s just, let’s just make the point that the—you’re

not denying, restricting or abridging any defendant’s rights. That

statutory legislative intent is not to restrict, deny, or abridge defendant’s rights.

Let me ask you, if a prosecutor or a judge violates the victim’s

rights, what remedies, Mr. Orenstein, would there be under this

bill?

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Mr. ORENSTEIN. If, I’m sorry, if the judge—— Mr. SCOTT. Under this constitutional amendment would he had

1983 action against the prosecutor for violating your rights?

Mr. ORENSTEIN. Congress could, through its enforcement power,

create such, such a right, but the amendment itself doesn’t provide,

provide for that I think. I think that’s the intent of—— Mr. SCOTT. Well, if you have a right don’t—what’s your remedy?

I mean, it’s meaningless if it doesn’t have a remedy. What is the

remedy, if you’re not given notice at each stage?

Mr. ORENSTEIN. I have to give you two answers. One is, if, if the

rights do have remedies—in other words, if they’re not illusory— the remedies seem to be limited to, or intend to be limited to prospective enforcement. Unfortunately, I think the way it’s written

will allow the kinds of delays that I’ve talked about because it

doesn’t have the prohibition against delaying trials, which would

have to happen while you’re going to an appeals court, to say I

wasn’t let in in a previous ruling.

If that’s not the case, then the rights may well be illusory. So—— Mr. SCOTT. Let me ask, let me ask you another question. The accused has a right to a speedy trial that trumps the prosecutor’s

right to slow things up. Does the victim, does the victim’s right to

a speedy trial trump the prosecutor’s right to slow things up?

Mr. ORENSTEIN. I don’t think it trumps the right. It’s, it’s, it’s

written as an interest in a speedy trial. The delay comes not because the victim will be trying to slow things down. I doubt that’s

likely.

Mr. SCOTT. No, the victim wants a speedy trial.

Mr. ORENSTEIN. The delay comes because—— Mr. SCOTT. And the prosecutor wants to slow things up. The defendant is sitting there uninterested. What happens? The victim

comes forward and says, I want a speedy trial. The prosecutor says,

no. Well, what happens?

Mr. ORENSTEIN. Well, I have to disagree. I think it’s rare that

the prosecutor will say no, that he wants—— Mr. SCOTT. The prosecutor’s case isn’t ready for trial. His witness

isn’t available, or otherwise he doesn’t have a case. The defendant

doesn’t know that. And you have a public trial and the witness

says, I want a speedy trial. And the prosecutor just looks embarrassed. What happens?

Mr. ORENSTEIN. Two things could happen. The judge could say,

I’m going to order an immediate trial in the victim’s interest, you

know, letting that trump—assuming it doesn’t violate the, the defendant’s right, because if it does then there’s a reversal. In which

case you endanger the prosecution because the prosecutor’s not

ready. Or the judge says, okay, I’ve heard you but you don’t get to

speed up the trial because the overall balance of interests protects

the right to a speedy trial.

The danger there is if, if the victim is dissatisfied and appeals

it and is allowed to slow things down ironically while that’s being

litigated it could—— Mr. SCOTT. Or, or, or, or the prosecutor—— Mr. CHABOT. The gentleman’s time has expired. Does the gentleman—I’ll give the gentleman an additional minute to conclude

his thought.

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Mr. SCOTT. Thank you. Or the prosecutor has to stand up in open

court and acknowledge, with the defendant looking, that he doesn’t

have a case.

Mr. ORENSTEIN. Exactly. That, that was my first——

Mr. SCOTT. In which case the defendant can insist on the speedy

trial and that would take precedence over everything.

Mr. ORENSTEIN. Again, if the judge agrees that he has that right,

sure, you could endanger the trial.

Mr. SCOTT. The victim. The victim.

Mr. ORENSTEIN. Or the defendant, defending on how it plays out.

Mr. SCOTT. Well, the defendant didn’t know he wanted to exert

that interest and the victim exposed the situation. There’s, there’s

some terms in the constitutional amendment that I’d like some

comment on. The public proceeding involving a crime, Mr.

Orenstein, does that involve civil, civil cases and/or habeas corpus?

Mr. ORENSTEIN. Habeas corpus almost certainly involves the

crime. It’s not part of the criminal justice system but it’s, it’s directly coming out of the criminal case, or likely directly coming out

of the criminal case.

If there’s a civil suit for damages based on the crime, for example, a wrongful death action, I would think that that involves the

crime. And so, the, the rights—there’d be at least an argument,

and I don’t know how courts would rule on it but I would expect

some would think, sure, this involves the crime, and therefore the,

the rights apply.

Mr. CHABOT. The gentleman’s time has expired. That concludes

the——

Mr. NADLER. Mr. Chairman?

Mr. CHABOT. Yes, Mr. Nadler.

Mr. NADLER. Mr. Chairman, I ask unanimous—well, let me say

this. I have here a statement in opposition from Safe Horizon,

which is a victims’ assistance group that assists over 250,000 crime

victims a year, and one from the National Clearinghouse, a statement in opposition from the National Clearinghouse for the Defense of Battered Women, and a few others. And I ask unanimous

consent to include these statements in—of opposition in the record.

Mr. CHABOT. Without objection.

[The information referred to follows:]

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Mr. NADLER. I also ask unanimous consent that all Members

may have additional time for—two weeks?

Mr. CHABOT. Yeah. It’s 7 days.

Mr. NADLER. For 7 days to insert in the record—— Mr. CHABOT. Without objection, the record will remain open for

7 days should any of the witnesses want to supplement their testimony in writing, you’re welcome to do that. We want to thank the

panel for testifying this afternoon. I think you’ve made an important contribution as this issue moves forward.

I also want to particularly thank the, the families of the victims

that came here today. We, we’re very sorry for the losses that you

all suffered but you’re playing a very important part in the legislative process in making the decision as to whether we amend the

United States Constitution. So your being here does make a difference so thank you very much for being here.

If there’s no further business to come before the Committee, we

are adjourned.

[Whereupon, at 2:12 p.m., the Subommittee was adjourned.]

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A P P E N D I X

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JON KYL, A U.S. SENATOR FROM THE

STATE OF ARIZONA

I would like to thank Representative Steve Chabot for holding this hearing and

inviting me to testify.

Scales of Justice Imbalanced

The scales of justice are imbalanced. The U.S. Constitution, mainly through

amendments, grants those accused of crime many constitutional rights, such as a

speedy trial, a jury trial, counsel, the right against self-incrimination, the right to

be free from unreasonable searches and seizures, the right to subpoena witnesses,

the right to confront witnesses, and the right to due process under the law.

The Constitution, however, guarantees no rights to crime victims. For example,

victims have no right to be present, no right to be informed of hearings, no right

to be heard at sentencing or at a parole hearing, no right to insist on reasonable

conditions of release to protect the victim, no right to restitution, no right to challenge unending delays in the disposition of their case, and no right to be told if they

might be in danger from release or escape of their attacker. This lack of rights for

crime victims has caused many victims and their families to suffer twice—once at

the hands of the criminal, and again at the hands of a justice system that fails to

protect them. The Crime Victims’ Rights Amendment would bring balance to the judicial system by giving victims of violent crime the rights to be informed, present,

and heard at critical stages throughout their ordeal.

Rights in the Amendment

The amendment gives victims of violent crime the right:

• To reasonable and timely notice of any public proceeding involving the crime

and of any release or escape of the accused;

• Not to be excluded from such public proceeding;

• Reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings; and

• 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 have been at the core of the amendment since 1996, when Senator

Feinstein and I first introduced the Crime Victims’ Rights Amendment. The amendment is the product of extended discussions with the White House, the Department

of Justice, Representative Steve Chabot, Senators Hatch and Biden, law enforcement officials, major victims’ rights groups, and such diverse scholars as Professors

Larry Tribe and Paul Cassell. The current version (S.J. Res. 35; H.J. Res. 91) is

similar to the version in the 106th Congress, but in response to comments about

the length of the amendment, the language has been honed and refined. As President Bush recently stated when announcing his support for the language of the

amendment, the amendment was ‘‘written with care, and strikes a proper balance.’’

<http://www.whitehouse.gov/news/releases/2002/04/20020416-1.html>. One of the nation’s leading constitutional scholars, Harvard Law Professor Laurence Tribe—who

is on the opposite end of the ideological spectrum from President Bush—concurred.

Professor Tribe recently praised the Amendment’s ‘‘greater brevity and clarity’’ and

commented, ‘‘That you achieved such conciseness while fully protecting defendants’

rights and accommodating the legitimate concerns that have been voiced about prosecutorial power and presidential authority is no mean feat. . . . I think you have

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done a splendid job at distilling the prior versions of the Victims’ Rights Amendment into a form that would be worthy of a constitutional amendment.’’ Letter of

April 15, 2002.

Crime Victims Need Rights in the Federal Constitution

If reform is to be meaningful, it must be in the U.S. Constitution. Since 1982,

when the need for a constitutional amendment was first recognized by President

Reagan’s Task Force on Victims of Crime, 32 states have passed similar measures— by an average popular vote of about 80 percent. These state measures have helped

protect crime victims; but they are inadequate for two reasons. First, each amendment is different, and not all states have provided protection to victims; a federal

amendment would establish a basic floor of crime victims’ rights for all Americans,

just as the federal Constitution provides for the accused. Second, statutory and state

constitutional provisions are always subservient to the federal constitution; so, in

cases of conflict, the defendants’ rights—which are already in the U.S. Constitution—will always prevail. The Crime Victims’ Rights Amendment would correct this

imbalance.

It is important to note that the number one recommendation in a 400 page report

by the Department of Justice on victims rights and services was that ‘‘the U.S. Constitution should be amended to guarantee fundamental rights for victims of crime.’’ U.S. Department of Justice, Office for Victims of Crime, New Directions from the

Field: Victims’ Rights and Services for the 21st Century 9 (1998). The report continued: ‘‘A victims’ rights constitutional amendment is the only legal measure strong

enough to rectify the current inconsistencies in victims’ rights laws that vary significantly from jurisdiction to jurisdiction on the state and federal levels.’’ Id. at 10.

Further: ‘‘Granting victims of crime the ability to participate in the justice system

is exactly the type of participatory right the Constitution is designed to protect and

has been amended to permanently ensure. Such rights include the right to vote on

an equal basis and the right to be heard when the government deprives one of life,

liberty, or property.’’ Id.

Some may say, ‘‘I’m all for victims’ rights but they don’t need to be in the U.S.

Constitution. The Constitution is too hard to change.’’ But the history of our country

teaches us that constitutional protections are needed to protect the basic rights of

the people. Our criminal justice system needs the kind of fundamental reform that

can only be accomplished through changes in our fundamental law—the Constitution. Attempts to establish rights by federal or state statute, or even state constitutional amendment, have proven inadequate, after more than twenty years of trying.

Then-Attorney General Reno has confirmed the point, noting that, ‘‘unless the Constitution is amended to ensure basic rights to crime victims, we will never correct

the existing imbalance in this country between defendants’ constitutional rights and

the haphazard patchwork of victims’ rights.’’ Senate Judiciary Committee Hearing,

April 16, 1997, statement of Attorney General Janet Reno, at 41.

On behalf of the Department of Justice, Ray Fisher, then Associate Attorney General, now a judge on the Ninth Circuit Court of Appeals, testified that ‘‘the state

legislative route to change has proven less than adequate in according victims their

rights. Rather than form a minimum baseline of protections, the state provisions

have produced a hodgepodge of rights that vary from jurisdiction to jurisdiction.

Rights that are guaranteed by the Constitution will receive greater recognition and

respect, and will provide a national baseline.’’ Senate Judiciary Committee Hearing,

April 28, 1998, statement of Associate Attorney General Ray Fisher, at 9.

A number of legal commentators have reached similar conclusions. Harvard Professor of Law Laurence Tribe has explained that the existing statutes and state

amendments ‘‘are likely, as experience to date sadly shows, to provide too little real

protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or any mention of an accused’s rights regardless of whether

those rights are genuinely threatened.’’ Senate Judiciary Committee Hearing, March

24, 1999, statement of Laurence Tribe, at 6. He also stated, ‘‘there appears to be

a considerable body of evidence showing that, even where statutory or regulatory

or judge-made rules exist to protect the participatory rights of victims, such rights

often tend to be honored in the breach....’’ Id. at 7. Indeed, according to a report

by the National Institute of Justice, even in states that gave ‘‘strong protection’’ to

victims rights, fewer than 60 percent of the victims were notified of the sentencing

hearing and fewer than 40 percent were notified of the pretrial release of the defendant. National Institute of Justice, Research in Brief, ‘‘The Rights of Crime Victims—Does Legal Protection Make a Difference?’’ at 4 (Dec. 1998).

If crime victims are to have meaningful rights, those rights must be in the U.S.

Constitution. As President Bush recently stated, ‘‘The protection of victims’ rights

is one of those rare instances when amending the Constitution is the right thing

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to do. And . . . the Crime Victims’ Rights Amendment is the right way to do it.’’

<http://www.whitehouse.gov/news/releases/2002/04/20020416-1.html>.

Bipartisan

The Crime Victims’ Rights Amendment has strong bipartisan support. In addition

to the strong support of President Bush, S.J. Res. 33 is cosponsored by 27 Senators,

including Republican leadership members such as Senators Lott, Craig, and

Hutchison, and 7 Democrats led by Senator Feinstein. Last Congress, a bipartisan

group of 39 State Attorneys General signed a letter expressing their ‘‘strong and unequivocal support’’ for an amendment. In January 1997, the National Governors’ Association voted in favor of an amendment. In 1996 and 2000, both the Republican

and Democratic Party Platforms called for a crime victims’ rights amendment. Additionally, the amendment is supported by major national victims’ rights groups, including Parents of Murdered Children, the National Organization for Victim Assistance, Mothers Against Drunk Driving (MADD), the Stephanie Roper Foundation,

Arizona Voice for Crime Victims, Crime Victims United, and Memory of Victims Everywhere.

The amendment has received strong support around the country. As I mentioned

earlier, 32 states have passed similar measures—by an average popular vote of almost 80 percent.

Conclusion

For far too long, the criminal justice system has ignored crime victims who deserve to be treated with fairness, dignity, and respect. Our criminal justice system

will never be truly just as long as criminals have rights and victims have none.

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PREPARED STATEMENT OF BUD WELCH

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PREPARED STATEMENT OF PROFESSOR DOUGLAS BELOOF

Mr. Chairman and Distinguished Members of the Subcommittee,

I am Professor Douglas Beloof. By way of background, so that the Members may

understand my work in this area, let me begin by describing my experience with

the issues before the subcommittee. I was a public prosecutor for many years, prosecuting violent crime, sex crime and homicide cases. I managed the victim assistance division of an urban prosecutors office and was involved in the development

of domestic violence prosecution units, multi-disciplinary child abuse prosecution

teams among other programmatic initiatives. I am presently an associate professor

of law, and am a leading expert in crime victim law. I have authored the only casebook for law students in the field of victims in criminal procedure. In addition to

my duties as professor I am the Director of the National Crime Victim Law Institute

which litigates crime victim law issues around the country and to that end has a

legal clinic at the law school run by my employees. I have represented victims in

criminal courts in various contexts.

I am writing to respond to a few of the points made by James Orenstein in his

Statement opposing H. J. Res. 91.

Mr. Orenstein makes essentially one point of any potential concern in his statement. Overall, he asserts that the passage of the Crime Victims Rights Amendment

(H. J. Res. 91) will make it harder to prosecute and convict criminals. I respectfully

disagree. In my experience, advancing the cause of victims’ rights, has not hampered law enforcement or prosecution, rather it has simply made for a more just

system. I have studied victim’s rights laws, and their operation, for more than a decade. One conclusion from this study is inescapable: prosecution is not hampered in

real cases where victims are provided real participatory rights, Mr. Orenstein’s hypothetical concerns to the contrary, notwithstanding. I would note that Mr.

Orenstein cites to no case where an effective prosecution could not be conducted because victim rights got in the way.

I note in passing that Mr. Orenstein concedes an important point, that ‘‘authorities have historically been far too slow in realizing how important it is to protect

the interests of crime victims.’’ While noting ‘‘improvements,’’ he concludes ‘‘there

is more that can and should be done.’’ He supports victims’ rights, he just doesn’t

think they need to be in the Constitution. He prefers that the Congress use ‘‘the

spending power to give states proper incentives to meet uniform national standards

[of victims’ rights.]’’ But then he notes, ‘‘Amending the Constitution . . . should be

properly be considered only as a last resort.’’

For twenty years, the strategy of states passing statutes has not worked, so it is

hard to see how federal sticks and carrots to do more of the same will matter at

all. Surely Mr. Orenstein cannot be serious about believing Congressional statutes

will solve the problem. Furthermore, in the area of congressional control of state

criminal procedure significant questions exist about the extent to which this is possible under evolving commerce clause restrictions. As a result the only statutes congress may be able to effectively implement is statutes involving the conduct of federal prosecutors. This leaves the vast number of crime victims, who are state crime

victims without any meaningful federal victim rights.

Even if one applied Mr Orenstein’s ‘‘last resort’’ test, the Crime Victims Rights

Amendment easily passes muster. We have two decades of experience with other

‘‘resorts’’ and they have proven less than adequate. Despite the best efforts of the

great body of law reform that we have seen enacted, victims are not much closer

to achieving enforceable participatory rights, which are routinely complied with,

rights even Mr. Orenstein, agrees victims deserve. This fact is now well documented. I refer the subcommittee to the earlier testimony of my colleagues Professor

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1Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984).

Laurence Tribe, Professor Paul Cassell (now confirmed by the Senate as a federal

judge), and Steve Twist who, in separate testimony, have set forth in some detail

the evidence for the failure. The evidence is so convincing that it is no longer a matter of partisan debate. It has led both current and prior Administrations to conclude

that only constitutional reform will truly protect the rights of victims.

Let’s sift through Mr. Orenstein’s analysis and look at his specific concern.

Curiously, Mr. Orenstein begins his argument with this critical concession:

It is important to emphasize that the potential risks to effective law enforcement are not the result of giving legal rights to victims and placing corresponding responsibilities on prosecutors, judges, and other governmental actors. The changes brought about by improved legislation in this area over the

past twenty years have demonstrated that the criminal justice system can provide better notice, participation, protection and relief to crime victims without

in any way jeopardizing the prosecution of offenders. To the contrary, I strongly

believe that prosecution efforts are generally more effective.

Mr. Orenstein then goes on to say that in only ‘‘a number of cases’’ would the

amendment ‘‘harm law enforcement efforts.’’ The examples he cites are organized

crime and prison cases, both of which involve ‘‘victims’’ who are more interested in

helping the defense than the government. Mr. Orenstein argues that

constitutionalizing the rights, rather than extending them in the first place is what

creates the ‘‘risk to law enforcement.’’ This is a curious position. Mr. Orenstein’s first argument in support of this assertion is based on the view that the language

of the amendment does not allow for adequate exceptions. Second, he argues that

enforcing the rights may delay and complicate criminal trials.

Is the language adequate to allow for exceptions?

Clearly the answer is yes. In the first place, it is the amendment does not even

extend to the circumstances of the organized crime cases he suggests. In Section 2

the rights are established as follows:

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 re- stricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity.

(Emphasis added).

In the example cited by Mr. Orenstein, after Salvatore Gravano, decided to testify

against John Gotti, the only right implicated would be the right to reasonable notice

of release. Any notice that would place a life in harm’s way would not be reasonable

under any circumstances. Moreover, none of the proceedings that might ensue after

Gravano’s cooperation needed to be public because the criteria for non-public proceedings is met where there is ‘‘an overriding interest based on findings that closure

is essential to preserve higher values and is narrowly tailored to serve that interest.’’ 1 Certainly the fact situation offered by Mr. Orenstein to any federal judge

would establish such an ‘‘overriding interest’’ and any proceeding would be closed,

and not public. As a result no ‘‘notice’’ need to given and the right not to be excluded

would not apply.

But there are even further protections for prosecutors within the language of the

amendment itself. The rights in the Amendment are subject to restrictions for public

safety, the administration of justice, or compelling necessity. All of these tests would

be met in the organized crime case Mr. Orenstein offers up. Mr. Orenstein is correct

that the word ‘‘Restriction,’’ is not a word as broad as ‘‘exception,’’ it is nonetheless

more than broad enough to allow the court adopt a rule of reason that would allowing ‘‘delaying’’ the benefits of right until it was safe to allow it.

This same analysis applies to the Mr. Orenstein’s prison case example. It is clear

that public safety concerns, administration of criminal justice concerns, and compelling necessity are all implicated by the prison case hypothetical. In addition, nothing

in the amendment would require inmate victims to be transported to court. The

amendment does not have a right to be present for precisely this reason and the legislative history makes this clear. The amendment is plainly drafted to eliminate any

interpretation that the government would have to pay for the trasport of inmateVerDate 11-MAY-2000 08:54 Jul 19, 2002 Jkt 000000 PO 00000 Frm 00091 Fmt 6601 Sfmt 6621 G:\WORK\CONST\050902\79525.000 HJUD1 PsN: HJUD1
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2See e.g., Art. II; § 2.1 Ariz. Const.

victims or any other type of victim. Finally, the statutory definition of victim could

exclude persons who are in custody for an offense. 2

Will enforcement of the rights be disruptive.

The most honest answer is: very, very rarely. So rarely that it is not a serious

concern in deciding whether to support the amendment. Enforcement of rights can

be easily accomplished with emergency review without delaying or disrupting the

prosecution. There is little reason to be concerned about for the speedy trial interests of victims disrupting the proceedings because the States interest in a reasonable time for preparation will always be accommodated under the Amendment.

The proposed amendment is intended to bring fairness to crime victims, without

hurting either the rights of the defendant or the government. In my view, the language of the Amendment accomplishes this goal exceedingly well. I join with Professor Tribe and other colleagues in endorsing the amendment.

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