U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

80–543 PDF 2013

VICTIMS’ RIGHTS AMENDMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

ON

H.J. Res. 40 

APRIL 25, 2013 

Serial No. 113–18 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

JIM JORDAN, Ohio, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

RON DeSANTIS, Florida 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 
(III) 

C O N T E N T S 

APRIL 25, 2013 

Page 

THE BILL 

H.J. Res. 40, the ‘‘Victims’ Rights Amendment’’ ................................................... 4 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

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

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

and Civil Justice ................................................................................................... 7 

WITNESSES 

William G. Montgomery, Maricopa County Attorney 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

John W. Gillis, Maricopa County Attorney’s Office’s Victim Services Division 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

Robert P. Mosteller, Professor, University of North Carolina School of Law 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 34 

Douglas E. Beloof, Lewis & Clark Law School 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 42 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on the Constitution and 

Civil Justice .......................................................................................................... 7 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution and Civil Justice ............................................................................ 60 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 213 

Supplement to the Testimony of William G. Montgomery, Maricopa County 

Attorney ................................................................................................................ 214 

(1) 

VICTIMS’ RIGHTS AMENDMENT 

THURSDAY, APRIL 25, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 11:34 a.m., in room 

2237, Rayburn Office Building, the Honorable Trent Franks, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Chabot, DeSantis, Nadler, and 

Scott. 

Staff present: (Majority), John Coleman, Counsel; Sarah Vance, 

Clerk: (Minority) David Lachmann, Subcommittee Staff Director; 

and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

Today’s Subcommittee on the Constitution and Civil Justice examines H.J. Res. 40, the bipartisan ‘‘Victims’ Rights Amendment’’ 

to the Constitution, also known as the VRA. 

An amendment to the Constitution for the rights of victims was 

first proposed by President Ronald Reagan’s Task Force on Victims 

of Crime in 1982. The task force wrote, in part—do we have some 

feedback here? I didn’t want you all to miss this quote. It is really 

a cool quote. [Laughter.] 

The task force wrote, in part, ‘‘We do not make this recommendation lightly. The Constitution is the foundation of national freedom, 

the source of national spirit. But the combined experience brought 

to this inquiry and everything learned during its process affirmed 

that an essential change must be undertaken. The fundamental 

rights of innocent citizens cannot adequately be preserved by any 

less decisive action.’’ 

Victims’ rights legislation amendments have enjoyed broad support at the state and Federal levels, passing by 80 percent margins 

in the states and securing influential bipartisan support at the 

highest levels of the Federal Government. Senators Kyl and Feinstein have championed victims’ rights in the Senate, and multiple 

house and Senate hearings have been devoted to advancing victims’ 

rights. 
2 

*The material submitted for the record is not reprinted in this hearing record but is on file 

with the Subcommittee. 

**The information referred to is available in the Appendix. 

Despite the best efforts at the state and Federal level to bring 

balance through statutes or state constitutional amendments, these 

efforts have proven inadequate whenever they come into conflict 

with bureaucratic habit or traditional indifference or sheer inertia 

or the mere mention of an accused’s rights, even when those rights 

are not genuinely threatened. 

As the U.S. Justice Department concluded after careful review of 

the issue, the existing ‘‘haphazard patchwork of rules is not sufficiently consistent, comprehensive or authoritative to safeguard victims’ rights.’’ In light of the inadequacies of our current laws, it is 

time we amended the United States Constitution to include rights 

of victims of crime, and it is time for Americans who become victims of crime to have the same rights anywhere in the United 

States, regardless of the state in which that crime occurs. 

The VRA would specifically enumerate rights for crime victims, 

including the right to fairness, respect and dignity; the right to reasonable notice of and the right not to be excluded from public proceedings related to the offense; the right to be heard at any release, 

plea, sentencing, or any other such proceeding involving any right 

established in the amendment; the right to proceedings free from 

unreasonable delay; the right to reasonable notice of the release or 

the escape of the accused; the right to due consideration of the 

crime victim’s safety and privacy; and the right to restitution. 

Moreover, the amendment expressly provides standing for the victim to enforce the enumerated rights. 

Supporters of a victims’ rights amendment have included presidents George H. W. Bush, Bill Clinton, George W. Bush; Attorneys 

General Janet Reno, John Ashcroft, and Alberto Gonzales; Professor Larry Tribe of the Harvard Law School; the National Governors Association; 50 state attorneys general; Mothers Against 

Drunk Driving; the National Association of Parents of Murdered 

Children; the National Organization of Victims’ Assistance; and finally, the National District Attorneys Association, the voice of the 

Nation’s prosecutors. 

Last year, the Phoenix Law Review, at the Phoenix School of 

Law, published a special issue containing articles and authors’ 

statements regarding the Victims’ Rights Amendment. I would like 

to ask unanimous consent to put it into the record. 

Hearing no objection, so ordered.* 

The issue is entitled, ‘‘A Proposed Victims’ Rights Amendment to 

the Constitution,’’ and it is dated April 19, 2012. 

In addition, my office has received several law review articles, 

additional written testimony, a proclamation by Governor Brewer 

of Arizona recognizing this week as Arizona Crime Victims’ Rights 

Week, and letters from victims’ rights organizations, including the 

National District Attorneys Association, the National Organization 

for Victim Assistance, the National Center for Victims of Crime, 

and the Justice Fellowship, which we will add to the hearing record 

as well.** 
3 

I look forward to hearing from the witnesses today on this critical issue, and I will now yield to the Ranking Member, Mr. Nadler, for his opening statement. 

[The resolution, H.J. Res. 40, follows:] 
4 

JA 

I 13,],H CONGRESS H J RES 40 1ST SESSro::-.J II II II 

Proposing an amendment to the Constitution of the United States to protect 

the rights of erime victims. 

IN THE HOUSE OF REPRESEKTATIVES 

ApRIL 23, 2013 

Mr. FRAKK8 of Arizona (for himself, Mr. C08TA, Mr. BOYCE, Mr. G08AR, Mr. 

SChvVEIKERT, Mr. SALYION, Mr. JOKES, }Ir. CHABOT, Mr. MEADOWS, 

Mr. NUNKELEE, Mr. CRAMER, Mr. BENTIVOLIO, Mr. FLEML'fG, and Mr. 

YOIl~~K.) introdueed the following joint resolut.ioll; whieh was referred to 

the Committee on the .1udieiary 

JOINT RESOLUTION 

Proposing an amendment to the Constitution of the rnited 

States to protect the rights of crime victims. 

Resolved the Senate and House qf HeTJr',esent~1tit'es 

2 of the United States assembled 

3 (tulo-thirds That the fol4 lowing article is proposed as an amendment to the Con5 stitution of the United States. which shall be valid to all 

6 intents and purposes as part of the Constitution when 

7 ratified by the legislatures of three-fourths of the several 

8 States: 
5 

2 

"iUtTICLE -

2 "SECTION 1. The rights of a crime ,>jctim to fairness, 

3 respect, and dignity, being capable of protection without 

4 denying the constitutional rights of the accused, shall not 

5 be denied or abridged by the United States or any State. 

6 The crime victim shall, moreover, have the rights to rea7 sonable notice of, and shall not be excluded from, public 

8 proceedings relating to the offense, to be heard at any re9 lease, plea, sentencing, or other such proeeeding involving 

10 any right established by this article, to proeeedings free 

11 from unreasonable delay, to reasonable notice of the re12 lease or escape of the accused, to due consideration of the 

13 crime victim's safety and privacy, and to restitution. The 

14 crime vietim or the crime victim's la"\vful representative 

15 has standing to flLHy assert and enforce these rights in 

16 any court. Notl1ing in this article prm~des grounds for a 

17 new trial or any daim for damages and no person aecuscd 

18 of the conduct described in section 2 of this article may 

19 obtain any form of relief. 

20 "SECTION 2. }110r purposes of this artide, a er·ime vic21 tim includes any person against whom the criminal offense 

22 is committed or who is directly and proximately harmed 

23 by the commission of an act, which, if committed by a 

24 competent adult, would constitute a crime . 

• HJ 40 IH 
6 

:3 

"SECTION 3. This article shall be inoperative unless 

2 it has been ratified as an amendment to the Constitution 

3 by the legislatures of three-fourths of the several States 

4 '\vithin 14 years after the date of its submission to the 

5 States by the 'This article shall take effect on 

6 the 1ROth day after the date of its ratification." . 

• HJ 40 IH 
7 

Mr. NADLER. Thank you, Mr. Chairman. I apologize for being a 

little late and I thank you for holding the hearing. 

First of all, I ask unanimous consent that the statement of the 

distinguished Ranking Member, Mr. Conyers, be placed in the 

record. 

Mr. FRANKS. Without objection, so ordered. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Thank you, Mr. Chairman. 

Today, we examine the proposed Victims’ Rights Amendment to the Constitution, 

an issue that has come before this Committee many times since the 104th Congress. 

The timing of this hearing is especially appropriate as it coincides with the National Crime Victims Rights Week. 

This hearing, therefore, provides an excellent opportunity to reflect not just on 

what has been accomplished, but what more we can do to aid victims of crime. 

I continue to have serious reservations about amending the Constitution in order 

to aid victims or crime. I do not believe a constitutional amendment is necessary, 

and I am deeply concerned that it will undermine both the rights of defendants, and 

the ability of law enforcement to do its job. 

As we consider the Victims’ Rights Amendment, I would like us to keep the following issues in mind. 

First, would a constitutional amendment actually provide any benefit to a victim 

of crime? 

As demonstrated by prior Congresses, there has never been any action on this undertaking because of the cumbersome nature of amending the Constitution. 

However, Congress has passed various measures that continue to provide meaningful assistance to victims and that protect their rights. 

The Federal Crime Victims Assistance Fund—managed by the FBI and various 

Justice Department Divisions—provides critical assistance to victims and survivors 

immediately after the crime. 

The Treasury Offset Program is a centralized debt collection program that helps 

agencies collect delinquent debts owed by criminals and to ensure that they pay restitution to crime victims. To date, these efforts have resulted in more than $24 million in restitution payments. 

The Office for Victims of Crime funds programs to enhance and provide comprehensive services for victims of human trafficking. 

The Drug Endangered Children Program is a collaboration among federal, state, 

and local nonprofit entities and the public to develop best practices to help educate 

law enforcement, justice system personnel, and service providers about children put 

in harm’s way by family members involved in drugs. 

There are also programs funded under the Children’s Justice Act and federal 

funding for victim-witness coordinators in U.S. Attorneys’s Offices and the FBI. In 

addition, federal funds support the Federal Victim Notification System, and state 

victim assistance formula grants. 

These are just a few of the efforts to provide assistance to crime victims. 

In contrast, the Victims’ Rights Amendment is utterly silent about how it would 

provide any meaningful counseling, funding, or other assistance that experience has 

shown is so helpful in the wake of a crime. 

The services now being provided to crime victims are invaluable, and it would 

make sense to augment them. 

Yet, while we are wasting time on this Amendment, budget cuts, including the 

sequester, have reduced the resources available to help victims and law enforcement. We should build on our successes, not undermine them. 

Second, we should consider how would this Amendment affect other rights under 

the Constitution. 

In particular, I am very concerned that the Amendment would interfere with the 

right to a fair trial notwithstanding its broad declaration that the ‘‘rights of a crime 

victim to fairness, respect, and dignity, [are] capable of protection without denying 

the constitutional rights of the accused.’’ 

Just because we say it doesn’t make it true. 
8 

Most troubling, it drastically changes the contours of a criminal trial from one in 

which the guilt or innocence of a defendant must be determined, instead requiring 

courts to behave in ways that assume guilt prior to trial. 

But other aspects of this Amendment, including actions that would prejudice the 

jury, or allow a third party to demand that a trial move ahead when the prosecution 

or the defense are trying to assemble a case, could wreak havoc. 

Finally, we should consider what would be the impact of a constitutional amendment on the administration of justice, particularly the effective and expeditious 

prosecution of criminals. 

The Amendment would create numerous opportunities for litigation to interfere 

with the judicial process. 

We have heard in the past from prosecutors and some victims rights advocates 

about the danger of giving so wide a group of individuals the right to sue. 

For example, a person who had abused a woman for 20 years, and who was ultimately stabbed by her, would enjoy the full range of newly created constitutional 

rights under this Amendment. 

A victim who objected to the prosecution’s strategy, or the decision by a prosecutor 

to wait for additional evidence, for example, could sue and assert that his or her 

constitutional rights had been violated under this Amendment. 

There are many reasons why, over the years, we have never advanced this constitutional amendment, and that we have sought legislative and administrative 

means of protecting the rights of victims, and assisting them in the aftermath of 

crime. 

I want to thank the witnesses for attending. I look forward to their testimony. 

Thank you, Mr. Chairman. I yield back. 

Mr. NADLER. Thank you. Thank you, Mr. Chairman. 

Mr. Chairman, today we consider a subject of great importance 

to every Member of this House, our responsibility to ensure that 

victims of crime have their rights respected, their needs met, and 

the role that everyone in the criminal justice system must play in 

assisting victims who have suffered great harm. It is especially 

suitable that we are discussing these vital issues during National 

Crime Victims Week. 

There was a time in this country when victims of crime were not 

treated respectfully. At times, crime victims felt, and not without 

justification, that they were considered almost extraneous to the 

process. With greater awareness and legal protections enacted at 

the state and Federal levels, victims now receive all kinds of assistance, including counseling, financial assistance, notification, and 

the respect to which anyone who has suffered harm is entitled. We 

offer both financial and technical assistance to states to help them 

provide services to crime victims. 

So while we have made great progress, we can and should do 

more. We could provide more funding for crime victims’ programs. 

We could provide the training and resources necessary to ensure 

that our existing laws, which require notice and assistance to crime 

victims, are fully enforced. 

One thing we did recently that will help crime victims was to put 

an end to the delays and obstructionism that held back the reauthorization of the Violence Against Women Act. The resources that 

that act provides to victims of some of the most heinous crimes is 

invaluable. 

Crime victims also need to see the guilty party is punished and 

to be reassured that neither they nor anyone else will have to fear 

further victimization by that individual. In that regard, I have serious concerns about this proposed constitutional amendment. We 

have heard from law enforcement professionals that it will do more 
9 

to obstruct the wheels of justice than to provide victims with the 

assistance they need to put their lives back together. It will certainly spark extensive litigation in our already over-burdened 

criminal justice system, and it may provide an opportunity for people who do not have the best of motives to cause terrible trouble 

in prosecutions. 

Our first obligation to crime victims is to provide assistance, but 

we must do the job right. Constitutional amendments may make 

for great headlines, but they are no substitute for the resources victims and law enforcement need. Offering symbolic gestures to 

crime victims and stonewalling legislation that would provide assistance to them is not the way to help victims of crime. 

Cutting funding for victim assistance programs, as the sequester 

legislation has done in the name of fiscal austerity, is certainly not 

the way, and I hope that my colleagues will remember that when 

we take up the Balanced Budget Constitutional Amendment later 

this year. For example, the Crime Victims Fund was established by 

the Victims of Crime Act to provide funding for state victim compensation and assistance programs. The CVF, the Crime Victims 

Fund, provides funding for discretionary grants for private organizations’ assistance, the Federal Victim Notification System, funding 

for victim assistance staff within the FBI and the executive office 

of the U.S. Attorney, funding for the Children’s Justice Act Program, and compensation for victims of terrorism. It is funded 

through criminal fines, forfeited appearance bonds, penalties and 

special assessments collected by the U.S. Attorney’s Office, Federal 

courts, and the Federal Bureau of Prisons. 

Since 2002, Congress has allowed gifts, bequests and donations 

from private entities to be deposited into the CVF. For fiscal year 

2012, Congress set the CVF distribution cap at $705 million. For 

fiscal year 2013, the Obama Administration requested an increase 

in the CVF cap by $365 million, to a total of $1.07 billion, but Congress limited funding to $705 million. According to OMB, the sequester resulted in the loss of approximately $36 million to that reduced number. This means real less services to victims of crimes. 

So if we are to measure Congress’ commitment to crime victims 

in terms of providing them with actual assistance instead of by 

rhetoric, then this Congress and the reckless budget cutters simply 

don’t measure up. 

Amending the Constitution is also difficult, as it should be. We 

have only had, since the Bill of Rights was added in 1791, 17 

amendments to the Constitution, three of them in the aftermath of 

the Civil War. So since the Civil War, only about a dozen. 

In the case of this proposed amendment, this Committee, much 

less this House, has not even acted on it. We do hold hearings 

every Congress, but that is the end of it. Debating yet another constitutional amendment that we know from long experience is going 

nowhere will certainly not help victims of crime. We will hold a 

hearing, we will talk about it today, and that will probably be the 

end of it. Judging from past experience, Republican congresses will 

hold this hearing, we will never mark up a bill, we will never pass 

it, and certainly the Senate won’t look at it. That will help no one. 

Certainly it won’t help victims of crime. Legislation that protects 

victims’ rights and improves services would help victims of crime. 
10 

I hope that we can work together to improve and expand those 

services in the future. 

I want to join the Chairman in welcoming our panel today, and 

I look forward to their testimony. I thank the Chairman and the 

witnesses, and I yield back the balance of my time. 

Mr. FRANKS. I thank the gentleman. 

We would now yield to the Chairman of the Committee, Mr. 

Goodlatte from Virginia. However, Mr. Goodlatte is not here at the 

moment. So without objection, if he arrives, we will allow him to 

make his statement at that time. Otherwise, we will place his 

statement in the record. 

I would now yield—let’s see, I think Mr. Conyers’ amendment or 

his opening statement will be placed in the record as well. 

Let me now introduce our witnesses. 

Bill Montgomery is the County Attorney for Maricopa County, 

Arizona. Mr. Montgomery is a West Point graduate, decorated Gulf 

War veteran, former Deputy County Attorney, and a professional 

prosecutor. Mr. Montgomery earned his J.D. from Arizona State 

University College of Law, graduating magna cum laude and receiving the Order of the Coif. As a prosecutor with the Maricopa 

County Attorney’s Office, he quickly gained a reputation as an aggressive prosecutor. Mr. Montgomery has helped shape legislation 

designed to protect victims of crime and reform child protective 

services, resulting in the creation of the Office of Child Welfare Investigations, and he continues to be a passionate advocate for crime 

victims’ rights in Arizona. 

Glad you are here, Bill. 

John W. Gillis is a former veteran, Los Angeles police officer, a 

former National Director of the Office of Victims of Crime in the 

U.S. Department of Justice, and a champion for the rights of crime 

victims. Following the 1979 murder of his daughter, Louarna, Mr. 

Gillis became a founding member of Justice for Homicide Victims, 

JHV, and the Coalition of Victims’ Equal Rights. Mr. Gillis was 

nominated by President George W. Bush and confirmed by the U.S. 

Senate in September, 2001, as the National Director, Office for Victims of Crime, U.S. Department of Justice. In addition to a Master 

of Science degree in public administration, University of Southern 

California, he holds a B.A. degree in political science from California State University at Los Angeles. He has studied law at Glendale College School of Law, and Mr. Gillis serves as Chief of the 

Maricopa County Attorney’s Office Victims Services Division, and 

on the Board of Directors at the National Crime Victim Law Institute. 

Thank you for being here, sir. 

Professor Robert Mosteller—is that Mosteller? I know no one has 

ever gotten that wrong before. Professor Robert Mosteller is an Associate Dean for Academic Affairs at the J. Dixon Phillips Distinguished Professor of Law at the University of North Carolina 

School of Law. Professor Mosteller holds a B.A. in history from the 

University of North Carolina, where he was President of the Phi 

Beta Kappa, a Master’s in public policy from Harvard, and a J.D. 

degree from Yale. After clerking on the United States Court of Appeals for the Fourth Circuit with Judge J. Braxton Craven, he 

worked for 7 years with the Washington, D.C. Public Defenders 
11 

Service, where he was Director of Training and Chief of the Trial 

Division. 

Professor Doug Beloof is a law professor at Lewis and Clark 

School of Law. Professor Beloof is a graduate of the University of 

California at Berkeley and received his J.D. from Northwestern 

School of Law of Lewis and Clark College. Professor Beloof began 

his law career clerking for Justice Thomas H. Tongue of the Oregon 

Supreme Court. As Director of the Multnomah County Victims’ Assistance Program, he worked on establishing procedures to assist 

victims of crime. He has been a prosecutor and a criminal defense 

attorney, as well as practicing tort law as a plaintiffs and defense 

attorney. Professor Beloof has published a casebook, Victims and 

Criminal Procedure, which won a national award for writing in 

victimology and the law. He has published numerous articles about 

civil liberties for crime victims and also the book Victims’ Rights, 

a Documentary and Reference Guide. 

Thank you, Professor, for being here. 

Each of the witness’ written statements will be entered into the 

record in their entirety, so I would ask that each witness summarize his or her testimony in 5 minutes or less. To help you stay 

within that time, there is a timing light in front of you. The light 

will switch from green to yellow, indicating that you have 1 minute 

to conclude your testimony. When the light turns red, it indicates 

that the witness’ 5 minutes have expired. 

Before I recognize the witness, it is the tradition of the Subcommittee that they be sworn, so if you would please stand to be 

sworn. 

[Witnesses sworn.] 

Mr. FRANKS. Let the record reflect that the witnesses answered 

in the affirmative. 

I would now recognize our first witness, and please turn the 

microphone on before you start speaking. 

Mr. Montgomery? 

TESTIMONY OF WILLIAM G. MONTGOMERY, 

MARICOPA COUNTY ATTORNEY 

Mr. MONTGOMERY. Thank you, Mr. Chairman. Dear Mr. Chairman and Members of the Committee, thank you for the opportunity 

to appear in support of House Joint Resolution 40, the Victims’ 

Rights Amendment, and let me also offer my gratitude to the 

Chairman and to Congressman Jim Costa for their continuing work 

on behalf of victims of crime. 

For the criticism regarding partisanship in our Nation’s capital, 

this legislation offers a ready antidote, a bipartisan approach to 

protecting our fellow citizens when they are harmed by crime, and 

this is truly a bipartisan cause. In the thousands of police reports 

I have read over the years as a prosecutor, I have never read of 

an instance in which a perpetrator checked the party affiliation of 

someone before victimizing them. 

In addition to serving as a prosecutor, I have also worked as a 

victim rights attorney, advocating for crime victims in state and 

Federal courts. Currently, I am the elected county attorney, called 

a district attorney in other jurisdictions, and lead an office serving 

4 million people in Maricopa County, Arizona. I am authorized over 
12 

300 prosecutors and have another 40 to 50 civil litigation attorneys 

on staff. Annually, we prosecute roughly 35,000 felonies. 

Accordingly, my observations of the status of victim rights is 

based on firsthand experience in a courtroom and in working directly with victims of crime. When I tell you that patronizing arguments in opposition to the Victims’ Rights Amendment are based 

on false assumptions and disingenuous hypotheticals, I am speaking from that firsthand experience. 

As for concerns over acknowledging the victim of a crime as a 

victim in the courtroom, let me simply state they are unfounded. 

It does not shift the government’s burden of proof or relieve the 

jury of their duty to find the facts in any given case to determine 

whether this victim was harmed by this particular defendant in the 

manner as alleged by the government. The argument that a victim’s right to proceedings free from unreasonable delay ignorantly 

claims that trials will proceed in violation of a defendant’s due 

process rights. This is an example of rights that can work in parallel without offense to either a defendant or a victim. A defendant 

has a right to a speedy trial but will not move faster than their 

attorney can prepare, and neither will the prosecution. Delays due 

to the needs of discovery or witness availability are not impacted. 

Those are reasonable delays. In my experience, victims understand that. They do not seek to push trials where the danger of a 

retrial can affect a just outcome. 

As for the argument that a constitutional right for a victim to be 

present throughout a trial would affect the defendant’s right to a 

fair trial, I can only say that this argument is as false and disingenuous as the hypotheticals offered in support in written testimony presented to this Committee. 

For the record, Abner Louima was never prosecuted for an offense stemming from his initial contact with police. The charges 

were dropped in his case, and the police officers who harmed him 

were sent to prison. 

As for Rodney King, he was never charged for his high-speed 

flight from police, and the two officers involved in beating him were 

imprisoned. 

But, as we have seen, ever since the cause of constitutional 

rights for victims of crime began, opponents will go to great lengths 

to scare lawmakers away from justice for all. 

Why is a victims’ rights amendment necessary? Because the inconsistent approaches to crime victim rights across our country is 

unacceptable for a Nation that pledges justice for all and not justice for some or justice only for the accused. What rights would a 

victim of the Boston Marathon bombing have if the case went to 

trial in a Massachusetts state court? They would have no constitutional rights to assert whatsoever, and the Supreme Judicial Court 

of Massachusetts has stated that a crime victim has no judicially 

cognizable interest in the prosecution of another. 

What about the parents of children lost in the tragedy of Newtown? What if the perpetrator had been tried in state court? There, 

they would be able to assert state constitutional rights, unlike in 

Boston, just 149 miles away in an adjoining state. However, the 

Supreme Court of Connecticut, in reviewing their Constitution, 

noted a review of the language of the Victims’ Rights Amendment 
13 

discloses that the amendment, while establishing many substantive 

rights for crime victims, does not include a right to appeal. 

As for the loss of life in Tucson, Arizona from a shooting that 

also affected a former Member of this House, had the perpetrator 

gone to trial in Federal court, the crime victims would have had 

fewer guaranteed rights than if the case had been tried in one of 

our state courts following our Victims’ Bill of Rights. Nevertheless, 

any contest between state statutory or constitutional rights and 

Federal constitutional rights, or Federal statutory rights and Federal constitutional rights, the result is the same. Victims lose. 

To those who hesitate or shy away from amending our Constitution to protect victims, I would say, with all due respect, it is a 

good thing they were not in the first Congress that provided us 

with a Bill of Rights. It is good they were not in the 38th Congress 

that ended slavery, or the 39th Congress that asserted rights to 

equal protection and due process. It is good they were not in the 

66th Congress that extended the right to vote to women, and it is 

good that they were not in the 87th Congress that ended the poll 

tax. You see, through the long course of our history, the great injustices in America have ended with constitutional justice. 

In closing, let me note that Sir Winston Churchill once observed 

that Americans can always be counted on to do the right thing 

after we have tried everything else. We have tried everything else. 

I encourage your support for the Victims’ Rights Amendment. 

[The prepared statement of Mr. Montgomery follows:] 
14 

STATEMENT 

OF 

WILLIAM G. MONTGOMERY 

MARICOPA COUNTY ATTORNEY 

BEFORE THE CONSTITUTION SUBCOMMITTEE 

COMMITTEE ON THE JUDICIARY 

UNITED STATES HOUSE OF REPRESENTATIVES 

IN SUPPORT OF 

H.J.RES. 

VICTIMS' RIGHTS AMENDMENT 

APRIL 25, 2013 
15 

Mr. Chairman and Distinguished Members: 

As one who has served as a career prosecutor and victim rights advocate', I am 

grateful for your continuing work and that of Congressman Jim Costa on behalf of 

victims of crime. Together you recognize the reality that, in order to honor our pledge of 

"justice for all" regardless of where a fellow American is victimized by crime, an 

amendment to our Constitution is essential to protect victims of crime in our criminal 

justice system. Too often, the concern as to whether the rights of victims of crime 

should be given the protection of our Constitution has been premised on the false 

calculus that any rights accorded to a crime victim must necessarily result in fewer 

rights for a criminal defendant. I offer the following in support of the proposition that 

protecting all of our citizens in the course of criminal justice proceedings is a case not of 

either one or the other, but a case of being able to protect both the victim and the 

defendant. 

My experience comes primarily from working in the Maricopa County Attorney's 

Office; the fourth largest prosecution office in the United States with over 300 

authorized prosecutors. Every day we pursue justice in each and every one of the over 

35,000 felony cases we handle, on average, each year for the four million people in the 

1 I have also \vorked for Arizona Voice for Crime Victims as a staff attomey for the Victims Legal Assistance 

Project providing pro bono legal services for enforcement of victim rights under Arizona's constitution and the 

Federal Enforcemenl Project for enforcement of victim rights under the Crime Victims' Rights ACl and currently 

serve on the Addsory Board for Lhc National Organization [or Victim AssisLancc. 

2 
16 

country's fourth most populous county. I have had the privilege of leading this office 

since November of 2010 and previously served in the office as a line prosecutor handling 

hundreds of felony cases and also serving as a supervisor of auto theft prosecutions. I 

have also worked for crime victim advocacy organizations, appearing as attorney of 

record on behalf of crime victims in state and federal courts at the trial and appellate 

levels. It has been my distinct honor and privilege to protect the rights of victims of 

crime while successfully securing constitutionally-sound convictions without 

jeopardizing the Due Process rights of the accused. 

For my entire career, Arizona crime victims have been cloaked with state 

constitutional protections and participatory rights, including standing to assert their 

rights in courts of review. Daily, I have witnessed the application of these rights in real 

cases - not merely discussed in hypotheticals pursuant to an esoteric intellectual 

exercise - real victims, real defendants, and real constitutional consequences. 

Nevertheless, state-level constitutional protections of rights for victims of crime 

sometimes fall short due to the lack of similar protections in our federal constitution. 

For example, I have had trial court judges order me to not refer to the crime 

victim as a victim, despite a state constitutional definition, because a defense counsel 

objected, asserting it would unfairly prejudice her client whom the jury would be told 

was presumed innocent and could not be convicted absent the state proving each and 

every element of each offense beyond a reasonable doubt - as required by our federal 

constitution. I have had a trial court judge actually consider a defense counsel's 

objection over a victim asserting her right to tell the court what she thought a defendant 

should receive as a sentence, despite a state constitutional right to do so. Trial courts 

have ordered victims to move away from juries and sit towards the back of courtrooms 
17 

or order them to not display any emotion during testimony certain to evoke emotion 

from a human being absent complete disregard for the horror of a given crime. Defense 

attorneys have filed motions arguing that certain family members did not meet the 

definition of victim despite clear language to the contrary in an attempt to strip the 

victims of their rights under the Arizona Constitution. These cases involved the parents 

of child victims; certain family members in homicide cases; business victims. Each of 

these incidents is possible when a defendant can simply allude to federal constitutional 

rights to circumvent state constitutional rights and our Supremacy Clause provides 

fertile ground for such efforts. 

Nevertheless, law enforcement, prosecutors and the courts in Arizona for over 20 

years have endeavored to protect many of the same rights that are included in the 

proposed 2013 Victims' Rights Amendment, including such rights as the right "to 

fairness, respect, and dignity" ... "the right to reasonable notice of, and shall not be 

excluded from, public proceedings relating to the offense, to be heard at any release, 

plea, sentencing, or other such proceeding involving any right established by this article, 

... to proceedings free from unreasonable delay, to reasonable notice of the release or 

escape of the accused, to due consideration of the crime victim's safety, and to 

restitution." For these rights our law provides that "the crime victim or the crime 

victim's lawful representative has standing to fully assert and enforce these rights in any 

court." 

In all of my years working with and in the criminal justice system, I cannot recall 

even one case where a defendant was granted a new trial as a remedy for a violation of 

his rights because a crime victim chose to exercise her rights as a crime victim. The 

recognition and protection of victim's rights in the United States Constitution would be 

4 
18 

a concrete exhibit of Martin Luther King's observation that "the arc of the moral 

universe is long but it bends towards justice." If a victim is guaranteed a right to dignity 

and respect, it is simply farcical that somehow this right must violate the constitutional 

rights of the accused. This is simply not the case and a perverse view of what we 

endeavor to do on a daily basis in seeking justice and raises the question: are we willing 

to accept a criminal justice system that then, by default, permissibly denies dignity and 

respect to victims of crime'? 

With the passage of the Crime Victims' Rights Act (CVRA), Kenna v. Dist. Court 

for C.D.Cal. 435 F.3d 1011 C.A.9 (Cal.) (2006) was the first landmark case recognizing 

the rights of federal crime victims to be heard at the sentencing of a defendant. Judge 

Kozinski eloquently summed up the role that crime victims endured for decades at the 

hands of our justice system: 

The criminal justice system has long functioned on the assumption 

that crime victims should behave like good Victorian children-seen 

but not heard. The Crime Victims' Rights Act sought to change this 

by making victims independent participants in the criminal justice 

process. 

Id. at 1013. 

I would qualify Judge Kozinski's observation slightly. The Crime Victim's Rights 

Act sought to simply recognize the participatory role of crime victims. In the State of 

Arizona, our constitution guarantees crime victims participatory status as well as a 

panoply of rights that have, for the most part, been effectively implemented without 

undermining the rights of criminal defendants. However, when judges engage in a 

constitutional calculus, the absence of federal constitutional rights for victims of crime 

ensures that there will be an imbalance in seeking to guarantee the rights of all 
19 

participants. Amending the United States Constitution is not some zero sum game as 

some may argue. A crime victim's rights and defendant's rights under the Constitution 

can coexist. Hard evidence demonstrates that enforcement of victim's rights gives a 

voice to the voiceless and effectuates the goals of the criminal justice system at every 

turn. 

Neither is there an assault on or an impediment to the "presumption of 

innocence." Threshold determinations of reasonable suspicion and probable cause are 

untouched and the status of a criminal defendant as an accused is not changed through 

the simple and just acknowledgment that a fellow member of our community was 

harmed and is a victim of a crime. Nothing in the proposed amendment shifts the 

burden of the government to prove beyond a reasonable doubt that the accused is the 

one to be held accountable for the criminal conduct in question. 

With respect to the impact on a prosecutor's ability to successfully prosecute a 

case in the face of the rights protected by the Victim Rights Amendment, let me deal 

with each in turn. First is the "rights of a crime victim to fairness, respect, and dignity." 

As a professional prosecutor, I have never had an issue with being able to conduct 

myself and exercise my duties and responsibilities while treating anyone - defendant, 

defense attorney, court staff, judge, or witnesses - with fairness, respect, and dignity; 

and especially someone who was a victim of a crime. Therefore, it is a disingenuous 

assertion that honoring a crime victim's federal constitutional right to fairness, respect, 

and dignity may somehow interfere with the successful prosecution of cases. To the 

contrary, honoring such a right cannot help but reinforce the confidence in our criminal 

justice system that we want victims of crime to have when we treat them with no less 

regard than we treat criminal defendants. This most basic right enshrined in our federal 

6 
20 

constitution will ensure that criminal justice systems at the federal and state levels will 

give due consideration and equal consideration to victims of crime as we habitually do 

for criminal defendants. 

Second, the "rights to reasonable notice of, and shall not be excluded from, public 

proceedings relating to the offense" present no hindrance to successful prosecutions and 

do not implicate any Due Process right of an accused. Providing notice to a victim of a 

crime has not prevented me from successfully prosecuting any case; having crime 

victims present in a courtroom has actually assisted in prosecuting a case because they 

are often essential to the truth seeking function we serve. Moreover, criminal 

defendants who counted on fear and intimidation to keep a crime victim from 

cooperating have had to reassess their trial strategy, often resulting in a plea agreement 

ahead of trial. In no case has the victim's right to be present throughout a trial resulted 

in an appellate court tinding that a defendant in Arizona was denied the right to a fair 

trial. Amending our federal constitution to guarantee notice to and attendance of a 

victim of crime will ensure a fair and consistent balancing of the interests of all involved 

in a criminal matter. 

Third, the right "to be heard at any release, plea, sentencing, or other such 

proceeding involving any right established by this article" is actually a fundamental 

necessity that cannot fairly be said to impose on a Due Process right of an accused. 

Given that decisions to release a criminal defendant, to accept a plea agreement, or to 

sentence a defendant are all premised on considerations of the impact of any given 

offense to the crime victim, why shouldn't a victim provide such information firsthand? 

Rather than complicate or frustrate the prosecution of any given case, the involvement 

and participation of a crime victim has afforded me important insight into the impact of 

7 
21 

a crime on the individual, their family, and their larger community, the very community 

prosecutors and courts presume to represent in resolving criminal cases. Given our 

criminal justice system's recognition of the value of in court testimony, a right to be 

heard for a victim of a crime is invaluable and crucial. Absent protections in our federal 

constitution of this right, assaults on common sense do occur and have required further 

litigation to defend as noted in the Kenna case above. 

Fourth, the right "to proceedings free from unreasonable delay" does not impede 

prosecutions and is a right complimentary to an accused's right to a speedy trial. 

Unreasonable delay should be the foundation of any consideration in setting 

conferences or trials in any given criminal case. As a prosecutor, I sometimes have had 

to request delays in prosecuting a case due to the need to obtain additional evidence or 

interview witnesses. Accommodating a crime victim's right to a speedy trial and 

ensuring my proper preparation for a case does not contlict. A crime victim, with a 

steadfast interest in seeing justice done, simply does not force a prosecutor to trial when 

more time is needed at the risk of jeopardizing a conviction or inviting error that can 

raise a due process argument on appeal. Nor would the language of the proposed 

amendment allow such a result. Delays required for legitimate trial preparation are not 

"unreasonable," and hence would not provide a basis for a victim's objection. In my 

state, victims have had the constitutional right to a speedy trial for the last 22 years and 

the right has never formed the basis to force either the state or a defendant to trial 

without adequate time to prepare. In my experience, victims of crime understand the 

necessary amount of time to ready a case for trial. However, crime victims do not 

understand and neither do I when a court entertains a motion to continue a homicide 

trial so a defense attorney can go on an annual shopping trip to buy shoes. 
22 

Consequently, a state-level constitutional guarantee is not as effective as a guarantee to 

be found in our federal constitution. 

Fifth, the right "to reasonable notice of the release or escape of the accused" 

cannot seriously be opposed. As a prosecutor, I cannot fathom a rational objection to be 

informed of a security threat to the victim's person. It is actually a recognition of our 

criminal justice system's failures that gives rise to the need to ensconce this right in our 

Constitution in the first place. 

Sixth, the right "to due consideration of the crime victim's safety" is simple 

recognition of what prosecutors endeavor to do on a regular basis. Our criminal justice 

system should equally endeavor to ensure the safety of a crime victim and of the 

community in which the defendant committed his crime(s). Protecting this right will 

not hinder successful prosecutions but, instead, should keep the criminal justice system 

focused on correct priorities in the due administration of justice. 

Seventh, the right "to restitution" is a basic right for victims of crime. I have been 

involved in numerous matters involving the litigation of restitution for victims of crime. 

The majority of the information is provided at the outset of a case when I first make 

contact with a crime victim and discuss the anticipated course of the case and ask 

questions about the degree of harm suffered, which necessarily includes economic loss 

resulting from the crime. Rather than complicate a prosecution, protecting a crime 

victim's right to be made economically whole due to the conduct the criminal is 

convicted of provides for a more holistic redress of the harm any given victim has 

suffered. 

Eighth, and certainly not least in importance is the recognition that "[tlhe crime 

victim or the crime victim's lawful representative has standing to fully assert and 

9 
23 

enforce these rights in any court." What a cruel comedy it would be to set forth basic 

protections for victims of crime in our criminal justice system and then afford no means 

of calling attention to even inadvertent failures to honor these rights. As a professional 

prosecutor, I have no more room to object to someone having standing to assert rights 

that enhance the criminal justice system than I have room to complain about the 

number of criminal defense attorneys retained on any given case. For rights to have 

meaning, a crime victim has to have the ability to raise issues to a court. Since these 

rights and issues are in the narrow category of those addressing a victim of a crime, 

rights and issues that our criminal justice system should welcome the opportunity to 

address to fulfill the promise of "justice for all," there can be no real objection by a 

prosecutor just as there has been no real impediment to prosecutions. 

The question may still be asked, though: Why do we need to amend our federal 

constitution? Shouldn't we endeavor to ensure more robust enforcement at the state 

level or insist on better enforcement of federal statutory rights'? The straightforward 

answer is also a question: would we tolerate disparate enforcement of a criminal 

defendants' rights across our 50 states? Would we permit differing levels of 

enforcement for the right to counsel, the right against self-incrimination, or the right to 

be secure in one's person, house, papers, and effects, against unreasonable searches and 

seizures? Then why do we tolerate such a situation for fellow Americans who have been 

harmed because of the criminal acts of another? 

Another way to illustrate the present situation crime victims face around our 

country is to compare the circumstances of victims of recent tragedies and what they 

would face if the perpetrators of each horrific instance were tried in either their state 

court or federal court in the state in which tragedy struck. Most immediately, what 

10 
24 

rights would a victim of the Boston Marathon bombing have if the case went to trial in a 

Massachusetts state court'? To begin with, they would have no constitutional rights to 

assert whatsoever. Because of that fact, the Supreme Judicial Court of Massachusetts 

was able to state that a crime victim "has no judicially-cognizable interest in the 

prosecution of another." Hagen v. Com., 437 Mass. 374, 375, 772 N.E.2d 32, 34 (2002). 

Given the relative weight accorded to constitutional rights versus statutory rights, any 

colorable assertion of federal constitutional rights vis-a-vis victim state statutory rights 

means victims lose. Even if a case were to be tried in federal court, the protections 

afforded by the Crime Victims' Rights Act are not constitutional and will be found 

wanting in the balance when measured against the constitutional protections afforded a 

criminal defendant. 

What about the parents of children lost in the tragedy of Newtown? What if the 

perpetrator had been tried in state court? There, they would be able to assert state 

constitutional rights, unlike in Boston just 149 miles away in an adjoining state. 

However, they have no avenue to seek appellate review of a denial of any of their rights. 

As noted by the Supreme Court of Connecticut in reviewing the Connecticut 

constitution, "[t]uming first to the constitution, a review of the language of the victim's 

rights amendment discloses that the amendment, while establishing many substantive 

rights for crime victims, does not include a right to appeal." State v. Gault, 304 Conn. 

330, 339, 39 A.3d 1105, 1111 (2012). 

Arizona has suffered her share of horror, as well, with the loss of life in Tucson 

from a shooting that also affected a former member of this House. In a somewhat more 

poignant irony, had the perpetrator gone to trial in federal court, the crime victims 

would have had fewer guaranteed rights than if the case had been tried in one of our 

11 
25 

state courts given the difference in weight between federal statutory rights and state 

constitutional rights. Nevertheless, any balancing test between state constitutional 

rights for a crime victim and federal constitutional rights for the accused would have 

had the same result as any similar balancing in any other court; in a contest of rights 

between an accused and a victim, the victim loses. Because there are no comparative 

rights for equal treatment in our criminal justice for a criminal defendant and a crime 

victim, there is no charge to treat each fairly. 

Passage of the Victim Rights Amendment to protect basic rights for victims of 

crime will provide the balance in our criminal justice system that many Americans may 

incorrectly presume exists already. Sadly, it does not and maddeningly varies from state 

to state. Even with robust state laws, without providing the protections afforded by the 

VRA through words to be read clearly in our Constitution at all levels of our criminal 

justice system, the mirage of "justice for all" will go on. 

12 
26 

Mr. FRANKS. Well, thank you, sir, very much. 

And now, Mr. Gillis, we would recognize you, sir, for 5 minutes. 

TESTIMONY OF JOHN W. GILLIS, MARICOPA COUNTY 

ATTORNEY’S OFFICE’S VICTIM SERVICES DIVISION 

Mr. GILLIS. Thank you, Mr. Chairman. Mr. Chairman and distinguished Members of the Committee, thank you for the opportunity 

to address you on the very important issue of rights for crime victims. As we hear so often, becoming a crime victim is not something one aspires to achieve through training and education. Although many people become unintended victims of crime each day, 

our United States Constitution fails to specifically provide basic 

rights to those individuals who are victimized. 

The victims are young and old. They are rich and poor. They are 

people of all ethnicities and colors. But our Constitution treats 

them all the same. It completely ignores them. 

In 1979, my 22-year-old daughter, Louarna, was murdered by a 

gang member who wanted to move up in the gang hierarchy. Getting into the upper echelon was a long, tough climb for an ambitious gang member. The shortcut was an assault on a police officer 

or a member of the officer’s family. He took the shortcut and murdered my daughter. He drove her to an alley where he shot her in 

the back of the head execution style, and then emptied the revolver 

in her back as she laid on the ground. He knew who she was because he had attended school with her, and he knew I was a police 

officer. 

But within a few months after the murder, he was in custody, 

and a few months thereafter the trial began. During the course of 

the trial, my wife and I were not allowed in the courtroom for any 

testimony. We were relegated to sitting on the bench in the hallway while the defendant’s family, friends and others were seated 

in the courtroom. We had to endure the sneers and jeers each time 

they walked past. 

There are still jurisdictions within the United States where victims of crime wait in hallways, back rooms, and outside the courthouses because they are not welcome by our criminal justice system. 

Over one-third of the United States have not amended their constitutions in order to provide victims in their state the right to be 

present in court proceedings. These states don’t see the need for 

victims to have the right to be heard or the right to be treated with 

fairness and dignity. Over one-third of the states still treat victims 

as second-class citizens who are not deserving of constitutional 

rights. 

The murderer of my daughter was tried for first-degree murder, 

and that made him eligible for the death penalty. Eleven jurors 

voted for first-degree and one juror voted not guilty. As we prepared for the second trial, the defendant pled guilty to second-degree murder, and that allowed him to avoid the death penalty. I 

was not present for the plea, I was not present for the defendant’s 

sentencing, nor was I allowed to make an impact statement. These 

events were important to me and my family, and I know these 

events are important to the majority of America’s crime victims. 
27 

Every crime victim in the United States should be guaranteed 

the right to be present, the right to be treated with dignity and respect, and the right to be heard should be a basic right under the 

Constitution. My experience as a crime victim in the criminal justice system is not unique and it is experienced by tens of thousands 

of crime victims across America. Like most victims, I tell my story 

not for sympathy or pity. I tell my story to let others know I speak 

from experience when I say the system needs a fix. 

Two days after the September 11, 2001 terrorist attack, I was 

confirmed by the Senate as Director of the Office for Victims of 

Crime. During my first days as director, I was completely immersed in the nuances of working with many states that had victims and next-of-kin from the terrorist attack. Each state had different variations and protocol for working with victims and nextof-kin, and those variations still exist. Mass victimization events 

such as 9/11 and the shootings at Virginia Tech and Northern Illinois University and Delaware State University and the Boston 

Marathon bombing involved victims from multiple states and highlight the need for a U.S. constitutional amendment. 

There are literally tens of thousands of individuals who are victimized outside their states of residence. With the expanding use 

of the Internet, including social media, there are no geographic 

boundaries. Child sexual predators reach across state lines in 

search of their victims. Rapists and pedophiles use social media to 

reach across state lines to find their victims. The pool for identity 

theft victims is nationwide. 

Our best hope for protecting the victims’ rights is a constitutional 

amendment, and I am optimistic that the bill will move from this 

Committee. My optimism is based on the fact that Members of this 

Committee have steadfastly supported the rights of women, the 

rights of children, and the rights of minorities. So I am optimistic 

that this Committee will support rights for victims. 

This constitutional amendment would be the capstone for the individuals and groups you have fought so hard to protect. This 

amendment is for people who do not have the power. This amendment is for people who do not have the funds, the people who do 

not have the will, and the people who do not have the wherewithal 

to individually fight for their rights. Thank you. 

[The prepared statement of Mr. Gillis follows:] 
28 

STATEMENT OF 

JOHN W. GILLIS, Victim 

SUPPORTING THE VICTIMS' RIGHTS AMENDMENT 

H. J. Res. 40, the "Victims' Rights Amendment." 

Before The: 

COMMITTEE ON THE JUDICIARY'S SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

Rayburn House Office Building 

APRIL 25, 2013, 11 :30 AM 

Mister Chairman, and Distinguished Members of the Committee, thank you for the 

opportunity to address you on the very important issue of rights for crime victims. As we 

hear so often, becoming a crime victim is not something one aspires to achieve through 

training and education. Although each day many people become unintended victims of 

crime, each day our United States Constitution fails to specifically provide basic rights to 

those individuals who are victimized. The victims are young and old. They are rich and 

poor. They are people of all ethnicities and colors. But our Constitution treats them all 

the same, it completely ignores them. 

In 1979, my 22 year old daughter, Louarna, was murdered by a gang member who 

wanted to move up in the gang hierarchy. Getting in to the upper echelon was a long 

tough climb for an ambitious gang member; the shortcut was to assault or kill a police 

officer, or a member of an officer's family. He took the shortcut and murdered my 

daughter. He drove her to an alley where he shot her in the back of her head, execution 

style, and then emptied the revolver in her back as she laid on the ground. He knew 

who she was because they had attended the same school, and he knew I was a police 
29 

officer Within a few months after the murder he was in custody and a few months 

thereafter the trial began. 

During the course of the trial, my wife and I were not allowed in the courtroom for any of 

the testimony. We were relegated to sitting on a bench in the hallway while the 

defendant's family and friends were seated in the courtroom. We had to endure the 

sneers and jeers each time they walked past us in the hallway. There are still 

jurisdictions within these United States where victims of crime wait in hallways, back 

rooms and outside the courthouses because they are not welcomed by our criminal 

justice system. Over one third of these United States have not amended their 

constitutions in order to provide victims in their state the right to be present at court 

proceedings. These states don't see the need for victims to have the right to be heard, 

or the right to be treated with fairness and dignity. Over one third of the states still treat 

crime victims as second class citizens who are not deserving of constitutional 

protection. 

The murderer of my daughter was tried for First Degree murder and that made the 

death penalty an option. Eleven jurors voted for first degree and one juror voted "not 

guilty". As we prepared for the second trial the defendant pled guilty to second degree 

murder and that allowed him to avoid facing the death penalty. I was not present for the 

plea, nor was I present at the defendant's sentencing, nor was I allowed to make an 

impact statement. These events were important to me and my family and I know these 

events are important to the majority of America's crime victims. Every crime victim in 

the United States should be guaranteed the right to be present, the right to be treated 

with dignity and respect, and the right to be heard as basic rights under the Constitution. 

My experience as a crime victim in the criminal justice system is not unique and it is 

experienced by tens of thousands of crime victims across America. Like most crime 

victims, I tell my story not for sympathy or pity; I tell my story to let others know I speak 

from experience when I say the system needs a fix. 

Seventeen states still do not recognize victims as having a constitutional right to be 

present at court proceedings, or the constitutional right to be treated with fairness, 

respect, and dignity. The Hawaii Legislature, while passing it's constitutional 

amendment in February of this year, put it so eloquently when they stated victims "rights 

should be protected in a manner no less vigorous than those of the accused". 

Arkansas, Delaware, Georgia, Iowa, Kentucky, Maine, Massachusetts, Minnesota, 

New Hampshire, Nevada, North Dakota, New York, Pennsylvania, Rhode Island, 

2 
30 

South Dakota, Vermont, and Wyoming have not taken any steps to give constitutional 

protection to the residents of their states. But, I am extremely optimistic that this 

committee will do its part to ensure that Americans who are, or become, victims of crime 

are protected by the U. S. Constitution in all states. I am optimistic because I have 

looked at your individual track records and it is clear to me that you will take a stand for 

those of us who have been victimized by crime. 

Two days after the September 11, 2001 terrorist attack I was confirmed by the Senate 

as the Director of the Office for Victims of crime and served in that capacity until 

January 2009. During my first days as Director, I was completely immersed in the 

nuances of working with the many states that had victims and next of kin from the 

terrorist attack. Each state had different variations in protocol for working with victims 

and next of kin and those variations still exist. Mass victimization events such as 9/11 

and the shootings at Virginia Tech, Northern Illinois University, Delaware State 

University, and the Boston Marathon that involve victims from multiple states highlight 

the need for a U.S. Constitutional Amendment. 

There are literally tens of thousands of individuals who are victimized outside their state 

of residence. With the expanding use of the internet, including social media, there are 

no geographic boundaries. Child sexual predators reach across state lines in search 

of their victims. Rapist and pedophiles use social media to reach across state lines to 

find their victims, and the pool for identity theft victims is nationwide. Our best hope for 

protecting the rights of all victims of crime is a constitutional amendment; and, I am very 

optimistic that the Bill will move out of this committee. My optimism is based on the fact 

that members of this committee have steadfastly supported rights for women, rights for 

children and rights for minorities. So I am optimistic that this committee will support 

rights for victims. This constitutional amendment would be the capstone for the 

individuals and groups you have fought so hard to protect. This Amendment is for the 

people who do not have the power, the people who do not have the funds, the people 

who do not have the will, and the people who do not have the wherewithal to individually 

fight for their rights 

President Reagan's Task Force on Victims of Crime submitted its final report in 

December of 1982. The Task Force stated: 
31 

Mr. FRANKS. Thank you, Mr. Gillis. 

I would now recognize Professor Mosteller for 5 minutes. 

TESTIMONY OF ROBERT P. MOSTELLER, PROFESSOR, 

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW 

Mr. MOSTELLER. Chairman Franks and Members of the Subcommittee, thank you for this opportunity to testify. I urge you not 

to adopt H.J. Res. 40. Victims of crime deserve society’s support. 
32 

My opposition is only to amending the Constitution with unnecessary or harmful provisions. 

We have amended the Constitution very rarely and should do so 

only for compelling reasons, which are not present. Indeed, there 

is a mismatch between the legitimate goals of the VRA and when 

a constitutional amendment is needed. 

The VRA has three main goals. The first is participatory rights 

such as notice of hearings. This goal is broadly embraced and protected through states’ constitutions and legislation. When not fully 

enforced, it is because of lack of resources and inertia. These provisions are not trumped by defendants’ rights. Constitutionalizing 

them does not accomplish full enforcement. 

The second, providing support, has largely disappeared from 

later generations of the VRA. Earlier versions provided victims the 

affirmative right to be protected, for instance, but not the VRA. 

Damage awards against the government have been eliminated. 

Constitutionalizing is either a non-issue or unprecedented. 

The third is damage to defendants’ rights. Of the three purposes, 

only when a Bill of Right guarantee is denied by a victim’s right 

is a constitutional provision required. The Crime Victims’ Rights 

Act recognizes a provision of the VRA that can deny defendants’ 

rights. Instead of an unequivocal right to presence, it authorizes 

exclusion of victims who were witnesses if the court determines 

their testimony would be materially altered. The infamous cases of 

Abner Louima and Rodney King show the danger of unequivocal 

presence. As I clearly stated in my written testimony, but for the 

clear medical evidence and the videotape, Louima and King were 

on their way to being charged with assaulting police officers. The 

true perpetrators would have been beneficiaries of the VRA. 

Imagine the four officers who beat King having the constitutional 

right to be present to coordinate their lies. No exception is recognized even when the alleged victims provide the only evidence that 

a defendant is guilty. Louima, King, hundreds of DNA exonerations, and the Duke lacrosse case demonstrate an essential problem 

with the amendment. We know at the beginning of the case the 

identity of the accused because that status is directly the result of 

being charged. However, we do not know for sure who is the victim, 

and more frequently whether this defendant is responsible. The effect of the amendment is to write into the Constitution the error 

of some in the Duke lacrosse case, rushing to judgment. The language in the preamble, the rights of a crime victim being capable 

of protection without denying constitutional rights of the accused, 

does not eliminate the problem. It has three plausible interpretations. 

First, it may simply declare the drafters’ intent that no conflict 

exists between these two rights. That doesn’t eliminate the damage; it authorizes it. 

Second, it can be read that when conflicting, the rights of the victim and the defendant will be balanced. Balance here means diminished, another description of denied. 

The third can be read that whenever a conflict is found between 

the two sets of rights, defendant’s constitutional rights will prevail. 

Only this interpretation eliminates the potential damage, and it 

should be added to the provision. 
33 

I note two practical problems. First, the definition of the VRA is 

extraordinarily broad with respect to ‘‘victim.’’ It draws no distinction between felonies and misdemeanors or between crimes of violence and crimes that harm property. In the Federal system, misdemeanors play only a minor role. But in states, prosecutors’ offices 

must handle a huge volume, and courts as well, with incredible 

speed. The North Carolina Victims’ Rights Act limits covered 

crimes among low-grade felonies and misdemeanors, and in misdemeanors it covers only domestic violence. This Federal amendment obliterates those fine distinctions. It would add cost and 

harm efficiency to over-worked and under-funded state criminal 

justice systems without offsetting benefits. 

Second, crime victims are given an unqualified right to restitution. This is not a right to an order of restitution from the convicted offender in an earlier version. It guarantees restitution and 

places no limit on the entity subject to paying restitution. A broad 

definition of ‘‘victim’’ and an unlimited restitution right would have 

serious consequences. Let me give you one example. 

In North Carolina, many traffic offenses, such as speeding, are 

misdemeanors. A simple traffic offense now with speeding involved 

would become a covered offense with mandatory restitution. 

In sum, the VRA would harm cost-effectiveness without materially increasing participatory rights and victim support, and it 

would write a rush to judgment into the Constitution. 

[The prepared statement of Mr. Mosteller follows:] 
34 

STATEMENT OF PROFESSOR ROBERT P. MOSTELLER ON H. J. RES. 

40 BEFORE THE HOUSE SUBCOMl\HTTEE ON THE CONSTITUTION, 

APRIL 25, 2013 

I wish to thank Chairman Franks and the members of the Subcommittee on the 

Constitution for this opportunity to testify on House Joint Resolution 40. I am here to urge that 

this Subcommittee not adopt the resolution. 

The subject of this hearing is extremely important. It is about victims of crime, who 

deserve society's support. T have been involved in the debate over proposed federal Victims' 

Rights Amendments for over tlfteen years. T have tried to make clear throughout that my 

opposition is to adding unnecessary and damaging provisions as an amendment to the United 

States Constitution, not to providing support for and giving respect to victims. 

The Mismatch between the Need for Constitutional Amendment and Legitimate VRA 

Concerns 

We have amended the Constitution of the United States only very rarely in over 220 

years as a nation. It should only be done for compelling reasons. There are no compelling 

reasons to adopt the proposed Victims' Rights Amendment (VRA). Indeed, there is almost an 

exact mismatch between the legitimate goals of the amendment and when a federal constitutional 

amendment is needed. 

I have written a number of articles about proposals for a VRAI The provisions have 

varied in different versions, but they have three main goals. First, some of the provisions 

establish Participatory Rights, such as notice of hearings. Second, provisions may provide 

services and aid to victims from government, such as protecting victims from violence and 

providing financial assistance (Providing Support). Third, some provisions have the effect of 

damaging defendants' rights (Defendant Damage). 

While at one time they were not, the first set of provisions-Participatory Rights-are 

broadly embraced and protected through state constitutions and legislation. Legislation and 

I Robert P. Mosteller & H. Jefferson Powell, With Disdain ii)r the ConstitutIOnal Craft· The 

Proposed Victims' Rights Amendment, 78 N.C. L. REv. 371 (2000): Robert P. Mosteller, The 

Unnecessary Victims' Rights Amendment, 1999 UTAH L. REv. 443: Robert P. Mosteller, Victims' Rights 

and the Constitution: MOVing/rom Guaranteeing Participatory flights to Henejiting the Prosecution, 29 

ST. MARY'S L.J. 1053 (1998): Robert P. Mosteller, Victims' Righls and the United Siaies Conslilution: 

An Effort to Recast the Battle in Criminal Litigation. 85 GEO. L.J. 1691 (1997). 

These articles are attached. 

-1-
35 

resources are principally what are needed to afford these rights. The rights to notice of hearings 

aren't "trumped" by defendant's rights. They may not be fully enforced, but that is through 

ineptitude, lack of resources, or difficulty of accomplishing the task. Constitutionalizing the 

right does not solve any problems with full enjoyment and enforcement of these provisions. 

The second set of provisions-Providing Support-has largely disappeared from later 

generation versions of the VRA. Earlier versions and current federal legislation gave victims the 

right to be protected2 Later versions of the VRA focus the right toward the defendant's release 

rather than the government's b'Uarantee of safety, providing that safety is to be given 

consideration. Damage awards against the government have been eliminated from the VRA. 

The one potentially problematic provision of the VRA, which runs counter to this trend and will 

be discussed later, is the apparently extraordinarily broad guarantee of restitution. 

Constitutionalizing these right is a non-issue. 

The third and quite controversial set of effects is those that damage defendant's rights. 

Indeed, while it is implicitly part of the language of the victims' rights movement of balancing 

the scales, it is generally disavowed by many proponents of the VRA. However, of the three 

purposes of victim rights provisions-Participatory Rights, Providing Support, and Defendant 

Damage-only provisions that damage defendants' rights require a federal constitutional 

amendment. Only when a due process right or a specific right in the Bill of Rights is infringed 

by a right given to victims is a constitutional right for victims necessary. If no effect to damage 

defendants' rights is anticipated, there is no need for a constitutional amendment. 

What is an example of a provision that denies defendant's rights, for example, to a fair 

trial? The Crime Victims' Rights Act (CVRA) implicitly recognizes one of these in the right not 

to be excluded from trial. It modifies that right by recognizing that victims who are witnesses 

can be excluded if their testimony might be materially altered. 3 The danger of damage is real, 

and serious damage could be done by the unequivocal guarantee of the proposed VRA. 

Who is a Victim? 

The infamous police brutality cases of Abner Louima in New York and Rodney King in 

Los Angeles provide examples of the problematic nature of giving special trial rights to victims. 

But for medical evidence of the unspeakable acts done to Louima while he was in the police 

station and the videotape shot by a neighbor of the beating administered by the police to King, 

both Louima and King were on their way to being charged with assault on police officers. Tn this 

prosecution, the true perpetrators would have been labeled as victims of that crime and would 

'Mosteller, 29 St. Mary's L. Rev. at 1056 (describing 1995 proposed amendment): 18 U.S.C. § 

3771 (a)(l) 

, 18 U.S.c. § 3771(a)(3) 

-2-
36 

have been beneficiaries of this constitutional amendment 4 Imagine four otllcers who beat King 

having the constitutional right to be present during the testimony of each other as they made 

certain that all the details of their bogus story of King's attack and their necessary reaction 

coincided. The brilliance of the sequestration rule in evidence as recognized by ancient writers 

and evidence scholar Wigmore is its simplicity and its benefit in catching liars, particularly 

catching them in the small details of their fabrications.' The Victims' Rights Amendment 

provides no exception for presence even in highly contested cases where the alleged victims are 

effectively the only evidence that the defendant is guilty. It potentially obliterates this important 

protection to a fair trial. 

The Abner Louima and Rodney King cases, hundreds of DNA exonerations, and a case 1 

saw tlrsthand in North Carolina-the Duke Lacrosse case6

-demonstrate a major problem with 

the amendment We know conclusively at the beginning of a case when charges are brought 

who is the accused. That is a legal status in the process. However, we do not know at that point 

who is a victim of a crime and more frequently whether the victim was harmed by the defendant 

or someone not yet apprehended. The effect of the amendment is to write into the Constitution 

the error that critics accused some in the Duke University community of doing - rushing to 

judgment Simply because of a charging decision, the VRA allocates rights potentially affecting 

the outcome of the defendant's trial, and it can be wrong. 

Talk with anyone now in the Duke University community of giving rights that might 

affect a trial's outcome to the victim in the case and you are likely to be interrupted mid-sentence 

with the correction that the accuser was not a victim. False claims are rare. DNA exonerations 

tell us, however, that mistaken charges are not nearly as rare as we had hoped. Victims deserve 

support, respect, and assistance. However, in deciding whether the defendant is b'llilty of a crime 

against the victim, nothing should be done that rushes the judgment and potentially alters the 

fairness and accuracy of the trial. 

The Duke Lacrosse case illustrates another area where fairness can be atl'ected by the 

VRA The prosecution and the prosecutor were undone by exculpatory DNA contained within 

" Mosteller. 1999 Utah L. Rev. at 466-67. 

, See 6 WIGMORE, EVIDENCE § 1837 (Chadbourn rev. 1976) (tracing the origin of witness 

sequestration rule to the Book of Susanna in the Apocrypha, which recounts Susanna's vindication when 

falsely accused of adultery through Daniel's insistence on questioning her accusers separately and thereby 

revealing their fabrication). 

G Robert P. Mosteller, Fxcuipatory Fvidence, Fthic,\'. and the Road to the Disbarment of Mike 

Nifong: 'l'he Critical Importance of Full Open-hie f)iscoveIY, 15 Gl':O. MASON L. Rl':v. 257 (2008); 

Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Idenlificalions: A Fundamenlal 

Failure to 'Do Justice, " 76 FORDHAM L REv. 1337 (2007) 

-3-
37 

discovery material. It took months and numerous motions by superb defense counsel to finally 

force this information from the prosecutor, who appeared to have delayed the discovery process 

as long as possible. Under the VRA, the victim has a right to a trial free of unreasonable delay. 

Delay is not always the exclusive fault of the defendant, but under the VRA, the victim is to be 

protected against such delay regardless of who caused it. The time needed for preparation of an 

etfective defense may be sacriticed if the victim's interest in a speedy resolution of the case 

forces proceedings forward. 

The laflb'llage in the preamble, "The rights of a crime victim to fairness, respect, and 

dignity, being capable of protection without denying the constitutional rights of the accused. 

does not eliminate the problem of damage to defendant rights It has at least three plausible 

meanings. First, it can be read as a declaration of the drafters' intent that no contlict exists 

between victims' rights and defendants' rights as the amendment has been drafted. Second, it 

can be read that when conflicting the rights of both victims and defendants will be balanced or 

"harmonized." Third, it can be read that whenever a conflict is found between the two sets of 

rights, the constitutional rights of the defendant will prevail. 

While contlict at the level of infringing on defendant's right may be rare, conflicts and 

damage can occur as illustrated by the Louima and King cases. So the first interpretation may be 

used and is sometime arb'lled, but it is erroneous. Indeed, rather than eliminating the potential for 

damage to defendants' rights, it authorizes that damage. The second interpretation of balancing 

defendant's rights against victim's rights is simply an indirect way to say that defendant rights 

are been reduced and thereby denied. The second interpretation thus also authorizes rather than 

eliminates damage to defendants' rights. 

Only the third interpretation eliminates the potential that the VRA will diminish the 

protections currently afforded to defendants. lfthe intent is not to undermine defendant's rights 

clear language that defendant's rights will prevail when conflict is found must be added to the 

text. Instead, signitlcantly different and inadequate language has been used. 

The Extraordinarily Broad Definition of Victim and Crime 

The proposed VRA defines victim as including "any person against whom the criminal 

offense is committed or who is directly and proximately harmed by the commission of an act, 

which, if committed by a competent adult, would constitute a crime.'" This provision draws no 

distinction between felonies and misdemeanors and no distinction between crimes of violence 

and crimes that do harm to property. Earlier versions had a far more constrained definition of 

victims generally and specifically limited coverage to crimes ofviolence8 

7 R.J. Res. 40 (2013) 

S SJ. Res. 3 (1999). 

-4-
38 

A detlnition of this breadth in a federal constitutional provision is likely to have serious 

consequences when applied across a nation. In the federal system, misdemeanors playa minor 

role. In states and localities, the number of misdemeanors is enormous and the volume that 

prosecutors' offices and courts must handle with dispatch is daunting In some jurisdictions, 

such as North Carolina, many traffic offenses are misdemeanors'! In defining victim for 

purposes of the North Carolina Crime Victims' Rights Act,lO the statute is very precise and 

carefully limits the crimes in the lower categories of felonies and misdemeanors are covered. 

Indeed, for misdemeanors, the focus is primarily on domestic violence. The VRA would 

obliterate these careful definitions. 

1 suggest that writing the extraordinarily broad definition of victim in the VRA into the 

federal Constitution would add greatly to administrative cost and harm etliciency of an overworked and under-funded state criminal justice system without off-setting benefits. Criminal 

justice systems are far from uniform across the country. Features that work well in the much 

more generously funded, hierarchical, and big-case oriented federal system will not necessarily 

work in the states. 

The opposite is sometimes true as well with provisions that work well in state systems 

but would cause ditliculties in federal prosecutions. As James Orenstein testitled before this 

Committee in 2002 on a different version of the VRA, notice provisions, and rights to be present 

and to be heard may have dangerous or unintended consequences when federal prosecutors 

handle cases involving organized crime and prison gangs in which perpetrators and masterminds, 

witnesses, and victims are intertwined." The careful exceptions available through legislation are 

not possible for broad constitutional language that must apply throughout all criminal justice 

systems. 

The Broad Right to Restitution 

Without qualification, the VRA gives all crime victims, under the extraordinarily broad 

definition of victims discussed above, the right "to restitution." This is not the carefully defined 

right of earlier versions of the VRA to "an order of restitution from the convicted offender.,,12 

The provision appears to b'Uarantee restitution, not just an order of restitution, and it does not 

o For example, reckless driving and speeding more than fifteen miles above the speed limit arc 

Class 2 misdemeanors. See N.C. GEN. STAT. §§ 20-140(d) (reckless driving); 20-141(j1) (speeding). 

10 N.C. GEN. STAT. § ISA-830 (a)(7). Section ISA-830 (a)(7)(g) states that the act applies to a 

specified group of misdemeanors "when committed between person who have a personal relationship," 

giving reference to the domestic violence statutory detinition in N.C. Gl·:N. STAT. § 508-1(b). 

11 Hearing on HJ. Res. 91 (2002), at pp. 42-4S. 

12 SJ. Res. 6 (1997). 

-5-
39 

limit the party or entities subject to paying or funding restitution to a convicted defendant. 

Moreover, it does not use narrow wording such as that contained in the North Carolina 

Constitutional provision of the right "as prescribed by law to receive restitution,,13 or similar 

wording of federal legislation (CYRA) of the "right to full and timely restitution as provided in 

law." 14 The YRA mandates restitution even if not contemplated under existing statutes 

This provision would appear to force upon states the requirement to develop restitution 

litigation systems whenever either personal or economic harm is done to a person as the result of 

a criminal offense. As noted earlier, in North Carolina many traffic offenses are misdemeanors. 

These include some speeding violations and reckless driving. Apparently as a matter of federal 

constitutional mandate, traffic court judges in North Carolina, when the speeding or reckless 

driving offense involves damage to person or property, would now be required to develop and 

enter orders of restitution in all these cases. These injuries to person and property are presently 

handled as actions for damages in the civil system, which the criminal justice system must now 

replicate whenever harm results from criminal conduct regardless of the judgment of the state 

legislature regarding the appropriate way to compensate those suffering injury or economic 

hann. 

The VRA's Potential Damage to the Criminal Justice System 

I believe that the enactment of the VRA will have damaging unintended consequences to 

the effective operation of our criminal justice systems and will be fmancially costly, without 

materially increasing participatory rights and support for victims of crime. Moreover, it can 

undercut bedrock, enduring protections in the criminal justice system. 

William Blackstone stated that "[ilt is better that ten guilty persons escape than that one 

innocent suffer. ,,15 In the criminal litigation where a powerful government is pitted against an 

individual defendant with life and liberty at stake, the Bill of Rights provides protections to the 

accused that help guard against wrongful convictions. After the hundreds of DNA exonerations, 

it is absolutely clear that these protections have critical importance in our imperfect system of 

determining b'Uilt. The YRA can effectively place a new weight on the scales of justice on the 

side of conviction and write into the Constitution a "rush to judgment" based on a designation by 

the charging authority. Blackstone's conception has stood the test of time and should endure 

II N.C. CONST. art. I, § 37. 

1·18 U.S.c. § 377 1 (a)(6) 

15 4 WILLIAM BLACKSTONE, COMMENTARIES' 358. 

-6-
40 

Mr. FRANKS. Thank you, Professor. 

Now we will recognize Professor Beloof for 5 minutes. 

TESTIMONY OF DOUGLAS E. BELOOF, 

LEWIS & CLARK LAW SCHOOL 

Mr. BELOOF. Thank you, Chairman Franks, honorable Ranking 

Member. Thank you for the opportunity to speak today. I am here 

to support the Crime Victims’ Rights Amendment to the United 

States Constitution, House Joint Resolution 40. For my framework, 

I adopt the framework of Professor Laurence Tribe, distinguished 

professor of constitutional law at Harvard, also a noted Democrat. 

First, for a constitutional amendment to be appropriate, the people must widely agree that victims’ rights deserve serious and permanent respect. Victims’ state constitutional rights exist in more 

than two-thirds of the states, and I only need to reference the 

Chair’s introductory remarks to reveal how accepted they are 

across the country. Clearly, there is wide agreement that victims’ 

rights deserve serious and permanent respect. 

Second, the right is one that is insufficiently protected under existing law and cannot be adequately protected through political action such as legislation. Fundamentally, the objective of victims’ 

rights is to include victims’ interests in the culture of the criminal 

justice system. Experience has shown that to change the inertia of 

the system, a constitutional amendment is needed. While many 

laws providing for rights exist, enforcement of those rights varies 

widely, and too frequently they are honored in the breach. 

In my written testimony, I provide examples of these problems 

under Federal legislation. Professor Paul Cassell and former Federal Judge Paul Cassell has submitted written testimony that also 

provides examples of how victims’ rights under statute have been 

honored in the breach. The point of the examples is not to deride 

the Justice Department or the courts. Contrary to these examples, 

there are many fine Federal prosecutors who routinely comply with 

victims’ rights, and both the Clinton and Bush-era Justice Departments supported a crime victim’s rights amendment. Rather, these 

examples reveal how statutory rights can be ignored with impunity. Moreover, the examples reveal that under the CVRA, often no 

remedy is provided by the courts. 

On the other hand, defendants’ constitutional rights are far less 

likely to be ignored simply because the rights are constitutional. 

Prosecutors universally respect defendants’ rights precisely because 

defendants’ rights are constitutional rights safeguarded by the Supreme Court. The same will occur when victims’ rights are in the 

Constitution. 

Next, a right must be one whose inclusion in the U.S. Constitution would not distort or endanger basic principles of the separation of powers among the Federal branches or the division of power 

between national and state governments. Separation of powers is, 

of course, enhanced by the amendment as the Bill of Rights is historically the place for important rights. 

While Federalism is an important value, this amendment poses 

no threat to it. The Supreme Court dictates the baseline of defendants’ rights for all the states as a Federal matter. Individual rights 

in criminal procedure is already Federal and has been for decades. 
41 

There is no hint, even in dicta, even by the most ardent of Federalists on the Supreme Court, that the Supreme Court will ever 

change this reality. Consistent with this constitutional reality, victims’ rights are appropriately placed in the Federal Constitution 

because the Federal Constitution is the baseline of individual 

rights in criminal procedure in this country. Thus, the ongoing exclusion of victims’ rights from the Constitution actually reduces the 

importance of victims’ rights. Moreover, including victims’ rights in 

the Constitution works no new damage to Federalism principles. 

Without a constitutional amendment, there is no national baseline 

for victims’ rights. 

Next, the right would be judicially enforceable without creating 

open-ended or otherwise acceptable funding obligations. One of the 

weakest arguments made against victims’ rights has been that the 

administrative sky would fall. This argument has been made over 

and over, over the 35 years that victims have been trying to secure 

meaningful rights in this Nation. There is enough experience with 

victims’ rights now, both in the states and under the Crime Victims’ Rights Amendment federally, to know that the sky will not 

fall in the administration of justice. 

In the 10 years since the passage of the Crime Victims’ Rights 

Act, for example, the sky has remained firmly in its heavens. A review of the case law in that 10-year period reveals nothing that 

could credibly be described as overwhelming the administration of 

justice. Quite the contrary, the number of appellate and district 

court opinions is very small. To be sure, trial courts more frequently accommodate victims’ rights than appellate court, but 

there is no empirical evidence that the courts have been clogged by 

victims’ rights. 

Finally, no actual constitutional rights of the accused should be 

violated by the amendment. In terms of conflicts with defendants’ 

rights, in the 10 years of cases under the Crime Victims’ Rights 

Act, there has been no Federal appellate court case that has found 

a conflict with the defendants’ constitutional rights. In fact, the period of time Federal courts have had to find conflict is far greater 

than 10 years, yet no cases have found conflict with the defendants’ 

rights. 

As to accommodating the defendants’ rights, the bill says, ‘‘Victims’ rights, being capable of protection without violating the rights 

of the accused, shall not be denied or abridged by the United States 

or any state.’’ This language was provided by Professor Tribe. 

I believe that the only way to change an entrenched criminal justice process is for there to be a constitutional amendment. I urge 

you to favorably vote this bill out of Committee. Thank you, Mr. 

Chair. 

[The prepared statement of Mr. Beloof follows:] 
42 

TESTIMONY OF PROFESSOR DOUGLAS E BELOOF 

BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION AND CNTL JUSTICE OF 

THE UNITED STATES HOUSE OF REPRESENT A TNES 

APRIL 25,2013 

1 13th Congress, I't Session 

Honorable Chainnan Franks and Distinguished Members, 

Thank you for the opportunity to speak with you today. I am here to support H.J. Res 40, 

the Victims' Rights Amendment to the United States Constitution. 

This Amendment contains the values that everyone in this room agrees upon - that crime 

victims should be treated with dignity and respect in the criminal process. However, experience 

teaches that this can only happen for every victim, in every case, if crime victims have 

enforceable rights. In order for rights to be honored, victims need recourse to remedy. For, 

without enforceable rights, victims' rights are merely paper promises. And, this is the cruelest 

kind of promise, assuring victims they have rights, only for them to discover that they do not. 

This was the lesson of the Oklahoma City Bombing case, a case in which many victims could not 

ob serve the trial. 

After the bombing, an effort to pass a Victims' Rights Amendment occupied several 

years, culminating in the federal Crime Victims' Rights Act (CVRA), 18 USC. 3771. The 

experiment with the CVRA is a decade old. What has been learned strongly supports this 

renewed effort to provide crime victims' constitutional rights. Moreover, lessons learned from 

those early drafts of the amendment led to this version, which is much improved. 

1 concur with Professor Tribe's framework for determining when rights should be added 

to the Constitution Where there is "a needed recognition of a basic human right, where a) the 

right is one that people widely agree deserves serious and penn anent respect b) the right is one 

that is insufficiently protected under existing law, c) the right is one that cannot be adequately 

protected through purely political action such as state or federal legislation and/or regulation, d) 

the right is one whose inclusion in the U.S. Constitution would not distort or endanger basic 

principles of the separation of powers among the federal branches, or the division of power 

between the national and state governments, and e) the right would be judicially enforceable 

without creating open-ended or otherwise acceptable funding obligations." Statement of 

Professor Laurence H. Tribe, Harvard University Law School, in A Proposed Constitutional 

Amendment to Protect Victims of Crime: Hearings Before the Senate Judiciary Committee, 105"' 

Cong., ]" session (1997). To this list I would add f), that no actual constitutional rights of the 

accused would be violated. 

(A) THE PEOPLE WIDELY AGREE THAT VICTIMS' RIGHTS DESERVE SERIOUS 

AND PERMANENT RESPECT. 

Victims' state constitutional rights exist in more than two-thirds of the states. When 

referred to the people, these amendments are voted in by overwhelming margins. Passage rates 

are typically in the 75 to 90 percent range. Douglas E Beloof, The Third Wave of Victims' 

Rights: Standing, Remedy and Review, 2005 BY.U L. Rev. 255, 341 n. 421 (collecting 

Page 1 oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
43 

passage percentages in individual states). 

At the federal level, the Crime Victims' Rights Act of 2008, 18 USc. 3771, initially 

passed in the Senate by a vote of 96 to I Tn the House the bill was somewhat moditled and 

passed by a 393 to 14 margin in the House. The bill then passed the Senate by unanimous 

consent and the President signed it into law. 

Outside of Congress, support for the Amendment is strongly bipartisan. Forty nine 

governors, 50 state attorney generals and the National District Attorneys Association all support 

it. These organizations and elected ofi'icials come from both parties and hold views on other 

issues across the political spectrum. The organizations that support the Amendment, for example 

Mothers Against Drunk Driving and Parents of Murdered Children, are nonpartisan. Presidents 

Clinton and Bush, as well as their Attorneys General supported an amendment. In my home state 

of Oregon it was a Democrat Attorney General and a Democrat majority in both Houses that 

made Oregon state's constitutional victims' rights enforceable. Harvard Professor Laurence 

Tribe, who represented Al Gore in Bush v. Gore before the Supreme Court, has endorsed and 

participated in prior drafts, some of his lafib'llage carries over into the current draft. 

Clearly, there is wide agreement that victims' rights deserve serious and permanent 

respect. 

(B) THE RIGHT IS ONE THAT IS INSUFFICIENTLY PROTECTED UNDER 

EXISTING LAW. AND, C) THE RIGHT IS ONE THAT CANNOT BE ADEQUATELY 

PROTECTED THROUGH PURELY POLITICAL ACTION SUCH AS STATE OR FEDERAL 

LEGISLATION. 

Fundamentally, the objective of victims' rights is to include victim interests in the culture 

of the criminal justice system. Experience has shown that to change the inertia of the system, a 

constitutional amendment is needed. While many laws providing for rights exist, enforcement of 

the rights varies widely and too frequently they are honored in the breach. 

A few case examples, from both the Bush and Obama administrations, under the Crime 

Victims' Rights Act, prove the point: 

(1) In a criminal prosecution of British Petroleum for negligent homicide at an oil plant in 

Texas that killed 15 workers and injured more than 170 others, the Assistant U.S. Attorneys 

violated the surviving victims' rights by intentionally concealing a lenient plea agreement from 

the victims 1 The Assistant U.S. Attorneys, in secrecy from the victims went to the trial court to 

obtain an order that the victims would be denied their rights under the Act. The federal court of 

Appeals ruled that the Assistant U.S. Attorneys had acted illegally and admonished it stating, 

"the government should have fashioned a reasonable way to infonn the victims of the likelihood 

of criminal charges and to ascertain the victims' views on the possible details of a plea bargain." 

Nevertheless, the courts did not remedy the violation. 

(2) In the Antrobus case, involving the illegal sale of a handgun that resulted in the murder of 

5 people and serious injury of four others in a shopping mall in Utah, the Assistant U.S. 

1 In re Dean, 527 F.3d 391 (5th Cir. 2008). 

Page 2 oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
44 

Attorneys refused to reveal to the victims the statement made by the killer to the gun seller when 

the gun was purchased that he intended to commit a robbery. This statement likely would have 

established the murdered girl's family as victims under the act and allowed them to speak at 

sentencing. The victims were denied victim status by the courts and not allowed to spealc at 

sentencing2 Again, the courts provided no relief. 

(3) In the Jane Does v. Uniled Siaies case, Assistant U.S. Attorneys took the position that it 

had no obligation to tell girls who were victims of a sexual assault by billionaire Jeffrey Epstein 

that it was reaching a secret "non-prosecution" agreement with Epstein as part of a lenient plea 

arrangement. The U.S. Attorneys remarkably took the position that victims had no right under 

the CVRA to be treated fairly or to be told that the charges were going to be bargained away - all 

because the Assistant U. S. Attorneys had made the decision to reach a secret deal with the sex 

offender before formally filing charges against him. The federal district court hearing the matter 

curtly dismissed the Department's arb'1lment, explaining that "the government's interpretation 

ignores the additionallanb'1lage throughout the statute that clearly contemplates pre-charge 

protections. ,,] Either directly or indirectly, two federal circuit courts have also rejected 

the position, that the assistant U.S Attorneys can strip crime victims of their rights by the 

simple expedient of not obtaining a grand jury indictment.-l 

(4) In a case involving victims of mortgage fraud, Assistant U. S. Attorneys took the position 

that these citizens were not victims under the Crime Victims' Rights Act.' The Eleventh Circuit 

criticized the Assistant U.S Attorneys, opining that, "Although the [victims'] petition does not 

seek relief against the Assistant United States Attorney prosecuting the case, we expect that 

attorney to be mindful of the obligations imposed by" the CVRA 

(5) In the botched "Fast and Furious" operation that led to the slaying of Border Patrol Agent 

Brian Terry, the Assistant US Attorneys filed pleadings actually arguing that Terry was not a 

"victim" of illegal guns sales that lead to his murder. The Assistant U.S. Attorneys also refused 

to provide the Terry family with any discovery about the circumstances surrounding the murder 

so that they could argue to the court that they deserved rights under the CVRA. Ultimately, the 

2 See Cassell, Paul G. Protecting Crime Victims in Federal Appellate Courts: The Need to 

Broadly Construe the Crime Victims' Rights Act's Mandamus Provision." 87 Denver Law 

Review 599 (2010). Paul Cassell is a Law Professor and fonner federal judge). Whether the 

Antrobus family fits under the CVRA definition of "victim" depends on whether the harm was 

the direct and proximate cause of the conduct. 

] .lane Does #1 and #21'. United States, -F.Supp.2d-, 2011 WL 4793213 at *4 (S.D. Fla. 

Sept. 26, 20 II). 

-I In re Dean, 527 F.3d 391 (5th Cir 2008); See In re Stewart, 552 F3d. 1285 (2008)(that 

rights attach before charging is an implicit prerequisite of the ruling). 

5 In re Stewart, 552 F.3d 1285 (2008). 

Page 3 oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
45 

Department reassigned the case from the Di strict of Arizona to another prosecutor, and the Terry 

family was forced to settle its CVRA case for a promise from the Justice Department that it 

"recommend" to the Court that the Terry family receive rights under the CVRA as a matter of 

discretion 6 

The point of these examples is not to deride the Justice Department. Contrary to these 

examples, there are many tine federal prosecutors who routinely comply with victims' rights. 

And, both the Clinton and Bush era Justice Departments supported a crime victims' rights 

amendment. Rather, these examples reveal how statutory rights can be ignored with impunity. 

Moreover, these examples reveal that under the CVRA often no remedy is provided by the 

courts. 

On the other hand, defendants' constitutional rights are far less likely to be ignored, 

simply because the rights are constitutional. Prosecutors universally respect defendants' rights 

precisely because defendants' rights are constitutional rights safeguarded by the Supreme Court. 

The same will occur when victims' rights are in the Constitution. 

D) THE RIGHT IS ONE WHOSE INCLUSION IN THE US CONSTITUTION 

WOULD NOT DISTORT OR ENDANGER BASIC PRINCIPLES OF THE SEPARATION OF 

POWERS AMONG THE FEDERAL BRANCHES, OR THE DIVISION OF POWER 

BETWEEN THE NATIONAL AND STATE GOVERNMENTS. 

Separation of powers is enhanced by the Amendment as the Bill of Rights is historically 

the place for important rights. 

While federalism is an important value, this Amendment poses no threat to it. The 

Supreme Court dictates the baseline of defendant's rights for all the states. Individual rights in 

criminal procedure are already federal and have been for decades. There is no hint, even in dicta, 

that the Supreme Court will ever change this reality. Consistent with this constitutional reality, 

victims' rights are appropriately placed in the federal constitution because the federal constitution 

is the baseline of individual rights in criminal procedure. 

Thus, the ongoing exclusion of victims' rights from the constitution reduces the 

importance ofvictims' rights. Moreover, including victims rights' in the constitution works no 

new damage to federalist principles. See, Paul G Cassell, Barbarians at the Gates? A Reply to 

the Critics of the Victims Rights Amendment, 1999 Utah L. Rev 479,531 et seq. 

Without a constitutional amendment there is no national baseline for victims' rights. For 

example, in the recent Boston Marathon Bombing case, should the defendant recover to face 

charges, federal charges will provide victims' rights that are, at least, potentially enforceable. 

6 United States v. Avila, No 211-Cr-00126, doc. #394 (D. Ariz. Jan. 31, 2012). Whether 

the Terry family fits under the CVRA definition of "victim" depends on whether the harm was 

the direct and proximate cause of the conduct It clearly was, as ATF agent John Dodson testified 

at the House Committee on Oversight and Government reform, June 15, lOll "I had no question 

that the individuals we were watching were acting as straw purchasers and that the weapons they 

purchased would soon be trafficked to Mexico and locales along the western border, where they 

would be used in violent crime if we did not intervene. However we did not intervene." 

Page 4 oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
46 

However, under Massachusetts law, rights remain unenforceable on review in state courts. Such 

disparate treatment of crime victims, simply because of the venue in which a crime occurred, 

makes little sense. 

E) THE RIGHT WOULD BE JUDICIALLY ENFORCEABLE WITHOUT CREATING 

OPEN-ENDED OR OTHERWISE ACCEPTABLE FUNDING OBLIGATIONS." 

One of the weakest arguments made against victims' rights has been that the 

administrative sky would fall. Nothing could be further from the truth. There is enough 

experience with victims' rights now both in the states and under the CVRA to know the sky will 

not fall in the administration of justice around crime victims' rights. In the ten years since the 

passage of the CVRA, the sky has remained firmly in the heavens. A review of the case law in 

that ten year period reveals nothing that could credibly be described as overwhelming the 

administration of the criminal process. See, 26 ALR Fed 2d 451 (collecting cases under the 

CVRA). 

Quite the contrary. The number of federal appellate and district court opinions on the 

CVRA in ten years is miniscule. Id. The average number of reported appellate cases in each state 

is similarly small. Validity, Construction, and Application of State Constitutional or Statutory 

Victims' Bill of Rights, 91 A.L.R.5th 343 (collecting state cases). 

To be sure, it is the trial courts that more frequently accommodate victims' rights. 

However, there is no empirical evidence from courts, state or federal, that victims' rights have 

clogged the courts. Finally, states already have victims' rights, either constitutional or statutory, 

so much of the infrastructure already exists in the states to accommodate a federal constitutional 

right. 

F) NO ACTUAL CONSTITUTIONAL RIGHTS OF THE ACCUSED WOULD BE 

VIOLATED BY THE AMENDMENT. 

In terms of conflicts with defendants' rights, in the ten years of cases under the Crime 

Victims' Rights Act there has been no federal appellate court case that has found a conflict with 

the defendants' constitutional rights. In fact, the period of time federal appellate courts have had 

to find a conflict is far greater than I ° years. Many states had victims' rights as early as 1982. 

Yet, in all that time, no federal appellate court has held that any state victims' right violates 

defendants' United States Constitutional rights. 

The reason for this is straightforward, the CVRA was written carefully to avoid conflict 

with defendants' rights. The same is true of state constitutional rights for crime victims. 

Likewise, the Amendment before you has been carefully drafted to avoid conflict with a 

defendant's constitutional rights. In this regard the Amendment before you states, "Victims' 

rights, being capable of protection without violating the rights of the accused, shall not be denied 

or abridged by the United States or any state." H. J. Res. 40, pg 2 lines 3-4. 

Page 5 oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
47 

Mr. FRANKS. Thank you, Professor Beloof. 

Thank you all for your testimony. 

We will now proceed under the 5-minute rule with questions, and 

I will begin by recognizing myself for 5 minutes. 

Mr. Gillis, in addition to your personal testimony, I want you to 

know your personal testimony was very powerful to me. The presHuman Rights Watch, a well-respected NGO, has published a report on crime victims' rights in 

America noting the ability to secure defendants' rights while providing for victims' rights as 

well: 

"Many people have strong interests in the functioning of the criminal 

justice system: victims of crime, witnesses, those accused of committing crimes, 

and society at large, which requires the fair and etTective administration of justice. 

In recent decades, both internationally and inside the United States, there has been 

a growing demand that greater attention be paid to the interests and rights of 

victims of crime as well as to ensuring their access to justice. 

Unfortunately, the public debate on this topic too often casts the rights and 

interests of victims and defendants as a zero-sum game in which safeb'Uards for 

defendants' rights-such as the presumption of innocence and the right to a fair 

trial-come at the expense of victims, and improvements in the treatment of victims 

impinge on defendants' rights. While there can be tensions between the legitimate 

interests of victims and defendants, a criminal justice system based on human 

rights standards can safeguard the rights of both while advancing justice and the 

rule oflaw." Human Rights Watch, US. Policy and International Standards on the 

Rights and Interests of Crime Victims, 1 (2008). 

I agree with this assessment This amendment does safeguard the rights of both 

defendants and victims while advancing justice and the rule oflaw. I urge you to favorably vote 

this bill out of committee. 

Page (i oUi 

Testimony of l'rot"0ssor Dougla~ E Bdoof I April 25, 2013, 1131h Congr0ss, 1 ,t SC%iOll 

Bofordthe SublJonmlilLe<! on the Con~lilLllion and Civil JusLice, l11tll-nil.:d SInks House o[R<!presenLaLiv<!~ 
48 

ence of you and your wife here today is an inspiration, and I am 

sorry for your loss, and I am grateful that you have chosen to try 

to turn it into something that will help prevent others from dealing 

with the same kind of loss. 

Mr. GILLIS. Thank you. 

Mr. FRANKS. Can you describe real-life examples for existing 

crime victims’ statutes or state constitutional amendments that 

have failed to provide the protections that they promised to crime 

victims? 

Mr. GILLIS. I think I would have to refer to my case, which is 

still active. Although the defendant was sentenced to life in prison, 

he has filed numerous appeals, and just within the past year there 

was another appeal that has delayed his parole hearing. We have 

no idea what the appeal is about. We only know that we had a parole hearing and it has been offset, and we are scheduled to do another hearing. 

So this has occurred throughout the time that he has been sentenced. It has been a drag financially on both my family and other 

victims who have to attend these hearings. We are not notified 

when a hearing is going to occur. Whenever I am notified, we just 

have to pack up. We are notified for the parole hearing, but we are 

not notified when there are appeals, and we are not notified when 

any other legal actions take place. So it is a personal issue also, 

and it happens to many victims across the country. 

Mr. FRANKS. Yes, sir. Well, thank you. 

Mr. Montgomery, in your written testimony you state that, ‘‘Too 

often, the concern as to whether the rights of victims of crime 

should be given the protection of our Constitution has been premised on the false calculus that any rights accorded to a crime victim must necessarily result in fewer rights for a criminal defendant.’’ 

Why will the protection of victims’ rights not infringe on the 

rights of criminal defendants? 

Mr. MONTGOMERY. The very simple answer, Mr. Chairman, is 

that victims have the same interest in a just outcome as an accused does. At the end of a particular case, you want to make sure 

that you have the right person who committed the crime. You want 

to make sure that they are sentenced to a just sentence. You don’t 

want to have to come back and do that again. As Mr. Gillis just 

told the Committee and told the Chair, victims want to be done 

with a case and know that it was handled and the harm that was 

done has been addressed, and then allow them to move on with 

their lives as best they can. 

Additionally, I had to sit and listen with amusement to the 

speeding ticket restitution example. You don’t create a victim when 

you are speeding, unless it is yourself because of the fine you have 

to pay. Restitution is provided to a victim who has been harmed 

by a criminal offense. If someone hurts somebody as a result of 

speeding, they are usually charged with aggravated assault. But 

unfortunately, these are the kinds of examples that are offered, not 

from people who actually have experience in advocating in court 

and dealing with the balance between victim’s rights and a defendant’s rights that prove, day in and day out, with the 35,000 felonies 
49 

my jurisdiction deals with, 100,000 misdemeanors on average, we 

do it every day. 

Mr. FRANKS. Yes, sir. Thank you. 

Professor Mosteller, the right not to be excluded from public proceedings relating to the offense is a critical component of the Victims’ Rights Amendment. Mr. Gillis recounted that after a gang 

member murdered his daughter, he and his family were relegated 

to a bench in the hallway of the courtroom during the trial while 

the defendant’s family and friends were seated in the courtroom. 

Mr. Gillis and his family endured ‘‘sneers and jeers each time they 

walked past them.’’ 

Why should crime victims be barred from having a constitutional 

right to be present at a public trial? 

Mr. MOSTELLER. Crime victims should not be barred except in 

very, very, very rare cases. With respect to what the amendment 

declares, it has a right to be present with respect to the bail hearing—— 

Mr. NADLER. Can you turn on your mic, Professor? 

Mr. MOSTELLER. I’m sorry. It has a right to be present which affects public proceedings with respect to plea, sentencing, and release. With respect to release, no issue whatsoever. With respect to 

sentencing, other than capital cases, no issue whatsoever. With respect to plea, no issue whatsoever. The issues come when we are 

dealing with the trial in front of the jury, and it is a situation that 

only involves a problem if the victim is a witness. If there are multiple victims and they can be present during the time the testimony 

is being taken by one so that the other can hear, it suggests a problem with respect to the fairness of the trial. 

I am not inventing this problem by any means out of thin air. 

We have basically the right with respect to the statute that says 

the victim has a right to be present unless the judge finds that 

there is going to be a material effect on the testimony. Then the 

victim can be excluded. That is a statute that the United States 

Congress passed. So it recognized in writing, and it is one of the 

reasons there isn’t a problem with respect to the Crime Victims 

Act. That issue was the one that was taken out of the picture. 

With respect to sentencing in death penalty cases, Payne v. Tennessee overruled Booth v. Maryland, but it did not overrule Booth 

v. Maryland with respect to whether or not a victim has the right 

to issue a conclusion with respect to the sentence. This amendment 

may well change not only the right to be heard but what you can 

say. 

Mr. FRANKS. Thank you, sir. 

I now recognize the Ranking Member for questions. 

Mr. NADLER. Thank you, Mr. Chairman. 

Before I begin, I want to thank Mr. Gillis for his testimony. I 

think he expressed in the most eloquent way the devastating and 

lasting impact that crime, especially crimes of such unspeakable violence and cruelty, has on its victims. It is a reminder of how important it is for all participants in the criminal justice system, the 

courts, prosecutors, law enforcement, Congress and state legislatures, to ensure that the rights and needs of crime victims are both 

respected and addressed, and I hope that this hearing will help us 

understand how we can best improve these efforts. 
50 

Now, Professor Mosteller, other witnesses today have argued, in 

the language of the amendment, that the rights of a crime victim 

to fairness, respect and dignity, being capable of protection without 

denying constitutional rights of the accused, shall not be denied or 

abridged by the U.S. or any state. Do we need to worry about such 

conflicts between the rights of the accused and the rights conferred 

on victims in this amendment despite that language? And if so, 

could you give us some examples? 

Mr. MOSTELLER. Yes, we do. With respect to two of those rights, 

the right to respect and dignity, there is no conflict whatsoever. 

With respect to matters like notice, there is no effect whatsoever. 

But there is another word in it, and it is a general word, and it 

is ‘‘fairness.’’ Fairness can also mean due process. It says fairness, 

and then it says moreover, and it lists other rights. 

With respect to those other rights, I have spent some time with 

respect to the presence at the proceeding, the presence at the proceeding. In addition to that, the issue with respect to a speedy 

trial, a speedy trial for the victim, against undue delay. Most prosecutors, almost all prosecutors are trying to move it forward, but 

there are people who behave badly. Mike Nifong in the Duke lacrosse case behaved very badly. He delayed discovery. You have an 

argument. It is unreasonable delay. The constitutional amendment 

does not say unreasonable delay by the defendant. It says unreasonable delay and that can compromised by the prosecution as 

well. And I mentioned a third one—— 

Mr. NADLER. It could compromise the right of the accused to a 

fair trial is what you are saying? 

Mr. MOSTELLER. With respect to enough time to prepare testimony. You can say this will be limited and it will be rare, and I 

would acknowledge it. But you cannot say that there is no danger. 

Mr. NADLER. Thank you. Now, why would a court exclude a victim from a courtroom under certain circumstances? Well, you said 

if the victim is a witness, maybe multiple victims, to have them in 

the courtroom might give an opportunity to coordinate—alleged victims, because you could be wrong about who is a victim. In the 

Duke case, for instance, you said that had they all been present in 

the courtroom, they could have coordinated their testimony? 

Mr. MOSTELLER. Yes, and that would be the problem. And with 

respect to the normal situation in which a victim is not a witness, 

there should be no exclusion. 

Mr. NADLER. Well, could a victim act in such a way as to prejudice the jury other than that situation? 

Mr. MOSTELLER. Absolutely. 

Mr. NADLER. How so? 

Mr. MOSTELLER. By excessive emotional outbursts. That is a limitation upon the right even of the defendant to be present. A defendant can be excluded. So these are common-sense limitations. 

Mr. NADLER. Now, a defendant has a constitutional right to be 

present unless the judge chooses to exclude him because of his conduct. Under this amendment, would the judge have the discretion 

to exclude a victim or an alleged victim because of his conduct? 

Mr. MOSTELLER. I would hope so. It would suggest that, at least 

as I read Mr. Montgomery’s testimony, that that could not even be 

an admonition to—— 
51 

Mr. NADLER. I’m sorry. It was suggested it could or could not? 

Mr. MOSTELLER. Couldn’t deny, that it shouldn’t even be an admonition, that you are not supposed to—— 

Mr. NADLER. So, in other words, the wording of this amendment 

as it is worded might, in fact, in your judgment, preclude the judge 

from excluding an alleged victim who was behaving in a way that 

might prejudice the trial? 

Mr. MOSTELLER. It could. I would hope that the reasonable application would avoid that problem. 

Mr. NADLER. But one doesn’t know. 

Mr. MOSTELLER. Pardon? 

Mr. NADLER. But one doesn’t know. 

Mr. MOSTELLER. One doesn’t know. 

Mr. NADLER. Thank you. Now, Professor Beloof cites two cases 

that seem relevant to the text of the proposed amendment. The 

Antrobus this case involved a mass shooting in which the victims 

were denied victim status by the court. In the murder of border patrol agent Brian Terry, Professor Beloof states that the Terry family was similarly denied victim status. In both instances, Professor 

Beloof points out that the CVRA, that is the Act, the Crime Victims’ Rights Act, the definition of victim ‘‘depends on whether the 

harm was a direct and proximate cause of the conduct.’’ That is the 

same language used in the text of the proposed amendment. Section 2 of the amendment reads, ‘‘A crime victim includes any person against whom the criminal offense is committed or who is directly and proximately harmed by the commission of an act which, 

if committed by a competent adult, would constitute a crime.’’ 

It seems to be exactly the same. So it seems that it wouldn’t 

solve the problem. Would you comment? 

Mr. MOSTELLER. It wouldn’t solve that problem, and, in fact, this 

version added ‘‘proximate cause.’’ It did not exist until this version. 

So if you went back to the version that was in this chamber last 

year—— 

Mr. NADLER. But never mind last year’s version. This version? 

Mr. MOSTELLER. This version has proximate cause and it. The 

version last year did not have proximate cause in it. It makes it 

just the same, and it does not guarantee any discovery right or any 

other right that would eliminate the problem. 

Mr. NADLER. Thank you. 

My time has expired. 

Mr. FRANKS. Thank you, and I will now recognize the gentleman 

from Ohio for 5 minutes for questioning. 

Mr. CHABOT. Thank you very much, Mr. Chairman. 

Professor Mosteller, let me start with you, if I can. In the United 

States Constitution, there are a number of rights of the criminal 

defendant which are stated very plainly, the right to a jury trial, 

the right not to have to self-incriminate himself or herself, and a 

number of other things, right in the U.S. Constitution. Now, the innocent victim, the victim’s family, they may be protected by a state 

constitution or perhaps a state statute, but not in the Constitution. 

That is what the intention of this is, to put the two at least on an 

equal footing. 

We are talking about right now the criminal defendant who has 

oftentimes taken away the loved one of a family, a person who has 
52 

done something clearly wrong, something heinous. They are protected. They get the best protection possible from the U.S. Constitution. The innocent victim, the person who hasn’t done anything wrong, and their family, no protection whatsoever in the U.S. 

Constitution, I would argue an oversight. Great document, an oversight there. The only way we can change that is to amend it. Our 

founders put in there a mechanism for us to do that. We have been 

trying to do it for years, and that is what we are trying to do today. 

Oftentimes, if the U.S. Constitution says one thing and a state 

statute says something else, if there is a discrepancy, and sometimes there is, the U.S. Constitution is going to trump the state 

statute every time. A lot of us believe that is just not fair. That is 

why we want to change this. 

Would you disagree with anything I have said? And if so, what? 

Mr. MOSTELLER. I would disagree with your statement of equalizing. The status of the criminal defendant, when he is charged, 

and as justice Scalia said with respect to the confrontation clause, 

you don’t deny confrontation because you think the testimony was 

reliable; you don’t deny a fair trial, a jury trial, because the judge 

decides that the defendant is guilty. We do not know whether the 

defendant is guilty at that moment. 

Our framers set up a system in a situation in which the full 

power of government comes down against a charged defendant, suffering the possibility of his life or liberty being destroyed, he is 

given process rights that lead to fairness, that protect the individual—— 

Mr. CHABOT. Reclaiming my time, as I have a limited amount of 

time, let me turn to Professor Beloof, and also to Mr. Montgomery. 

Would you like to respond to the question that I asked? And perhaps, if you would like to, to the Professor’s answer? 

Mr. BELOOF. I agree with it. I agree with it, and I disagree with 

much of what my colleague, Professor Mosteller, says about the 

substantive issues of this amendment. I don’t believe the defendant’s rights will be trampled in any way. The idea that somehow 

victims attending trial will destroy defendant’s rights I disagree 

with. 

First of all, there are police reports that lock down these witnesses statements. There are grand jury testimony that locks down 

these witness statements, leaving tremendous capacity for defense 

attorneys to destroy the credibility of witnesses. Moreover, witnesses in a trial, their attendance in a trial on more than one occasion has revealed the testimony on the stand is untrue. So barring 

witnesses from the courtroom actually encourages the lack of truth 

telling. 

So this is not a one-sided issue in any regard. 

As to Professor Mosteller’s testimony that this has dropped a variety of things, this is in response to genuine and considered criticism in the Senate that the last version looked too much like a 

statute and not enough like a constitutional amendment. So we focused on the core. 

Mr. CHABOT. Thank you. I am almost out of time. So, Mr. Montgomery, instead of going to you, if I could go to Mr. Gillis. 

Again, we all feel great pain for what you and your family have 

gone through, but let me ask you this. One of the great injustices 
53 

was the fact that you were unable to go in and see what was going 

on, listen to what was going on, and your daughter was taken from 

you, and the perpetrator and the families in connection, gang members, were in there. You did not get the opportunity to speak at a 

number of the proceedings on behalf of, for example, sentencing 

and what you felt. What would you have told the court had you 

been given the opportunity to make a statement? What sort of 

input do you think your daughter and yourself should have been 

able to give the court? 

Mr. GILLIS. I think we could have talked about how it had impacted the family. We could have also talked about what we knew 

about the defendant from the community. But let me also talk 

about us being barred from the court, having us sit in the hallway 

because they thought that we could be possibly a witness. It wasn’t 

because we were a witness to anything. We were not percipient 

witnesses to anything. So we just sat in the hall because the defense did not want us in, and in most cases I find, during my experience as a law enforcement officer and the other experiences I 

have had with the criminal justice system, the defense usually does 

not want the victim in court because sometimes the victim has information that they can give to the prosecutor that will help direct 

the case. So it is one less individual that the defense has to worry 

about. 

But most victims want to see the right person prosecuted for the 

crime. They don’t want to see somebody unjustly accused or unjustly convicted of a crime. So keeping victims out of the court, it 

just doesn’t make sense. 

Mr. CHABOT. Thank you very much. 

I yield back, Mr. Chairman. 

Mr. FRANKS. Thank you, Mr. Chabot. 

I would now yield to the gentleman from Virginia, Mr. Scott, for 

5 minutes. 

Mr. SCOTT. Thank you. 

Mr. Montgomery, we don’t need a Federal constitutional amendment to force you to treat people with dignity and respect, do we? 

Mr. MONTGOMERY. Mr. Chairman, Mr. Scott, no, but I understand what my oath is, and I understand what my duty is in the 

criminal justice system. So it actually is a part of how I carry forward my duties. But I would still say to that point, the oath I took 

of office was to uphold the U.S. Constitution and our state constitution and the laws thereof, and we do have a victims’ bill of rights 

in Arizona that requires me to treat a victim with fairness, respect, 

and dignity. 

But for those who didn’t go through the victims’ rights seminar 

I went through, who don’t have the same appreciation, our criminal 

justice system does not institutionalize that kind of treatment as 

much as we institutionalize the treatment of defendants. 

Mr. SCOTT. Well, is there a difference in how victims are treated 

in states with a constitutional amendment and without a constitutional amendment? 

Mr. MONTGOMERY. I believe that there is. If you are in a state 

without a constitutional amendment, when it is convenient to ignore a victim, when it is convenient to handle a case without taking into account—— 
54 

Mr. SCOTT. Well, exactly what happens—— 

Mr. MONTGOMERY [continuing]. Whatever it is that they regard, 

they do so. 

Mr. SCOTT. And I am sure when you have a constitutional 

amendment, some of the witnesses are ignored and disrespected. 

What does the victim who is disrespected then do? 

Mr. MONTGOMERY. Well, within the State of Arizona and those 

states that do provide the ability to appeal, that information is 

brought to the attention of the court, and I can certainly tell 

you—— 

Mr. SCOTT. Which court? The same court? This thing says any 

court. I don’t know what that means, you can enforce these rights 

in any court. Does that limit it to the court that the case is actually 

pending in, or can you go to another judge? 

Mr. MONTGOMERY. Mr. Scott, I think what you would do is you 

would follow the same process that we follow in the United States 

and in all courts where initially you bring it before the court in 

which the incident or the matter is initially to be heard and then 

follow the regular appellate process. That is what we do in Arizona, 

and it works very well. 

Mr. SCOTT. And is there any priority for those cases? 

Mr. MONTGOMERY. It depends. Within the Federal Crime Victims’ Rights Act, appellate courts, if the matter in question is at 

a district court level, have to rule on a mandamus quickly. In our 

state courts—— 

Mr. SCOTT. Does that take precedence over other pending cases? 

Mr. MONTGOMERY. I believe that it does. They have to rule on 

the mandamus quickly, and that is important. What we have to 

keep in mind here is that we were talking about a criminal justice 

system where we are trying to make sure that the truth-seeking 

function is honored and that at the end of it a crime victim, then, 

when communicating to other members of our community, when 

communicating with their family members the resolution of the 

case, can say, you know what, I got harmed, and our criminal justice system took care of me, and it worked, and it was good. 

Mr. SCOTT. I am just trying to figure out how this thing works, 

because if somebody doesn’t think the prosecutor, the case is going 

quickly enough, how do you ascertain the reasonableness of a 

delay? 

Mr. MONTGOMERY. Sure. Mr. Scott, we have a very well-developed body of jurisprudence on speedy trial rights for defendants. 

The corollary to that, then, is in looking at instances in which a 

victim might assert an unreasonable delay, and I will give you a 

great example. I will contrast it, too. 

In an instance in which a defense attorney has not been able to 

complete interviews of witnesses and I have a victim asking me 

when is this going to go to trial, and I have personally prosecuted 

hundreds of cases, I will tell them our trial date was originally set 

for June. However, there are five more witnesses we need to interview, so we are going to have to delay it to complete that. That sets 

a reasonable delay. 

Mr. SCOTT. Well, that is reasonable in your mind. Suppose it is 

not reasonable in the victim’s mind, if they say why don’t you get 

to work and do the work and get it done? 
55 

Mr. MONTGOMERY. Sure, and the victim can certainly bring that 

to the court’s attention, at which point—— 

Mr. SCOTT. Do they have a right to a hearing on that issue? 

Mr. MONTGOMERY. Oh, they have a right. When you are going to 

have a court hearing at which a motion to continue is going to be 

heard, because the defendant has a right to be there, a victim in 

Arizona has a right to be there, and also has a right to be heard 

on that point, and it happens all the time. 

Mr. SCOTT. And what could be a perfunctory motion in agreement with the defendant and the prosecutor now becomes a fullblown hearing. 

Mr. MONTGOMERY. And there are times when search and seizure 

issues are so apparent on their face, but we still give the defendant 

their hearing. I don’t think it is unreasonable at all to give the victim of a crime 2 minutes to be heard on an issue. But let me give 

you an example of an unreasonable delay. 

Mr. SCOTT. Wait a minute. Why do you limit it to 2 minutes? I 

mean—— 

Mr. MONTGOMERY. It really doesn’t take that much time. Having 

practiced in court, like I said, over several hundred felonies, it 

doesn’t take much time to permit a victim to be heard on the 

record. Five minutes isn’t a whole lot of time, either. 

Mr. SCOTT. Do they get to bring witnesses on what’s reasonable? 

I mean, you are trying to determine whether a delay is reasonable 

or not. 

Mr. MONTGOMERY. Sure. There is no need for witnesses. You are 

talking about the conduct of the case. You have counsel for each 

side there. You have the judge, who is sitting on the case there. 

Here is an unreasonable delay, though, and I would say this is why 

we need this in the Federal Constitution. In a homicide case in 

which a young child was brutally murdered, the defense attorney 

actually asked for a continuance for 3 weeks so that she could go 

on her annual shopping trip to go buy shoes. The only thing more 

offensive than someone trying to delay it was the fact that the 

court granted it. 

Mr. SCOTT. Well, perhaps the court could decide maybe you have 

a problem getting your witness to court and you want to delay. The 

defendant doesn’t know why you want to delay. You are just agreeing to a continuance. Do you have to articulate in court that your 

witness is not available, or your evidence, you have lost your evidence? Do you have to articulate that in court so that the court 

could rule on whether or not the continuance is reasonable or not? 

Mr. MONTGOMERY. Mr. Scott, if I lost evidence and I am trying 

to delay a trial from starting, I believe I have committed an ethical 

violation when I know I can’t proceed. In the instance of being able 

to try to find a witness—— 

Mr. SCOTT. Wait a minute. You are looking for the evidence. 

Mr. MONTGOMERY. Well, that is different than saying I lost it. 

Mr. SCOTT. Okay. Well, you don’t have it, and you have to articulate in open report, ‘‘Your Honor, we are not ready because we 

don’t have enough evidence to proceed,’’ and the defendant ends up 

objecting to a continuance, so we are still trying to find evidence. 

Do you have to articulate that in court? I mean, the victim is say-
56 

ing let’s go, let’s go, and you are in open court. They have a right 

to be there. 

Mr. MONTGOMERY. And I don’t have a problem with that. If I am 

going to tell the court, ‘‘Judge, I am not ready for trial today’’—but 

the other thing to keep in mind is that most states also have a lastday setting in which a defendant has to be tried. If I am asking 

for a continuance and I am still within what is known as a reasonable time, I have 150 days to try a defendant of a felony who is 

in custody in Arizona. If I am moving from the 120th day to the 

149th day, I am still within the timeframe to do it, and I am going 

to have a conversation with the victim. 

The victim in Arizona has the right to confer with the prosecutor 

before the case gets resolved. I am talking to them. I am letting 

them know what is going on. I am also talking to the defense attorney. 

Mr. SCOTT. And if they are not satisfied, do they have the right 

to an appeal? 

Mr. MONTGOMERY. Yes, they can. They can assert their rights in 

trial court and they can special action in Arizona those rights to 

an appellate court, and this does happen on occasion. There are 

times when I, as the elected prosecutor in Maricopa County, will 

file an appeal on behalf of a crime victim to an appellate court to 

advocate for their rights. I am no more able to violate their constitutional rights in Arizona than I can a defendant’s constitutional 

rights, and we do it every day. 

Mr. FRANKS. Without objection, the gentleman from New York is 

granted 1 minute for questions. 

Mr. NADLER. Thank you. I would like to ask Mr. Montgomery, 

and ask Professor Mosteller to comment also. The amendment says 

the crime victim shall have the right to various things and to restitution. That is a very open concept. So my question is, how would 

this work? What are the limits of it, if any? Who enforces it? How 

do you measure the restitution? Who is responsible for it? Let’s assume that the culprit, the defendant, is adjudged guilty, is destitute. And finally, let’s assume that the culprit goes to jail for 30 

years or a long period of time, and when he comes out, does he 

then owe $30,000 even though he has no money? I mean, how does 

this work? 

Mr. MONTGOMERY. Sure. I can offer our experience in Arizona, 

where we do have a constitutional right to restitution. At the conclusion of the case, the judge can enter a criminal restitution order 

against the defendant, ordering restitution for economic loss caused 

by the criminal conduct. 

Mr. NADLER. Only economic loss? 

Mr. MONTGOMERY. It is economic loss, correct. So you look at 

whether or not the victim lost work because they had to come to 

court. Let’s use an easy example of, say, an instance in which 

maybe someone stole a victim’s car and then crashed it. They can 

get the replacement cost for that vehicle. 

Mr. NADLER. We know how to measure economic loss. 

Mr. SCOTT. Who pays it? 

Mr. NADLER. Who pays it? 

Mr. MONTGOMERY. The person responsible. And in terms of holding a defendant fully—— 
57 

Mr. NADLER. Let’s assume he doesn’t have the means. Then 

what? 

Mr. MONTGOMERY. Get to work. 

Mr. NADLER. And if he goes to jail? 

Mr. MONTGOMERY. You should not be able to avoid responsibility 

for your criminal conduct because you say you don’t have money. 

You had better get out there and work. 

Mr. NADLER. And in a serious crime, you go to jail for 30 years. 

So do you delay the restitution for 30 years? 

Mr. MONTGOMERY. No. They get to work in prison, and from 

their earnings, restitution is forwarded to the victim of crime. 

Mr. FRANKS. The gentleman’s time has expired, but if he wants 

to ask Professor Mosteller a question, then he can. 

Mr. MOSTELLER. We don’t know what it would mean in the Federal Constitution. Words like this are unprecedented. ‘‘To restitution’’ is different than it was in the previous version. It used to be 

in one version ‘‘to an order of restitution from the convicted defendant.’’ Is this a right to monetarily be made whole by someone? And 

you have a constitutional right that says ‘‘to restitution.’’ Eighty 

percent of the people are indigent. What will it mean down the 

road? We don’t have these kinds of rights in our United States 

Constitution. They do exist in some state constitutions, but it is unprecedented. 

Mr. NADLER. It doesn’t say just economic. 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. MOSTELLER. It does not say economic, and it does not say 

from whom. 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. NADLER. Thank you. 

Mr. FRANKS. I might make the observation that if someone is to 

be held liable for economic loss, it probably should be the convicted 

offender rather than the victim. 

With that, this concludes today’s hearing. I want to thank all of 

the witnesses for attending. You have been very responsive and 

very insightful. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

I thank the witnesses, and I thank the Members, and I thank the 

audience for their attendance today. 

And with that, this hearing is adjourned. 

[Whereupon, at 12:43 p.m., the Subcommittee was adjourned.] 

(59) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
60 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution and Civil Justice 
61 

480 UTAH LAW REVIEW [1999: 479 

"pending constitutional amendment with the best chance of being approved 

by Congress in the foreseeable future.'>! 

As the Victims' Rights Amendment has moved closer to passage, 

defenders of the old order have manneds the barricades against its adoption. 

In Congress, the popular press, and the law reviews, they have raised a series 

of philosophical and practical objections to protecting victims' rights in the 

Constitution. These objections run the gamut, from the structural (the 

Amendment will change "basic principles that have been followed throughout 

American history''';), to the pragmatic ("it will lay waste to the criminal 

justice system"?), to the aesthetic (it will "trivialize" the Constitutions). In 

some sense, such objections are predictable. The prosecutors, defense 

attorneys, and judges who labor daily in the criminal justice vineyards have 

long struggled to hold the balance true between the State and the defendant. 

To suddenly find third parties-rather, third persons who are not even 

parties-threatening to storm the courthouse gates provokes, at least from 

some, an understandable defensiveness. If nothing else, victims promise to 

complicate life in the criminal justice system. But more fundamentally, if 

these victims' pleas for recognition are legitimate, what does that say about 

how the system has treated them for so many years? 

Others in this Symposium have touched on overarching questions 

presented by the victims' challenge to the structure of our criminal justice 

'Dan Carney, Crime Victims' Amendment Has Steadfast Support, But Little Chance of 

Floor Time, CONGo QUART., July 30, 1998, at 1883. 

51 use the tenn "man" provocatively because certain aspects of the defense resist efforts 

by feminists to provide justice to victims of rape and domestic violence, who are disproportionately women. See, e.g., Beverly Harris Elliott, President of the National Coalition Against 

Sexual Assault, Balancing Justice: How the Amendment Will Help All Victims of Sexual 

Assault (visited March 6, 1999) <http://www.nvc.orglnewsltrlsexass2.htm> (arguing that 

Amendment would encourage victims to report and assist in prosecution of acts of sexual 

violence): Joan Zorza, Victims' Rights Amendment Empowers AI/ Battered Women (visited 

March 6, 1999) <http://www.nvc.orglnewsltr/bauwom.htm> (stating that constitutional 

amendment will help battered women by rebalancing criminal justice system); see also infra 

note 258 and accompanying text (discussing women and children who have died from lack of 

notice of offender's release). 

6A Proposed Constitutional Amendment to Protect Victims of Crime : Hearings on s.J. 

Res. 6 Before the Senate Comm. on the Judiciary, I05th Congo 141 (1997) [hereinafter 1997 

Senate judiciary Comm. Hearings] (letter from various law professors opposing Amendment). 

7 Proposals for a Constitutional Amendment to Provide Rights for Victims of Crime: 

Hearings on H.J. Res. 173 & H.J. Res. 174 Before the House Comm. on the Judiciary, 104th 

Congo 143 (1996) [hereinafter 1996 House Judiciary Comm. Hearings] (statement of Ellen 

Greenlee, President, National Legal Aid and Defender Association). 

"A Proposed Constitutional Amendment 10 Establish a Bifl of Rights for Crime Victims: 

Hearings on s.J. Res. 52 Before the Senate Comm. on the Judiciary, I04th Congo 101 (1996) 

[hereinafter 1996 Senate Judiciary Comm. Hearings] (statement of Bruce Fein). 

Heill0nline .. 1999 Utah L. Rev. 4XO 1999 
62 

No.2] BARBARIANS AT THE GATES? 481 

system. Professor Douglas Beloof's memorable paper persuasively demonstrates that a full appreciation of the rights of crime victims requires a "third 

model'" that does not fit comfortably with the existing prosecution- and 

defendant-oriented paradigms generally used to understand the criminal 

process.9 Indeed, as Professor William Pizzi's thought-provoking essay 

suggests, the very notion ofvictims having some role to play in the system is 

mind-boggling to professionals in the system who cannot even envision 

where a victim might sit in the courtroom.1O Similar themes come to mind in 

reading Professor Susan Bandes's article, which skillfully describes the 

panoply of standing barriers that have been raised to prevent victims from 

obtaining admission to criminal proceedingsY Furthermore, Stephen Twist's 

insightful essay identifies the ways in which the system's zeal in protecting 

defense and prosecution interests has, in some ways, sown the seeds of its 

own destruction}2 

My aim here is not to visit such intriguing general issues about victims 

in the criminal justice process, but rather to focus on how victims' rights 

would operate under one concrete proposal-the Victims' Rights Amendment. In particular, this Article analyzes the objections that the Amendment's 

opponents have raised. It should come as no great surprise that claims the 

Amendment simultaneously would "change basic principles that have been 

followed throughout American history," "lay waste to the criminal justice 

system," and-for good measure-"trivialize" the Constitution are not all 

true. This Article attempts to demonstrate that, in fact, none of these 

contradictory assertions is supported. A fair-minded look at the Amendment 

confirms that it will not "lay waste" to the system, but instead will build upon 

and improve it-retaining protection for the legitimate interests ofprosecutors and defendants, while adding recognition of equally powerful interests 

of crime victims. 

The objections to the Victims' Rights Amendment conveniently divide 

into three categories, which this Article analyzes in tum. Part I reviews 

normative objections to the Amendment-that is, objections to the desirability of the rights. The Part begins by reviewing the defendant-oriented 

objections leveled against a few of the rights, specifically the victim's right 

to be heard at sentencing, the victim's right to be present at trial, and the 

'See Douglas Evan Beloof, The Third Model of Criminal Process: The Victim 

Participation Model, 1999 UTAH L. REv. 289 passim. 

I"See William T. Pizzi, Victims' Rights: Rethinking Our "Adversary System," 1999 UTAH 

L. REV. 349 passim. 

IISee Susan Bandes, Victim Standing, 1999 UTAH L. REv. 331 passim. 

12See Steven J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect 

Things. 1999 UTAH L. REv. 369 passim. 

Heill0nline .. 1999 Utah L. Rev. 4Xl 1999 
63 

482 UTAH LAW REVIEW [1999: 479 

victim's right to a trial free from unreasonable delay. These objections lack 

merit. Part I concludes by refuting the prosecution-oriented objections to 

victims' rights, which revolve primarily around alleged excessive consumption of scarce criminal justice resources. These claims, however, are 

inconsistent with the available empirical evidence on the cost of victims' 

rights regimes in the states. 

Next, Part II considers what might be styled as justification challenges-challenges that a victims' amendment is unjustified because victims 

already receive rights under the existing amalgam of state constitutional and 

statutory provisions. This claim ofan "unnecessary" amendment, as advanced 

most prominently and capably in law review articles by Professor Robert 

Mosteller here and elsewhere,13 misconceives the undeniable practical 

problems that victims face in attempting to secure their rights without federal 

constitutional protection. 

Part III then turns to structural objections to the Amendment-claims 

that victims' rights are not properly constitutionalized, as advanced skillfully 

by Professor Henderson in this Symposium14 and by others elsewhere. 

Contrary to this view, protection of the rights of citizens to participate in 

governmental processes is a subject long recognized as an appropriate one for 

a constitutional amendment. Moreover, constitutional protection for victims 

also can be crafted in ways that are sufficiently flexible to accommodate 

varying circumstances and varying criminal justice systems from state to 

state. 

Finally, the Article concludes by examining the nature of the opposition 

to the Victims' Rights Amendment. Victims are not barbarians seeking to 

dismantle the pillars of wisdom from previous ages. Rather, they are citizens 

whose legitimate interests require recognition in any proper system of 

criminal justice. The Victims' Rights Amendment therefore deserves our full 

support. 

I. NORMATIVE CHALLENGES 

The most basic level at which the Victims' Rights Amendment could be 

disputed is the normative one: victims' rights are simply undesirable. Few of 

the objections to the Amendment, however, start from this premise. Instead, 

"See, e.g., Robert P. Mosteller, The Unnecessary Victims' Rights Amendment, 1999 

UTAH L. REV. 443 passim [hereinafter Mosteller, Unnecessary Amendment]; see also Robert 

P. Mosteller, Victims' Rights and the United States Constitution: An Effort to Recast the Battle 

in Criminal Litigation. 8S GEO. LJ. 1691, 1692 (1997) [hereinafter Mosteller, Recasting the 

Battle]. 

"See Lynne Henderson, Revisiting Victim's Rights, 1999 UTAH L REv. 383 passim. 

Heil10nline -- 1999 Utah L. Rev. 4X2 1999 
64 

No.2] BARBARIANS AT THE GATES? 483 

the vast bulk of the opponents flatly concede the need for victim participation 

in the criminal justice system. For example, the senators on the Senate 

Judiciary Committee who dissented from supporting the AmendmentS began 

by agreeing that "[t]he treatment of crime victims certainly is of central 

importance to a civilized society, and we must never simply 'pass by on the 

other side."'16 Additionally, various law professors who sent a letter to 

Congress opposing the Amendment similarly begin by explaining that they 

"commend and share the desire to help crime victims" and that "[c]rime 

victims deserve protection.,,17 Further, Professor Mosteller agrees that "every 

sensible person can and should support victims of crime" and that the idea of 

"guarantee[ing] participatory rights to victims in judicial proceedings ... is 

salutary." 18 

The principal critics of the Amendment agree not only with the general 

sentiments of victims' rights advocates but also with many of their specific 

policy proposals. Striking evidence of this agreement comes from the federal 

statute proposed by the dissenting senators, which would extend to victims 

in the federal system most of the same rights provided in the Amendment. 19 

Other critics, too, have suggested protection for victims in statutory rather 

than constitutional terms?O In parsing through the relevant congressional 

hearings and academic literature, many of the important provisions of the 

Amendment appear to garner wide acceptance. Few disagree, for example, 

that victims of violent crime should receive notice that the offender has 

escaped from custody and should receive restitution from an offender. What 

is most striking, then, about debates over the Amendment is not the scattered 

points of disagreement, but rather the abundant points of agreement? 1 This 

harmony suggests that the Amendment satisfies a basic requirement for a 

constitutional amendment-that it reflect values widely shared throughout 

15Unless othenvise specifically noted, I will refer to the minority views of Senators 

Leahy, Kennedy, and Kohl as the "dissenting Senators," although a few other Senators also 

offered their dissenting views. 

16S. REP. No. 105-409, at 50 (1998) (minority views ofSens. Leahy, Kennedy, and Kohl). 

171997 SenateJlldiciary Comm. Hearings, sllpra note 6, at 140-41 (letter from various 

law professors). 

ISMosteller, Recasting the Ball/e. sllpra note 13, at 1692. 

19See Crime Victims Assistance Act, S. 1081, 105th Cong., 1st Sess. (1997) (providing 

victims with enhanced rights in trial process); see also S. REp. No. 105-409, at 77 (1998) 

(minority views ofSens. Leahy and Kennedy) (defending this statutory protection of victims' 

rights). 

20See, e.g., 1997 Senate Judiciary Comm. Hearings, supra note 6, at 141 (letters from 

various law professors) ("Crime victims deserve protection, but this should be accomplished 

by statutes, not a constitutional amendment.'"}. 

21 See generally Twist, sllpra note 12, at 378 (noting frequency with which opponents of 

Amendment endorse its goals). 

Heill0nline -- 1999 Utah L. Rev. 4X1 1999 
65 

484 UTAH LAW REVIEW [1999: 479 

society. There is, to be sure, normative disagreement about some of the 

proposed provisions in the Amendment, disagreements analyzed below. But 

the natural tendency to focus on points of contlict should not obscure the 

substantial points of widespread agreement. 

While there exists near consensus on the desirability of many of the 

values retlected in the Amendment, a few rights are disputed on grounds that 

can be conveniently divided into two groups. Some rights are challenged as 

unfairly harming defendants' interests in the process, others as harming 

interests of prosecutors. That the Amendment has drawn fire from some on 

both sides might suggest that it has things about right in the middle. Contrary 

to these criticisms, however, the Amendment does not harm the legitimate 

interests of either side. 

A. Defendant-Oriented Challenges to Victims' Rights 

Perhaps the most frequently repeated claim against the Amendment is 

that it would harm defendants' rights. Often this claim is made in general 

terms, relying on little more than the retlexive view that anything good for 

victims must be bad for defendants. But, as the general consensus favoring 

victims' rights suggests, rights for victims need not come at the expense of 

defendants. Strong supporters of defendants' rights agree. Professor Laurence 

Tribe, for example, has concluded that the proposed Amendment is "a 

carefully crafted measure, adding victims' rights that can coexist side by side 

with defendants,.,,22 Similarly, Senator Joseph Biden reports: "I am now 

convinced that no potential contlict exists between the victims' rights 

enumerated in [the Amendment] and any existing constitutional right 

afforded to defendants .... "23 A recent summary of the available research on 

the purported contlict of rights supports these views, finding that victims' 

rights do not harm defendants: 

[SJtudies show that there "is virtually no evidence that the victims' 

participation is at the defendant's expense." For example, one study, with 

data from thirty-six states, found that victim-impact statutes resulted in 

only a negligible effect on sentence type and length. Moreover, judges 

interviewed in states with legislation granting rights to the crime victim 

indicated that the balance was not improperly tipped in favor of the victim. 

One article studying victim participation in plea bargaining found that 

22Laurence H. Tribe & Paul G. Cassell, Embed the Rights oj Victims in the Constitution, 

L.A. TIMES, July 6, 1998, at S5. For a more detailed exposition of Professor Tribe's views, see 

J 996 House Judiciary Comm. Hearings, supra note 7, at 238 (letter from Prof. Tribe). 

2)S. REP. No. 105-409, at 82 (1998) (additional views of Sen. Siden). 

Heill0nline .. 1999 Utah L. Rev. 4X4 1999 
66 

No.2] BARBARIANS AT THE GATES? 

such involvement helped victims "without any significant detrimental 

impact to the interests of prosecutors and defendants." Another national 

study in states with victims' reforms concluded that: "'[v]ictim satisfaction 

with prosecutors and the criminal justice system was increased without 

infringing on the defendant's rights.,,24 

485 

Given these empirical findings, it should come as no surprise that claims 

that the Amendment would injure defendants rest on a predicted parade of 

horribles, not any real-world experience. Yet this experience suggests that the 

parade will never materialize, particularly given the redrafting of the 

proposed amendment to narrow some of the rights it extends.25 A careful 

HChief Justice Richard Barajas & Scott A. Nelson, The Proposed Crime Viclims' 

Federal Conslilulional Amendmenl: Working Toward a Proper Balance, 49 BAYLOR L. REv. 

I, 18-19 (1987) (quoting Deborah P. Kelly, Have Viclim Reforms Gone Too Far-or Nol Far 

Enough?, 5 CRIM.JUST., Fall 1991, at 28,28; Sarah N. Welling, Viclim Parlicipalion in Plea 

Bargains, 65 WASH. U. L.Q. 301, 355 (1987» (internal footnotes omitted). 

25 As originally proposed, the Amendment extended to victims a broad right "[t]o a final 

disposition of the proceedings relating to the crime free from unreasonable delay." S.J. Res. 

6, 105th Congo § I (1997). It now provides victims a narrower right to "consideration ofthe 

interest ofthe victim that any trial be free from unreasonable delay." S.1. Res. 3, 106th Congo 

§ I (1999). This narrower formulation, limited to a "trial," avoids the objection that an openended right to a speedy disposition could undercut a defendant's post-trial, habeas corpus 

rights, particularly in capital cases. See. e.g., 1997 Senale Judiciary Comm. Hearings, supra 

note 6, at ISS (statement of Mark Kappelhoof, ACLU Legislative Counsel) (stating that "right 

of habeas corpus is also threatened under [the Amendment],,). 

As originally proposed, the Amendment also promised victims a broad right to "be 

reasonably protected from the accused." SJ. Res. 6, 105th Congo (1997). It now provides 

victims a right to have the "safety of the victim [considered] in determining [aJ release from 

custody." S.1. Res. 3, 106th Congo § I (1999). This narrower formulation was apparently 

designed, in part, to respond to the objection that the Amendment might be construed to hold 

offenders "beyond the maximum term or even indefinitely if they are found to pose a danger 

to their victims." 1997 Senale Judiciary Comm. Hearings, sllpra note 6, at ISS (statement of 

Mark Kappelhoof, ACLU Legislative Counsel). 

Professor Mosteller has argued that these particular changes, and several others like 

them, were designed to move the Amendment away from providing aid to victims to instead 

provide nothing but a benefit to prosecutors. See Robert P. Mosteller, Viclims' Righls and the 

Conslilll/ion: Movingfrom Guaranleeing Parlicipatory Rights to Benefiling Ihe Proseculion, 

29 ST. MARY'S L.1. 1053, 1058 (1998). This strikes me as a curious view, given that these 

changes specifically responded to concerns expressed by advocates of defendants' rights, 

jncluding Mosteller himself. See Mosteller, Recasling Ihe BailIe, supra note 13, at 1707 n.58. 

More generally, it should be clear that the proposed Amendment is not predicated on the idea 

of providing benefits to prosecutors. Not only has the Amendment been attacked as harming 

prosecution interests, see infra notes 127-47 and accompanying text, but it does not attempt 

to achieve such a favorite goal of prosecutors as overturning the exclusionary rule. Cf CAL. 

CONST. art. I, § 28 (victims' initiative restricting exclusion of evidence); OR. CONST. art. J, § 

42 (same), invalidaled, Armatta v. Kitzhaber, 959 P.2d 49, 64 (Or. 1998) (holding that 

initiative violated Oregon Constitution's single subject rule). See generally PRESIDENT'S TASK 

Heil10nline -- 1999 Utah L. Rev. 4X5 1999 
67 

486 UTAH LAW REVIEW [1999: 479 

examination of the most-often-advanced claims of conflict with defendants' 

legitimate interests reveals that any purported conflict is illusory.26 

1. The Right to Be Heard 

Some opponents of the Amendment object that the victim's right to be 

heard wiII interfere with a defendant's efforts to mount a defense. At least 

some of these objections refute straw men, not the arguments for the 

Amendment. For example, to prove that a victim's right to be heard is 

undesirable, objectors sometimes claim (as was done in the Senate Judiciary 

Committee minority report) that "[t]he proposed Amendment gives victims 

[a 1 constitutional right to be heard, if present, and to subm it a statement at all 

stages of the criminal proceeding.,,27 From this premise, the objectors then 

postulate that the Amendment would make it "much more difficult for judges 

to limit testimony by victims at triar' and elsewhere to the detriment of 

defendants.28 This constitutes an almost breathtaking misapprehension of the 

scope of the rights at issue. Far from extending victims the right to be heard 

at "all" stages of a criminal case including the trial, the Amendment explicitly 

limits the right to public "proceedings to detennine a conditional release from 

custody, an acceptance of a negotiated plea, or a sentence.,,29 At these three 

kinds of hearings-bail, plea, and sentencing-victims have compelling 

reasons to be heard and can be heard without adversely affecting the 

defendant's rights. 

Proofthat victims can properly be heard at these points comes from what 

appears to be a substantial inconsistency by the dissenting senators. While 

criticizing the right to be heard in the Amendment, these senators simultaneously sponsored federal legislation to extend to victims in the federal 

FORCE ON VICTIMS OF CRIME, FINAL REPORT 24-28 (1982) (urging abolition of exclusionary 

rule on victim-related grounds). 

2·Until the opponents of the Amendment can establish any conflict between defendants' 

rights under the Constitution and victims' rights under the Amendment, there is no need to 

address the subject of how courts should balance the rights in case of conflict. Cf S. REp. No. 

105-409. at 22-23 (1998) (explaining reasons for rejecting balancing language in Amendment); 

.-l Proposed Constitutional Amendment to Protect Crime Victims: Hearings on s.J. Res. 44 

Be/ore the Senate Comm. on the Judiciary, 105th Congo 45 (1998) [hereinafter 1998 Senate 

Judiciary Comm. Hearings] (statement of Prof. Paul Cassell), discussed in Mosteller, 

Unnecessary Amendment, supra note 13, at 464--65 (discussing how balancing language might 

be drafted if conflict were to be proven). 

27S. REp. No. 105-409, at 66 (I 998)(minority views ofSens. Leahy, Kennedy, and Kohl) 

(emphasis added). 

2'/d. (emphasis added). 

'"S.l. Res. 3, 106th Congo § 1 (1999). 

Heill0nline .. 1999 Utah L. Rev. 4X6 1999 
68 

No.2] BARBARIANS AT THE GATES? 487 

system precisely the same rights.30 They urged their colleagues to pass their 

statute in lieu of the Amendment because "our bill provides the very same 

rights to victims as the proposed constitutional amendment.,il' In defending 

their bill, they saw no difficulty in giving victims a chance to be heard,32 a 

right that already exists in many states.33 

A much more careful critique of the victim's right to be heard is found 

in a recent prominent article by Professor Susan Bandes?4 Like most other 

opponents of the Amendment, she concentrates her intellectual fire on the 

victim's right to be heard at sentencing, arguing that victim impact statements 

are inappropriate narratives to introduce in capital sentencing proceedings.35 

While rich in insights about the implications of "outsider narratives," the 

article provides no general basis for objecting to a victim's right to be heard 

at sentencing. Her criticism of victim impact statements is limited to capital 

cases, a tiny fraction of all criminal trials.36 

]OSee S. 1081, 105th Congo 1st Sess. § 101 (1997) (establishing right to be heard on issue 

of detention); id § 121 (establishing right to be heard on merits of plea agreement); id. § 122 

(establishing enhanced right of allocution at sentencing). 

JlS. REp. No. 105-409, at 77 (1998) (minority views ofSens. Leahy and Kennedy). 

32See. e.g., 143 CONGo REc. S8275 (daily ed. July 29,1997) (starement of Sen. Kennedy) 

(supporting statute expanding victims' rights to participate in all phases of process); id at 

S8269 (statement of Sen. Patrick Leahy) (supporting Crime Victims' Assistance Act). 

3]See Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of 

Utah s Victims' Rights Amendment, 1994 UTAH L. REv. 1373, 1394-96 (collecting citations 

to states granting victims a right to be heard). 

34See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. 

REv. 361, 364 (1996). 

]lSee id. at 390-93. 

]·See id. at 392-93. In a recent conversation, Professor Bandes stated that though her 

article focused on the capital context, she did not intend to imply that victim impact statements 

ought to be admissible in noncapital cases. Indeed, based on the proponents' argument that 

victim impact statements by relatives and friends are needed because the homicide victim is, 

by definition, unavailable, she believes such statements would seem even less defensible in 

nonhomicide cases. Personal Communication with Susan Bandes, Professor of Law, DePaul 

University (Dec. 14, 1998). This extension of her argument seems unconvincing, as the case 

for excluding victim statements is even weaker for noncapital cases. Not only are noncapital 

cases generally less fraught with emotion, but the sentence is typically imposed by ajudge, who 

can sort out any improper aspects of victim statements. For this reason, even when victim 

impact testimony was denied in capital cases to juries, courts often concluded that judges could 

hear the same evidence. See Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987); 

State v. Beaty, 762 P.2d 519, 531 (Ariz. 1988); State V. Card, 825 P.2d 1081, 1089 (Idaho 

1991); People v. Johnson, 594 N.E.2d 253, 270 (Ill. 1992); State v. Post, 513 N.E.2d 754, 759 

(Ohio. 1987). It is also hazardous to generalize about such testimony given the vast range of 

varying circumstances presented by non capital cases. See generally Stephen J. Schulhofer, The 

Trouble with Trials; the Trouble with Us, 105 YALE L.J. 825, 848-49 (1995) (noting 

differences between victim participation in capital and noncapital sentencings and concluding 

that "wholesale condemnation of victim participation under all circumstances is surely 

Heil10nline -- 1999 Utah L. Rev. 4X7 1999 
69 

488 UTAH LAW REVIEW [1999:479 

Professor Bandes's objection is important to consider carefully because 

it presents one of the most thoughtfully developed cases against victim 

impact statements?7 Her case, however, is ultimately unpersuasive. She 

agrees that capital sentencing decisions ought to rest, at least in part, on the 

harm caused by murderers.38 She explains that, in determining which 

murderers should receive the death penalty, society's "gaze ought to be 

carefully fixed on the harm they have caused and their moral culpability for 

that harm.,,39 Bandes then contends that victim impact statements divert 

sentencers from that inquiry to "irrelevant fortuities" about the victims and 

their families. 40 But in moving on to this point, she apparently assumes that 

a judge or jury can comprehend the full harm caused by a murder without 

hearing testimony from the surviving family members. 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.41 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, 

1995.42 Kight's compelling book is not unique, as equally powerful accounts 

unwarranted"). 

37Several other articles have also focused on and carefully developed a case against 

victim impact statements. See, e.g., Donald J. Hall, Victims' Voices in Criminal Court: The 

Needfor Restraint, 28 AM. CRlM. L. REv. 233,235 (1991) (arguing that "the fundamental evil" 

associated with victim statements is "disparate sentencing of similarly situated defendants"); 

Lynne N. Henderson, The Wrongs of Victim 's Rights, 37 STAN. L. REv. 937, 986-1006 (1985) 

(outlining why goals of criminal statements do not support victim participation in sentencing). 

Because Professor Bandes's article is the most current, I focus on it here as exemplary of the 

critics' position. 

38See Bandes, supra note 34, at 398. 

39ld. (emphasis added). 

,old. 

"See, e.g., Booth v. Maryland, 482 U.S. 496, 509-15 (1987) (attaching impact statement 

to opinion); United States v. Nichols, No. 96-CR-68, 1997 WL 790551, at ** 1-47 (D. Colo. 

Dec. 29,1997) (various victim impact statements at sentencing of Terry Nichols); United States 

v. McVeigh, No. 96-CR-68, 1997 WL 296395, at **1-53 (D. Colo. June 5,1997) (various 

victim impact statements at sentencing of Timothy McVeigh); A Federal Judge Speaks Out for 

Victims, AM. LAWYER, Mar. 20,1995, at4 (statement by Federal Judge Michael Luttig at the 

sentencing of his father's murderers). 

"See MARSHA KIGHT, FOREVER CHANGED: REMEMBERlNG OKLAHOMA CITY, APRIL 19, 

1995 (1998). 

Heil10nline .. 1999 Utah L. Rev. 4XX 1999 
70 

No.2] BARBARlANS AT THE GATES? 489 

from the family of Ron Goldman.~3 children of Oklahoma City,44 Alice 

Kaminsky,45 George Lardner ]r.;6 Dorris Porch and Rebecca Easley,47 Mike 

Reynolds,48 Deborah Spungen,~9 John Walsh,50 and Marvin WeinsteiIfI make 

all too painfully clear. Intimate third-party accounts offer similar insights 

about the generally unrecognized, yet far-ranging consequences of 

homicide.52 

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 the victim impact 

statement at issue in Payne v. Tennessee,53 a statement from Mary Zvolanek 

about her daughter's and granddaughter'S deaths and their effect on her threeyear-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 

43See THE FAMILY OF RON GOLDMAN, HIS NAME IS RON: OUR SEARCH FOR JUSTICE 

(1997). 

"See NANCY LAMB AND CHILDREN OF OKLAHOMA CITY, ONE APRIL MORNING: CHILDREN 

REMEMBER 1l-IE OKLAHOMA CITY BOMBING (1996). 

45See ALICE R. KAMINSKY, THE VICTIM'S SONG (1985). 

4·See GEORGE LARDNER JR., THE STALKING OF KRISTIN: AFA1l-IER INVESTIGATES THE 

MURDER OF HIS DAUGHTER (1995). 

47 See DORRIS D. PORCH & REBECCA EASLEY, MURDER IN MEMPHIS: THE TRUE STORY OF 

A FAMIL y's QUEST FOR JUSTICE (1997). 

"See MIKE REYNOLDS & BILL JONES, THREE STRIKES AND YOU'RE OUT •.• A PROMISE 

TO KIMBER: THE CHRONICLE OF AMERICA'S TOUGHEST ANTI-CRIME LAW (I 996). 

49See DEOBRAH SPUNGEN, AND I DON'T WANT TO LIVE THIS LIFE (1983), 

sOSee JOHN WALSH, TEARs OF RAGE: FROM GRIEVING FATHER TO CRUSADER FOR JUSTICE: 

THE UNTOLD STORY OF THEAoAM WALSH CASE (1997). Professor Henderson describes Walsh 

as "preaching [a] gospel of rage and revenge." Henderson, supra note 14, at [18]. This seems 

to me to misunderstand Walsh's efforts, which Walsh has explained as making sure that his son 

Adam "didn't die in vain." WALSH, supra. at 305. Walsh's Herculean efforts to establish the 

National Center for Missing and Exploited Children, see id. at 131-58, is a prime example of 

neither rage nor revenge, but rather a desirable public policy reform springing from a tragic 

crime. 

SISee MILTON J. SHAPIRO WITH MARVIN WEINSTEIN, WHO WILL CRY FOR STACI'? THE 

TRUE STORY OF A GRIEVING FATHER'S QUESTFOR JUSTICE (1995). 

S2See, e.g., GARY KiNDER, VICTIM 41-45 (1982); JANICE HARRIS LORD, No TIME FOR 

GOODBYES: COPING WITH SORROW, ANGER AND INJUSTICE AFTER A TRAGIC DEATH xii (4th ed. 

1991); SHELLEYNEIDERBACH, INVISIBLE WOUNDS: CRIME VICTIMS SPEAK 19 (1986); DEBORAH 

SPUNGEN, HOMlCIDE: THE HIDDEN VICTIMS xix-xxiii (1998); JOSEPH W AMBAUGH, THE ONION 

FIELD 169-71 (1973). 53501 U.S. 808 (1991). 

54Bandes, supra note 34, at 361 (quoting Payne, 501 U.S. at 814-15). 

Heill0nline -- 1999 Utah L. Rev. 4X9 1999 
71 

490 UTAH LAW REVIEW [1999: 479 

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. Why is it "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, is 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 undoubtedly will hamper a defendant's efforts to escape a 

capital sentence. But given that loss is a proper consideration for thejury, 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 ofthe crime.59 Victim impact statements are thus easily justified 

because they provide the jury with a full picture of the murder's consequences.60 

"/d. at 36I. 

S./d. at 40 I. 

"See QrnlSTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 4.1 0, at 194 (2d 

ed.1999). 

SSC! Edna Erez, Who's Afraid of the Big Bad Victim? Victim Impact Statements as 

Victim Empowerment and Enhancement of Justice, CRIM. L. REv. (forthcoming 1999) 

("lL]egal professionals [in South Australia] who have been exposed to [victim impact 

statements] have commented on how uninformed they were about the extent, variety and 

longevity of various victimizations, how much they have learned ... about the impact of crime 

on victims .... "). 

"See Brooks Douglass, Oklahoma's Victim Impact Legislation: A New Voicefor Victims 

and Their Families: A Response to Professor Coyne, 46 OKLA. L. REv. 283,289 (1993) 

(offering example of jury denied truth about full impact of a crime). 

60In addition to allowing assessment of the harm of the crime, victim impact statements 

are also justified because they provide oOa quick glimpse of the life which a defendant chose to 

extinguish." Payne, 501 U.S. at 822 (internal quotation omitted). In the interests of brevity, I 

will not develop such an argument here. nor will I address the more complicated issues 

surrounding whether a victim's family members may otTer opinions about the appropriate 

sentence for a defendant. See id. at 830 n.2 (reserving this issue); S. REP. No. 105-409, at 

28-29 (1998) (indicating that Amendment does not alter laws precluding victim opinion as to 

proper sentence). 

Heill0nline -- 1999 Utah L. Rev. 490 1999 
72 

No.2] BARBARIANS AT THE GATES? 491 

Bandes also contends that impact statements "may completely block" the 

ability of the jury to consider mitigation evidence.61 It is hard to assess this 

essentially empirical assertion, because Bandes does not present direct 

empirical support.62 Clearly many juries decline to return death sentences 

even when presented with powerful victim impact testimony, with Terry 

Nichols's life sentence for conspiring to set the Oklahoma City bomb a 

prominent example. Indeed, one recent empirical study of decisions from 

jurors w.ho actually served in capital cases found that facts about adult 

victims "made little difference" in death penalty decisions.63 A case might be 

6'Bandes, supra note 34, at 402. 

62The only empirical evidence Bandes discusses concerns the alleged race-of-the-victim 

effect found in the Baldus study of Georgia capital cases in the 1980s. See id. This study, 

however, sheds no direct light on the effect of victim impact statements on capital sentencing, 

as victim impact evidence apparently was not, and indeed could not have been at that time, one 

of the control variables. See GA. CODE ANN. §§ 17-10-1.1 to -1.2 (1986)(barring victim impact 

testimony). Had victim impact evidence been one of the variables, it seems likely that any raceof-the-victim effect would have been reduced by giving the jurors actual information about the 

uniqueness and importance ofthe life taken, thereby eliminating the jurors' need to rely on 

stereotypic, and potentially race-based, assumptions. In any event, there is no need to ponder 

such possibilities at length here because the race-of-the-victim "effect'" disappeared when 

important control variables were added to the regression equations. See McCleskey v. Zant, 

580 F. Supp. 338, 366 (D. Ga. 1984) (concluding that Uthere is no support for a proposition 

that race has any effect in any single case"), ajJ'd in part and rev 'd in part, 753 F.2d 877 (II th 

Cir. 1986), ajJ'd, 481 U.S. 279 (1987). 

63Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors 

Think?, 98 COLUM.L. REv. 1538, 1556 (1998). The study concluded that jurors would be more 

likely to impose death if the victim was a child, and that "extreme caution" was warranted in 

interpreting its findings. !d. It should be noted that the study data came from cases between 

roughly 1986 and 1993, when victim impact statements were not generally used. See id. at 

1554. However, it is possible that a victim impact statement may have been introduced in a few 

of the cases in the data set after the 1991 Payne decision. Electronic Mail from Stephen P. 

Garvey, Professor, Cornell Law School, to Prof. Paul G. Cassell (Feb. II. 1999) (on file with 

author). 

Garvey's methodology of surveying real juries about real cases seems preferable to 

relying on mock jUly research, which suggests that victim impact statements may affect jurors' 

views about capital sentencing. See Edith Greene, The Many Guises o/Victim Impact Evidence 

and Effects on Jurors' Judgments, PSYCHOL., CRIME & L. (forthcoming 1999) (discussing 

mock jury research); Edith Greene & Heather Koehring, Victim Impact Evidence in Capital 

Cases: Does the Victim's Character Malter?, 28 J. APPLIED SOC. PSYCHOL. 145, 154 (1998) 

(finding support for hypothesis that victim impact evidence would affect jurors' capital 

sentencing decisions); James Luginbuhl & Michael Burkhead, Victim Impact Evidence in 

Capital Trial: Encouraging Votes/or Death, 20 AM. J. CRIM. JUST. 1,9 (1995) (finding 

support for hypothesis that victim impact evidence would increase jurors' votes for death 

penalty). But c/. Ronald Mazzella & Alan Feingold, The Effects 0/ Physical Attractiveness, 

Race, Socioeconomic Status, and Gender 0/ Defendants and Victims on Judgments 0/ Mock 

Jurors: A Meta-Analysis, 1994 J. ApPLIED SOC. PSYCHOL. 1315, 1319-30 (1994) (finding, 

through meta-analysis of previous research, that effects of victim characteristics on juror's 

Heill0nline .. 1999 Utah L. Rev. 491 1999 
73 

492 UTAH LAW REVIEW [1999: 479 

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 198'f4 and then 

rose when the Court reversed itself a few years later.6s As discussed in greater 

length in Appendix B,66 however, this conclusion is far from clear and, in any 

event, the effect on likelihood of a death sentence would be, at most, 

marginal. 

The empirical evidence in noncapital cases also finds little effect on 

sentence severity. For example, a study in California found that "[t]he right 

to allocution at sentencing 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 injeopardy."68 A careful scholar recently reviewed comprehensively all of the available evidence in this country and elsewhere, and 

concluded that "sentence severity has not increased following the passage of 

[victim impact] legislation.'069 It is thus unclear why we should credit 

judgments were generally inconsequential). Whether mockjul)' simulations capture real-world 

effects is open to question generally. See Paul G. Cassell, The Guilty and the "Innocent": An 

Examination of Alleged Cases ofWrongfiti Conviction from False Confessions, 22 HARV. J.L. 

& PuB. POL'y 523, 600 (1999) (collecting evidence on this point); see also Free v. Peters, 12 

F.3d 700, 705-06 (7th Cir. 1994) (en banc) (finding that there is little "a priori reason" to think 

that results of examination setting offer insight to abilities of real juries who spend days and 

weeks becoming familiar with case). The concerns about the realism of mock jul)' research 

apply with particular force to emotionally charged death penalty verdicts. See Mark Costanzo 

& Sally Costanzo, Jury Decision Making in the Capital Penalty Phase, 16 LAW & HUM. 

BEHAV. 185, 191 (1992) ("[T]he yel)' nature of the [death] penalty decision may render it an 

inappropriate topic for jul)' simulation studies."). 

"'See Booth, 482 U.S. at 509 (concluding that introduction of impact statement in 

sentencing phase of capital murder violates Eighth Amendment). 

·;See Payne, 501 U.S. at 830 (overruling Booth). 

"See infra Appendix B. 

·'NAT'L INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, EXECUTIVE SUMMARY. VICTIM 

ApPEARANCES AT SENTENCING HEARINGS UNDER THE CALIFORNIA VICTIMS' BILL OF RIGHTS 

61 (1987) [hereinafter NIJ SENTENCING STUDY]. 

·'Robert C. Davis & Barbara E. Smith, The Effects of Victim Impact Statements on 

Sentencing Decisions: A Test in an Urban Selling, II JUST. QUART. 453, 466 (1994); accord 

ROBERT C. DAVIS ET AL., VICTIM IMPACT STATEMENTS: THEIR EFFECTS ON COURT OUTCOMES 

AND VICTIM SATISFACTION 68 (1990) (concluding that result of study "Iend[s] support to 

advocates of victim impact statements" since no evidence indicates that these statements "putO 

defendants in jeopardy [or] result in harsher sentences"). 

·'Erez, supra note 58, at 5; accord Edna Erez, Victim Participation in Sentencing: And 

the Debate Goes On . .. ,3 INT'L REv. OF VICTIMOLOGY 17,22 (1994) [hereinafter Erez, 

Victim Participation] ("Research on the impact of victims' input on sentencing outcome is 

inconclusive. At best it suggests that victim input has only a limited effect."). For further 

Heill0nIine -- 1999 Utah L. Rev. 492 1999 
74 

No.2] BARBARIANS AT THE GATES? 493 

Bandes's 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" jul}' understanding, but rather presented enhanced 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]fthe 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 JUI}', the cost of capital punishment relative to the 

benefit.,,70 Correcting this misimpression is not distorting the decisionmaking 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 

discussion of the effect of victim impact statements, see, for example, Edna Erez & Pamela 

Tontodonato, The Effeci of Vic lim Parlicipalion in Sentencing on Senlence OUlcome, 28 

CRIMINOLOGY 451. 467 (1990); SUSAN W. HILLENBRAND & BARBARA E. SMITH, VICTIMS 

RIGHTS LEGISLATION: AN ASSESSMENT OF ITS IMPACT ON CRIMINAL JUSTICE PRACTITIONERS 

AND VICTIMS, A STUDY OF THE AMERICAN BAR ASSOCIATION'S CRIMINAL JUSTICE SECTION 

VICTIM WITNESS PROJECT 159 (1989). See also Edna Erez & Leigh Roeger, The Effeci of 

Viclim Impaci Sialements on Senlencing Pal/erns and Oulcomes: The Auslralian Experience, 

23 J. CRiM. JUSTICE 363,375 (1995) (Australian study finding no support for claim that impact 

statements increase sentence severity); R. Douglas et aI., Viclims of Efficiency: Tracking Viclim 

Informalion Through Ihe Syslem in ViCloria, AlISlralia, 3 INT'L REv. VICTIMOLOGY 95, 103 

(1994) (concluding that greater information about nature of victimization makes little 

difference in sentencing); Edna Erez & Linda Rogers, Victim Impaci Sialemenis and 

Senlencing OUlcomes and Processes: The Perspeclives of Legal Professionals, 39 BRIT. J. 

CRIMINOLOGY 216, 234-35 (1999) (same). 

7"David D. Friedman. Should Ihe Characlerislics of Viclims and Criminals Counl?: 

Payne v. Tennessee and Two Views ofEfficienl Punishmenl, 34 B.C. L. REv. 731,749 (1993). 

7ISee id. at 750 (reasoning that Payne rule "can be interpreted ... as a way of reminding 

the jury that victims, like criminals, are human beings with parents and children, lives that 

matter to themselves and others"). 

72See Erez & Tontodonato, supra note 69, at 469. 

7lSee Erez, Perspeclives of Legal Professionals, supra note 69, at 235 (discussing South 

Australian study); Edna Erez. Vic lim Parlicipalion in Sentencing: Rheloric and Reality, 18 J. 

CRiM. JUSTICE 19, 29 (1990). 

Heill0nline -- 1999 Utah L. Rev. 491 1999 
75 

494 UT AH LAW REVIEW [1999: 479 

Finally, Bandes and other critics argue that victim impact statements 

result in unequal justice.74 Justice Powell made this claim in his sinceoverturned 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.,,7S 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 that 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.7B 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/9 

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 ... [that] the evidence and argument be 

reduced to the lowest common denominator.',so 

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.SI Victims and the public generally 

7·See, e.g., Bandes, supra note 34, at 408 (arguing that victim impact statements play on 

our pre-conscious prejudices and stereotypes). 

"Booth, 482 U.S. at 505. overruled in Payne v. Tennessee, 501 U.S. 808,830 (1991). 

7·See Paul Gewirtz, Victims and I'oyellrs at the Criminal Trial, 90 Nw. U. L. REv. 863, 

882 (1996) ("'If courts were to exclude categories of testimony simply because some witnesses 

are less articulate than others, no category of oral testimony would be admissible."). 

71Payne, 501 U.S. at 826. 

"See Boyde v. California. 494 U.S. 370, 382 n.5 (1990). See generally Susan N. 

Cornille, Commcnt, Retribution's "Harm" Component and the Victim Impact Statement: 

Finding a Workable Model. 18 U. DAYTON L. REV. 389, 416-17 (1993) (discussing Boyde). 

"Cf Walton v. Arizona, 497 U.S. 639, 674 (1990) (Scalia, L, concurring) (criticizing 

decisions allowing such varying mitigating evidence on equality grounds). 

'"Booth, 482 U.S. at 518 (White, J., dissenting). 

"See Gewirtz, sllpra note 76. at 880-82 (developing this position); see also Beloof, 

sllpra note 9, at 291 (noting that this value is part of third model of criminal justice); 

PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, FINAL REpORT 16 (1982) (for laws to be 

Heill0nIine .. 1999 Utah L. Rev. 494 1999 
76 

No.2] BARBARlANS AT THE GATES? 495 

perceive great unfairness in a sentencing system with "one side muted.':82 The 

Tennessee Supreme Court stated the point bluntly in its decision in Payne, 

explaining that "[i]t is an affront to the civilized members of the human race 

to say that at sentencing in a capital case, a parade of witnesses may praise 

the background, character and good deeds of Defendant . . . without 

limitation as to relevancy, but nothing may be said that bears upon the 

character of, or the harm imposed, upon the victims.':63 With simplicity but 

haunting eloquence, a father whose ten-year-old daughter, Staci, was 

murdered, made the same point.84 Before the sentencing phase began, Marvin 

Weinstein asked the prosecutor for the opportunity to speak to the jury 

because the defendant's mother would have the chance to do SO.85 The 

prosecutor replied that Florida law did not permit this.86 Here was Weinstein's response 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 sit there 

and let the jury see her cry for him while I was barred.87 ... 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?88 

There is no good answer to this question,89 a fact that has led to a change in 

the law in Florida and, indeed, all around the country. Today the laws ofthe 

overwhelming majority of states admit victim impact statements in capital 

and other cases.90 These prevailing views lend strong support to the 

respected, they must be just-not only to accused, but to victims as well). 

B2Eoo/h, 482 U.S. at 520 (Scalia, J., dissenting); accord PRESIDENT'S TASK FORCE ON 

VICTIMS OF CRIME, FINAL REpORT 77 (1982); Gewirtz. supra note 76, at 825-26. 

SJTennessee v. Payne, 791 S.W.2d 10, 19 (1990), alf'd, 501 U.S. 808 (1991). 

S4See SHAPIRO, supra note 51, at 215. 

s'See id. at 215-16. 

S6See id. 

B7Weinstein was subpoenaed by the defense as a witness and therefore required to sit 

outside the courtroom. See id. at 215-16 . 

• BId. at 319-20 . 

• 9 A narrow, incomplete answer might be that neither the defendant's mother nor the 

victim's father should be permitted to cry in front ofthejUl)'. But assuming an instruction from 

the judge not to cry, the question would still remain why the defendant's mother could testify, 

but not the victim's father. 

9OSee, e.g., ARIz. REv. STAT. §§ 13-44 I O(C), -4424, -4426 (1989); MD. CODE art. 41, § 

4-609(d) (1993); N.J. STAT. ANN. § 2C:II-3c(6) (1995): UTAH CODE ANN. § 76-3-207(2) 

(1998). See generally Payne, SOl U.S. at 821 (finding that Congress and most states allow 

victim impact statements); State v. Muhammad, 678 A.2d 164, 177-78 (N.J. 1996) (collecting 

Heill0nline -- 1999 Utah L. Rev. 495 1999 
77 

496 UTAH LAW REVIEW [1999: 479 

conclusion that equal justice demands the inclusion of victim impact 

statements, not their exclusion. 

These arguments sufficiently dispose of the critics' main contentions.91 

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.92 As Professor Douglas Beloofhas 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.93 This trauma stems 

state cases upholding victim impact evidence in capital cases). These laws answer Bandes's 

brief allusion to the principle of nulla poena sine lege (the requirement of prior notice that 

particular conduct is criminal). See Bandes, supra note 34, at 396 n.I77. Because murderers 

are now plainly on notice that impact testimony will be considered at sentencing, the principle 

is not violated. Murderers can also fully foresee the possibility of victim impact testimony. 

Murder is always committed against "a 'unique' individual. and harm to some group of 

survivors is a consequence of a successful homicidal act so foreseeable as to be virtually 

inevitable." Payne, 501 U.S. at 838 (Souter, 1., concurring). Moreover. it is unclear the extent 

to which nulla poena sine lege is designed to regulate sentencing decisions. The principle is 

one that "condemns judicial crime creation," Bynum v. State, 767 S. W.2d 769, 773 n.5 (Tex. 

Crim. App. 1989), but not the crafting of appropriate penalties for a previously defined crime 

like capital murder. 

91Professor Bandes and others also have suggested that the admission of victim impact 

statements would lead to offensive mini-trials on the victim's character. See, e.g., Bandes, 

supra note 34, at 407-08. However, a recent survey of the empirical literature concludes that 

"[c]oncem that defendants would challenge the content of [victim impact statements] thereby 

subjecting victims to unpleasant cross examination on their statements has also not materialized." Erez, supra note 58, at 6. In neither the McVeigh trial nor the Nichols trial for example, 

did aggressive defense attorneys cross-examine the victims at any length about the impact of 

the crime. 

92For general discussion of the harms caused by disparate treatment, see LINDA E. 

LEDRAY, RECOVERING fROM RAPE 125 (2d ed. 1994) (noting that it is important in healing 

process for rape victims to take back control from rapist and to focus their anger towards him); 

LEE MADIGAN & NANCY C. GAMBLE, THE SECOND RAPE: SOClcl'Y'S CONTINUED BETRAYAL OF 

THE VICTIM 97 (1989)(noting that during arraignment, survivors "first realized that it was not 

their trial, [and] that the attacker's rights were the ones being protected."): l3eloof, supra note 

9, at 294-96 (explaining that victims are exposed to two types of harms: the first from crime 

itself, and the second, from criminal process); Deborah P. Kelly, l'iclims. 34 WAYNE L. REv. 

69, 72 (\987) (noting that "victims wantO more than pity and politeness; they wantD to 

participate"); Marlene A. Young, A Constitutional Amendment/or l'ictims a/Crime: The 

Victims' Perspective, 34 WAYNE L. REv. 51, 58 (1987) (discussing ways in which victims feel 

aggrieved from unequal treatment). 

"'See generally SPUNGEN, supra note 52, at 10 (explaining concept of secondary 

victimization); DOUGLAS E. BELOOF. Constilutional Civil Rights o/Crime Victim Participation: The Emergence o/Secondary Harm as a Rational Principle, in VICTIMS IN CRIMINAL 

Heill0nline .. 1999 Utah L. Rev. 496 1999 
78 

No.2] BARBARIANS AT THE GATES? 497 

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.'>94 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 crimerelated psychological harm.'tl5 On the other hand, there is mounting evidence· 

that "having a voice may improve victims' mental condition and welfare.,,96 

For some victims, making a statement helps restore balance between 

themselves and the offenders.97 Others may consider it part of a just process 

or may want "to communicate the impact of the offense to the offender.,,98 

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.99 

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. 

PROCEDURE 10-18 (1999) (explaining concept of secondary harm);. 

"'Task Force on the Victims of Crime and Violence, Executive Summary: Final Report 

o/the APA Task Force on the Victims o/Crime and Violence, 40 AM. PSYCHOLOGIST 107, 109 

(1985). 

95Dean O. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in 

Criminal Proceedings/or Victims: Potential Effects on Psychological Functioning, 34 WAYNE 

L. REV. 7, 21 (1987) (collecting evidence on this point); see also Ken Eikenberry, The 

Elevation o/Victims' Rights in Washington State: ConstilZltional Status, 17 PEPP. L. REv. 19, 

26-32 (1989) (studying positive impacts of Washington's victims' rights constitutional 

amendment); Erez, supra note 58, at 8-10 ("The cumulative knowledge acquired from research 

in various jurisdictions ... suggests that victims often benefit from participation and input."); 

Jason N. Swensen, Survivor Says MeasW"e Would DignifY Victims, THE DESERET NEWS (Salt 

Lake City), Oct. 2 I, 1994, at B4 (noting anguish widow suffered when denied chance to speak 

at sentencing of husband's murderer). 

"'Erez, supra note 58, at 10. 

"See id. 

981d. at 10; see also S. REp. No. 105-409, at 17 (1998) (finding that victims' statements 

have important "cathartic" effects). 

"'See Erez, supra note 58, at 10 ("[f]he majority of victims of personal felonies wished 

to participate and provide input, even when they thought their input was ignored or did not 

affect the outcome of their case. Victims have multiple motives for providing input, and having 

a voice serves several functions for them .... ") (internal footnote omitted). 

Heil10nline -- 1999 Utah L. Rev. 497 1999 
79 

498 UTAH LAW REVIEW [1999: 479 

2. The Righi to Be Present at Trial 

The allegation that the Amendment will impair defendants' rights is 

most frequently advanced in connection with the victim's right to be present 

at trial. lOo The most detailed and careful explication of the argument is 

Professor Mosteller's, advanced in this Symposium and elsewherelOl and 

recently relied upon by the dissenting senators of the Judiciary Committee.102 

In brief, Mosteller believes that fairness to defendants requires that victims 

be excluded from the courtroom, at least in some circumstances, to avoid the 

possibility that they might tailor their testimony to that given by other 

witnesses:03 While I admire the clarity and doggedness with which Mosteller 

has set forth his position, I respectfully disagree with his conclusions for 

reasons to be articulated at length e1sewhere: 04 Here it is only necessary to 

note that even this strong opponent of the Amendment finds himself agreeing 

with the value underlying the victim's right. He writes: "Many victims have 

a special interest in witnessing public proceedings involving criminal cases 

that directly touched their lives."los This view is widely shared. For instance, 

the Supreme Court has explained that "[t]he victim of the crime, the family 

of the victim, [and] others who have suffered similarly ... have an interest 

in observing the course of a prosecution."I06 Victim concern about the 

prosecution stems from the fact that society has withdrawn "both from the 

victim and the vigilante the enforcement of criminal laws, but [it] cannot 

erase from people's consciousness the fundamental, natural yearning to see 

justice done-or even the urge for retribution."lo7 

Professor Mosteller also seems to suggest that defendants currently have 

no constitutional right to exclude victims from trials, meaning that his 

H"'Technically. the right is "not to be excluded." See infra notes 136-39 and accompanying text (explaining reason ror this formulation). 

101 See Mosteller. Unnecessary Amendment, supra note 13, at 457-69; see also Mosteller, 

Recasting the BailIe. supra note 13, at 1698-1704. 

IO'See S. REP. No. 105-409, at 66 8: n.44 (1998) (citing Mosteller). 

103See Mosteller, Unnecessary Amendment, supra note 13, at 465 (finding that in specific 

situations. derendant's "due process right to a rair trial may require exclusion or [victim-] 

witnesses"). 

1f"See Paul G. Cassell & Douglas E. Beloof, The Victim's Right to Attend the Trial 

10--18 (1999)(working manuscript, on file with author) (responding to Mosteller's view that 

victim's presence in courtroom infringes on defendant's rights). 

IO'Mosteller. Recasting the BailIe, supra note 13, at 1699. 

HI·Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, 1., concurring in 

part and dissenting in part). 

101Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555. 571 (1980) (plurality opinion); 

see also Pizzi. supra note 10, at [4] (noting importance of victim's right to attend trials). 

Heil10nline -- 1999 Utah L. Rev. 49X 1999 
80 

No.2] BARBARIANS AT THE GATES? 499 

argument rests purely on policy.IDS Mosteller's policy claim is not the general 

one that most victims ought to be excluded, but rather the much narrower one 

that "victims' rights to attend ... proceedings should be guaranteed unless 

their presence threatens accuracy and fairness in adjudicating the guilt or 

innocence of the defendant.",o9 On close examination, it turns out that, in 

Mosteller's view, victims' attendance threatens the accuracy of proceedings 

not in a typical criminal case, but only in the atypical case of a crime with 

multiple victims who are all eyewitness to the same event and .who thus might 

tailor their testimony if allowed to observe the trial together.llo This is a rare 

circumstance indeed, and it is hard to see the alleged disadvantage in this 

unusual circumstance outweighing the more pervasive advantages to victims 

in the run-of-the-mine cases:" Moreover, even in rare circumstances of 

multiple victims, other means exist for dealing with the tailoring issue. For 

example, the victims typically have given pretrial statements to police, grand 

juries, prosecutors, or defense investigators that would eliminate their ability 

to change their stories effectively.1I2 In addition, the defense attorney may 

argue to the jury that victims have tailored their testimony even when they 

have not"3-a fact that leads some critics of the Amendment to conclude that 

this provision will, if anything, help defendants rather than harm them. The 

dissenting Senators, for example, make precisely this helps-the-defendant 

IOSSee Mosteller, Recasting the Battle, supra note 13, at 170 I n.29 ("I question whether 

the practice [permitting mUltiple victim-eyewitnesses to remain in the courtroom and hear the 

testimony of others] would violate a defendant's constitutional rights, although I acknowledge 

that the result is not entirely free from doubt."). In his article in this Symposium, Professor 

Mosteller has amplified his view somewhat, taking the position that "in extreme factual 

situations" a defendant will have a constitutional right to exclude witnesses. See Mosteller, 

Unnecessary Amendment, supra note 13, at 465. His position, however, seems to rest largely 

on policy grounds. 

I09Mosteller, Recasting the Battle, supra note 13, at 1699; see also Mosteller, 

Unnecessary Amendment, supra note 13, at 449-50 (finding that "the most important reason" 

that victims' rights are not fully enforced is lack of resources and personnel). 

lIoSee Mosteller, Recasting the Battle, supra note 13, at 1700 (arguing that, in cases of 

multiple victims, "a substantial danger exists" that victim-witnesses will be influenced during 

testimony of others); Mosteller, Unnecessary Amendment, supra note 13, at 465 (similar 

argument). 

IIISee Erez, Victim Participation. supra note 69, at 29 (criticizing tendency oflawyers 

.. to use an atypical or extreme case to make their point" and calling for public policy in t~e 

victims area to be based on more typical cases); cf Robert P. Mosteller, Book Review, Popular 

Justice, 109 HARV. L. REV. 487, 487 (1995) (critiquing George P. Fletcher's book, WITH 

JUSTICE FOR SOME: VICfIMS' RIGHTS IN CRIMINAL TRIALS (1995), for "ignor[ing] how the 

criminal justice system operates in ordinary" cases). 

JJ2See Cassell. supra note 104 (explaining how prior statements would make it difficult 

for victim to change story). 

Jl3See S. REp. No. 105-409. at 82 (1998) (additional views of Sen. Biden). 

Heil10nline _. 1999 Utah L. Rev. 499 1999 
81 

500 UTAH LA W REVIEW [1999: 479 

argument,1I4 although at another point they present the contrary harms-thedefendant claim.lIs In short, the critics have not articulated a strong case 

against the victim's right to be present. 

3. The Right to Consideration of the Victim's Interest in a Trial Free from 

Unreasonable Delay 

Opponents of the Amendment sometimes argue that giving victims a 

right to "consideration" of their interest "that any trial be free from unreasonable deJay"1I6 would impinge on a defendant's right to prepare an adequate 

defense. For example, the dissenting senators in the Judiciary Committee 

claimed that ''the defendant's need for more time could be outweighed by the 

victim's assertion of his right to have the matter expedited, seriously 

compromising the defendant's right to effective assistance of counsel and his 

ability to receive a fair triaL,,117 Similarly, Professor Mosteller advances the 

claim here that this right "also affect[s] substantial interests of the defendant 

and may even alter the outcomes of cases." 118 

These arguments fail to consider the precise scope of the victim's right 

in question. The right the Amendment confers is one to "consideration ofthe 

interest of the victim that any trial be free from unreasonable delay.,,119 The 

opponents never seriously grapple with the fact that, by definition, all of the 

examples that they give of defendants legitimately needing more time to 

prepare would constitute reasons for "reasonable" delay. Indeed, it is 

interesting to note similar language in the American Bar Association's 

directions to defense attorneys to avoid "unnecessary delay" that might harm 

victims.120 The victim's right, moreover, is to "consideration" of the victim's 

interests. The proponents of the Amendment could not have been clearer 

114See id. at 61 (minority views ofSens. Leahy, Kennedy, and Kohl) ("[f]here is also the 

danger that the victim's presence in the courtroom during the presentation of other evidence 

will cast doubt on her credibility as a witness .... Whole cases ... may be lost in this way."). 

IISSee id. at 65 (minority views of Sens. Leahy, Kennedy, and Kohl) ("Accuracy and 

fairness concerns may arise ... where the victim is a fact witness whose testimony may be 

influenced by the testimony of others."). 

II·SJ. Res. 3, 106th Congo § I (1999). 

117S. REP. No. 105-409, at 66 (1998) (minority views of Sens. Leahy, Kennedy, and 

Kohl). 

'18Mosteller, Unnecessary Amendment, supra note 13, at 473; see alsa Mosteller, 

Recasting the Battle, supra note 13, at 1706--08 ("rL legislation enacted under § 3 of 

the ... Amendment to enforce the right to final disposition free from unreasonable delay may 

conflict with the right to effective assistance of counsel and with basic due process rights."). 

119SJ. Res. 3, 106th Congo § 1(1999) . 

. loA.B.A., SUGGESTED GUIDELINES FOR REDUCING ADVERSE EFFECTS OF CASE 

CONTINUANCES AND DELAYS ON CRIME VICTIMS AND WITNESSES 4 (1985). 

Heil10nline -- 1999 Utah L. Rev. 500 1999 
82 

No.2] BARBARlANS AT THE GATES? 501 

about the intent to allow legitimate defense continuances. As the Judiciary 

Committee explained: 

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 oftirne to prepare. The right would not require or pennit 

a judge to proceed to trial if a criminal defendant is not adequately 

represented by counseJ.!2! 

Such a right, while not treading on any legitimate interest of a defendant, 

will safeguard vital interests of victims. Victims' advocates have offered 

repeated examples of abusive delays by defendants designed solely for 

tactical advantage rather than actual preparation of the defense of a case.!22 

Abusive delays appear to be particularly common when the victim of the 

crime is a child, for whom each day up until the case is resolved can seem 

like an etemity.123 Such cases present a strong justification for this provision 

in the Amendment. Nonetheless, writing in this Symposium, Professor 

Mosteller advances the proposition that this right "should undergo rigorous 

debate on [its] merits and should not sl ide in under the cover of a campaign 

largely devoted to giving victims' rights to notice and to participate in 

criminal proceedings.,,!24 This seems a curious argument, as the victims 

community has tried to debate this right "on its merits" for years. As long ago 

as 1982, the President's Task Force on Victims of Crime offered suggestions 

for protecting a victim's interest in a prompt disposition of the case.!25 In the 

years since then, it has been hard to find critics of victims' rights willing to 

contend, on the merits, the need for protecting victims against abusive 

delay.126 If anything, the time has arrived for the opponents of the victim's 

I2IS. REp. No. 105-409, at 3 (I 998); see also 1998 Senate Judiciary Comm. Hearings, 

supra note 26, at 37-38 (statement of Prof. Paul Cassell) (discussing filctors that could be used 

to evaluate victims' claims of unreasonable delay). 

IllSee, e.g., 1997 SenateJudiciaryComm. Hearings. supra note 6, at 115-16 (statement 

of Paul G. Cassell, Professor of Law, University of Utah College of Law) (describing such a 

case); see also Paul G. Cassell & Evan S. Strassberg, Evidence 0/ Repeated Acts 0/ Rape and 

Child Molestalion: Re/orming Utah Law to Permit the Propensity Inference, 1998 UTAH L. 

REv. 145, 146 (discussing case where defendant delayed trial three years by refusing to hire 

counsel and falsely claiming indigency). 

12JSee Cassell, supra note 33, at 1402-05 (providing illustration). 

mMosteller, Unnecessary Amendment, supra note 13, at 473. 

125 See PRESIDEI'IT'S TASK FORCE ON VICTIMS OF CRIME. FINAL REpORT 76 (1982). 

126Cf Henderson, supra note 14, at 419 (conceding that "reasonableness" language might 

"allow judges to ferret out instances of dilatory tactics while recognizing the genuine need for 

time," but concluding that constitutional amendment is not needed to confer this power on 

Heill0nline -- 1999 Utah L. Rev. 501 1999 
83 

502 UTAH LAW REVIEW [1999: 479 

right to proceedings free from unreasonable delay to address the serious 

problem of unwarranted delay in criminal proceedings or to concede that, 

here too, a strong case for the Amendment exists. 

B. Prosecution-Oriented Challenges to the Amendment 

Some objections to victims' rights rest not on alleged harm to defendants' interests but rather on alleged harm to the interests of the prosecution. 

Often these objections surprisingly come from persons not typically 

solicitous of prosecution concerns, I27 suggesting that some skepticism may 

be warranted. In any event, the arguments lack foundation. 

[t is sometimes argued that only the State should direct criminal 

prosecutions. This claim might have some bite against a proposal to allow 

victims to initiate or otherwise control the course of criminal prosecutions,128 

but it has little force against the proposed amendment. The Victims' Rights 

Amendment assumes a prosecution-directed system and simply grafts 

victims' rights onto it. Victims receive notification of decisions that the 

prosecution makes and, indeed, have the right to provide information to the 

court at appropriate junctures, such as bail hearings, plea bargaining, and 

sentencing. However, the prosecutor still files the complaint and moves it 

through the system, making decisions not only about which charges, if any, 

to file, but also about which investigative leads to pursue and which 

witnesses to call at trial. While victims can "follow[] their own case down the 

judges). 

127See, e.g., Scott Wallace, Mangling the Constitution: The Folly oJthe ['ietims' Rights 

Amendment, WASH. POST, June 28, 1996, at A21 (op-ed piece Irom special counsel with 

National Legal Aid and Defender Association warning that Amendment would harm police and 

prosecutors). 

12SSee, e.g., Peter L. Davis, The Crime Victim's "Righi" to a Criminal ProsecZltion: A 

Proposed Model Statutefor the Governance of Private Criminal Prosecutions. 38 DiOPAUL L. 

REV. 329. 330 (\989) (proposing statute to govern private criminal prosecutions). See 

generally DOUGLAS BELOOF, VICTIMS IN CRIMINAL PROCEDURE 235-357 (1999) (comprehensively discussing current means of victim involvement in charging process). Allowing victims 

to initiate their own prosecutions is no novelty, as it is consistent with the English common-law 

tradition or private prosecutions, brought to the American colonies. See I SIR JAMES F. 

STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 493-503 (1883); Shirley S. 

Abrahamson, Redefining Roles: The Victims' Rights Movement. 1985 UTAH L. REv. 517, 

521-22; Juan Cardenas. The Crime Victim in the Proseclltorial Process. 9 HARV. J.L. & PUB. 

POL'y 359,384 (1986); Josephine Gitller, £~panding the Role oJlhe /'ictim in a Criminal 

Action: An Overview of /sSlles and Problems, I I PEP? L. REV. 117. 125-26 (1984): William 

F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the 

Victim, 13 AM. CRIM. L. REv. 649,651-54 (1976). 

Heill0nline .. 19991Jtah L. Rev. 5021999 
84 

No.2] BARBARIANS AT THE GATES? 503 

assembly line" in Professor Beloofs colorful metaphor,J29 the fact remains 

that the prosecutor runs the assembly line. This general approach of grafting 

victims' rights onto the existing system mirrors the approach followed by all 

of the various state victims' amendments, and few have been heard to argue 

that the result has been interference with legitimate prosecution interests. 

Perhaps an interferes-with-the-prosecutor objection might be refined to 

apply only against a victim's right to be heard on plea bargains, since this 

right arguably hampers a prosecutor's ability to terminate the prosecution. 

But today, it is already the law of many jurisdictions that the court must 

determine whether to accept or reject a proposed plea bargain after weighing 

all relevant interests,,3o Given that victims undeniably have relevant, if not 

compelling, interests in proposed pleas, the Amendment neither breaks new 

theoretical ground nor displaces any legitimate prosecution interest. Instead, 

victim statements simply provide more information for the court to consider 

in making its decision. The available empirical evidence also suggests that 

victim participation in the plea bargaining process does not burden the courts 

and produces greater victim satisfaction even where, as is often the case, 

victims ultimately do not influence the outcome. 131 

In addition, critics of victim involvement in the plea process almost 

invariably overlook the long-standing acceptance of judicial review of plea 

bargains. These critics portray pleas as a matter solely for a prosecutor and 

a defense attorney to work out. They then display a handful of cases in which 

the defendant was ultimately acquitted at trial after courts had the temerity 

to reject a plea after hearing from victims. These cases, the critics maintain, 

prove that any outside review of pleas is undesirable.132 The possibility of an 

I2OBeloof,supra note 9, at 296 (referring to HERBERT PACKER, THE LIMITS OF CRIMINAL 

SANCTION 163 (1968». 

J311For cogent explication of the law on this issue, see BaooF, supra note 128. at 462-88 

(1999). See also NATIONAL CONFERENCE OF THE JUDICIARY ON THE RIGHTS OF VICTIMS OF 

CRIME, U.S. DEP'T OF JUSTICE. STATEMENT OF RECOMMENDED JUDICIAL PRACTICES 10 ( 1983) 

(recommending victim participation in plea negotiations). 

IlISee, e.g .• DEBORAH BUCHNER ET AL., INS LAW, INC., EVALUATION OF THE STRUCTURED PLEA NEGOTIATION PROJECT: EXECUTIVE SUMMARY IS, 21 (I 984 ) (examining effects 

of structured plea negotiations in which judge, defendant, victim, prosecutor, and defense 

attorney all participate). 

132See, e.g .. S. REP. No. 105-409, at 60-61 (1998) (minority views of Sens. Leahy, 

Kennedy. and Kohl). 

An illustration ofthis position is found in recent testimony by former federal prosecutor 

Beth Wilkinson. She argued that if victims had been heard during the Oklahoma City bombing 

case they would have prevented a government plea agreement with Michael Fortier and hurt 

the prosecution's case against Timothy McVeigh and Teny Nichols. See Testimony of Beth A. 

Wilkinson Before the Senate JudiCiary Comm. on the Proposed Victims' Rights Amendment 

(Mar. 24. 1999) <http://www.senate.gov/-judiciary/3.2499bw.htm> (cited in Mosteller, 

Unnecessary Amendment, supra note 13, at 463 n.57). Wilkinson's argument is flawed because 

Heill0nline .. 19991Jtah L. Rev. 501 1999 
85 

504 UTAH LAW REVIEW [1999: 479 

erroneous rejection of a plea is, of course, inherent in any system allowing 

review of a plea. In an imperfect world, judges will sometimes err in rejecting 

a plea that, in hindsight, should have been accepted. The salient question, 

however, is whether as a whole judicial review does more good than 

harm-that is, whether, on balance, courts make more right decisions than 

wrong ones. Just as cases can be cited where judges possibly made mistakes 

in rejecting a plea. so too cases exist where judges rejected plea bargains that 

were unwarranted.") These reported cases of victims persuading judges to 

reject unjust pleas form just a small part of the picture, because in many other 

cases, the mere prospect of victim objection undoubtedly has restrained 

prosecutors from bargaining cases away without good reason. My strong 

sense is that judicial review of pleas by courts after hearing from victims 

more often improves rather than retards justice. The failure of the critics to 

contend on the issue of net effect and the growing number of jurisdictions 

that allow victim input" 4 is strong evidence for this conclusion. 

Another prosecution-based objection to victims' rights is that, while 

they are desirable in theory, in practice they would be unduly expensive. 135 

Here again, prominent critics must distort the language of the Amendment to 

'it assumes, without giving any good reason, that the judge would have simply rejected the plea 

if the victims had opposed it. In any event, the great majority of the victims would have 

supported the plea if the government had explained it to them. See Hearings on SJ Res. 3 

Before the Senate Comm. on the Judiciary, 106th Congo (forthcoming 1999) [hereinafter 1999 

Senate Judiciary Comm. Hearings] (statement of Marsha A. Kight, Director of Families and 

Survivors United, Oklahoma City). Moreover, Fortier's testimony was not important to 

obtaining the convictions ofMcYeigh and Nichols, as the jurors later made clear. See id. 

If anything, the handling of the Fortier plea demonstrates that even federal statutes do 

not effectively protect victims' rights. In an effort to ram the Fortier plea through, the 

prosecution did not notify the victims about it. See id. Both of these failures were apparent 

violations of federal law. See 42 U.S.c. § 10606(b)(3) (1994) (giving victims right .. to be 

notified of court proceedings"); id. § I 0606(b)(5) (giving victims right '·to confer with [thel 

attorney for the government"); see supra 1999 Senate JudiCiary Comm. Hearings (statem.:nt 

of Marsha Kight) (noting these violations offederallaw). 

13JSee, e.g., People v. Stringham, 253 Cal. Rptr. 484, 488-96 (Cal. App. 1988) (rejecting 

unwarranted plea bargain). 

13'See BELOOF, supra note 128, at 462. 

mSometimes the argument is cast not in terms of the Amendment diminishing 

prosecutorial resources. but rather victim resources. For example, Professor Henderson urges 

rejection of the Amendment on grounds that "we need to concentrate on things that aid 

recovery" by spending more on victim assistance and similar programs. Henderson, supra note 

14, at 441; see also Lynne Henderson, Co-Opting Compassion: The Federal Victim's Rights 

Amendment, lOST. THOMAS L. REV. 579, 606 (1998) (noting benefits of programs to help 

victims deal with trauma). But there is no incompatibility between passing the Amendment and 

expanding such programs. Indeed. if the experience at the state level is any guide, passage of 

the Amendment will. if anything, lead to an increase in resources devoted to victim-assistance 

efforts because of their usefulness in implementing the rights contained in the Amendment. 

Heill0nline -- 1999 Utah L. Rev. 504 1999 
86 

No.2] BARBARIANS AT THE GATES? 505 

manufacture a point in their favor. For example, the dissenting Senators 

claimed that the victim's right "not to be excluded from" the trial equates 

with a victim's right to be transported to the trial. They then conclude that 

"[t]he right not to be excluded could create a duty for the Government to 

provide travel and accommodation costs for victims who could not otherwise 

afford to attend."136 This fanciful objection runs contrary to both the plain 

language of the Amendment and the explicit statements of its supporters and 

sponsors. The underlying right is not for victims to be transported to the 

courthouse, but simply to enter the courthouse once there. As the Senate 

Judiciary Committee report explains, "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 governmental 

obligation to provide funding ... for a victim to attend proceedings.,,137 The 

objection also runs counter to current interpretations of comparable language 

in other enactments. Federal law and many state constitutional amendments 

already extend to victims the arguably more expansive right "to be present" 

at or "to attend" court proceedings.138 Yet no court has interpreted anyone of 

these provisions as guaranteeing a victim a right of transportation and lodging 

at public expense. The federal amendment is even less likely to be construed 

to confer such an unprecedented entitlement because of its negative 

formu lation.139 

Once victims arrive at the courthouse, their attendance at proceedings 

imposes no significant incremental costs. In exercising their right to attend, 

victims simply can sit in the benches that have already been built. Even in 

cases involving hundreds of victims, innovative approaches such as closed136S. REP. No. 105-409, at 63 (1998) (minority views ofSens. Leahy, Kennedy, and 

Kohl). 

I37ld. at 26. The government, of course, already provides travel and accommodation 

expenses for the many victims who are witnesses in criminal cases. 

13"For right "to be present" formulations, see, for example, 42 U.S.C. § 10606(b)(4) 

(1994); ALASKA CONST. art. I, § 24; ARIZ. CONST. art. 2, § 2. I (A)(3)-(4); IDAHO CONST. art. 

I, § 22(4), (6); ILL. CONST. art. I, § 8.1; IND. CONST. art L § 13(b); MISS. CODE ANN. § 59-36-

5(2) (1994); Mo. CONST. art. I, § 32(1)(i); NEV. CONST. art. I, § 8(2)(b); N.M. CONST. art. II, 

§ 24(A)(5); N.C. CONST. art. I, § 37(I)(a); OKLA. CONST. art. II, § 34A; S.c. CONST. art. I, § 

24(A)(3); UTAHCONST. art. I, § 28(I)(b);see also ARK. CODEANN.§ 16-41-101 (1994) (Rule 

616). For a right "to attend" formulation. see MICH. CONST. art. I, § 24(1). 

139 An Alabama statute also uses this phrasing without reported deleterious consequences. 

See ALA. CODE § 15-14-54 (I995)(recognizing victim's right "not [to] be excluded from court 

or counsel table during the trial or hearing or any portion thereof."). 

Heill0nline -- 1999 Utah L. Rev. 505 1999 
87 

506 UTAH LAW REVIEW [1999: 479 

circuit broadcasting have proven feasible. 140 As for the victim's right to be 

heard, the state experience reveals only a modest cost impact. '41 

Most of the cost arguments have focused on the Amendment's 

notification provisions. Yet, it is already recognized as sound prosecutorial 

practice to provide notice to victims. The National Prosecution Standards 

prepared by the National District Attorneys Association recommend that 

victims of violent crimes and other serious felonies should be informed, 

where feasible, of important steps in the criminal justice process!42 In 

addition, many states have required that victims receive notice of a broad 

range of criminal justice proceedings. Nearly every state provides notice of 

the trial, sentencing, and parole hearings. 143 In spite of the fact that notice is 

already required in many circumstances across the country, the dissenting 

senators on the Judiciary Committee argued that the "potential costs of [the 

Amendment's] constitutionally mandated notice requirements alone are 

staggering.,,144 Perhaps these predictions should simply be written off as 

harmless political rhetoric, but it is important to note that these suggestions 

are inconsistent with the relevant evidence. The experience with victim notice 

requirements already used at the state level suggests that the costs are 

relatively modest, particularly since computerized mailing lists and 

automated telephone calls can be used. The Arizona amendment serves as a 

good illustration. That amendment extends notice rights far beyond what is 

called for in the federal amendment;145 yet, prosecutors have not found the 

14°See 42 V.S.c.A. 10608(a) (West Supp. 1998) (authorizing closed circuit broadcast of 

trials whose venue has been moved more than 350 miles). This provision was used to broadcast 

proceedings in the Oklahoma City bombing trial in Denver back to Oklahoma City. 

141See, e.g., NIJ SENTENCING STUDY, supra note 67, at 59 (stating that right to allocutc 

in California "has not resulted in any notewonhy change in the workload of either the courts. 

probation depanments, district attorneys' offices or victim/witness programs"); id. at 69 

(finding no notewonhy change in workload of California parole board); Erez. J'ictilll 

Participation, supra note 69, at 22 ("Research in jurisdictions that allow victim panicipation 

indicates that including victims in the criminal justice process does not cause delays or 

additional expense."); see also DAVIS ET AL., supra note 68, at 69 (noting that expanded victim 

impact program did not delay dispositions in New York). 

I·'NATIONAL DISTRlCf ATTORNEYS ASS'N. NATIONAL PROSECUTION STANDARDS § 26.1. 

at 92 (2d ed. 1991). 

I.lJSee NATIONAL VICfIM CENTER, 1996 VICfIMS' RIGHTS SOURCEBOOK: A COMPILATION 

AND COMPARISON OF VICfIMS' RIGHTS LEGISLATION 24 (collecting statutes). 

ws. REP. No. 105-409, at 62 (1998) (minority views of Sens. Leahy, Kennedy, and 

Kohl). 

14sThe Arizona Amendment extends notification rights to all crime victims, not just 

victims of violent crime as provided in the federal amendment. Compare ARIZ. CONS!. an. II 

§ 2.I(A)(3), (C), with SJ. Res. 3, 106th Congo § 2 (1999). 

Heill0nline -- 1999 Utah L. Rev 506 1999 
88 

No.2] BARBARIANS AT THE GATES? 507 

expense burdensome in practice.146 As a result of the existing state notification requirements, any incremental expense in Arizona from the federal 

amendment should be quite modest. 

The only careful and objective assessment of the costs of the Amendment also reaches the conclusion that the costs are slight. The Congressional 

Budget Office reviewed the financial impact of not just the notification 

provisions of the Amendment, but of all its provisions, on the federal criminal 

justice system. The CBO concluded that, were the Amendment to be 

approved, it "could impose additional costs on the Federal courts and the 

Federal prison system .... However, CBO does not expect any resulting 

costs to be significant.,,147 

This CBO report is a good one on which to wrap up the discussion of 

normative objections to the Amendment. Here is an opportunity to see how 

the critics' claims fare when put to a fair-minded and neutral assessment. In 

fact, the critics' often-repeated allegations of "staggering" costs were found 

to be exaggerated. 

II. JUSTIFICATION CHALLENGES 

A. The "Unnecessary" Constitutional Amendment 

Because the normative arguments for victims' rights are so powerful, 

some critics of the Victims' Rights Amendment take a different tack and 

mount what might be described as ajustification challenge. This approach 

concedes that victims' rights may be desirable, but maintains that victims 

already possess such rights or can obtain such rights with relatively minor 

modifications in the current regime. The best single illustration ofthis attack 

is found in Professor Mosteller's article in this Symposium, entitled The 

Unnecessary Victims' Rights Amendment. 148 There, Mosteller contends that 

a constitutional amendment is not needed because the obstacles that victims 

face--described by Mosteller as "official indifference" and "excessive 

judicial deference"--can all be overcome without a constitutional amendment!49 

1.oSee Richard M. Romley, Constilulional Rights for Victims: Another Perspective, THE 

PROSECUTOR, May 1997, at 7 (noting modest cost of state amendment in Phoenix); 1997 

Senate Judiciary Comm. Hearings, supra note 6, at 97 (1997) (statement of Barbara LaWall, 

Pima County Prosecutor) (noting that cost has not been problem in Tucson). 

l<1CONGRESSIONAL BUDGET OFFICE COST ESTIMATE, S.J. RES. 44, reprinted in S. REP. 

No. 105-409, at 39-40 (1998). 

l"Mosteller, Unnecessary Amendment, supra note 13. 

"9ld. al 449; see also Mosteller, Recasting the BailIe, supra note 13, at 1711-12 

(developing similar argument). 

Heill0nIine -- 1999 Utah L. Rev. 507 1999 
89 

508 UTAH LAW REVIEW [1999: 479 

Professor Mosteller's clearly developed position is ultimately unpersuasive because it supplies a purely theoretical answer to a practical problem. In 

theory, victims' rights could be safeguarded without a constitutional 

amendment. It would only be necessary for actors within the criminal justice 

system-judges, prosecutors, defense attorneys, and others-to suddenly 

begin fully respecting victims' interests. The real-world question, however, 

is how to actually trigger such a shift in the Zeitgeist. For nearly two decades, 

victims have obtained a variety of measures to protect their rights. Yet, the 

prevailing view from those who work in the field is that these efforts "have 

all too often been ineffective.,,'5o Rules to assist victims "frequently fail to 

provide meaningful protection whenever they come into conflict with 

bureaucratic habit, traditional indifference, [or] sheer inertia."'51 The view 

that state victim provisions have been and will continue to be often disregarded is widely shared, as some ofthe strongest opponents of the Amendment seem to concede the point. For example, Ellen Greenlee, President of 

the National Legal Aid and Defender Association, bluntly and revealingly 

told Congress that the state victims' amendments "so far have been treated 

as mere statements of principle that victims ought to be included and 

consulted more by prosecutors and courts. A state constitution is far ... 

easier to ignore[] than the federal one.,,152 

Professor Mosteller attempts to minimize the current problems, 

conceding only that "existing victims' rights are not uniformly enforced.,,'53 

This is a grudging concession to the reality that victims' rights are often 

denied today, as numerous examples of violations of rights in the congressional record and elsewhere attest. 154 A comprehensive view comes from a 

careful study ofthe issue by the Department of Justice. As reported by the 

Attorney General, the Department found that 

efforts to secure victims' rights through means other than a constitutional 

amendment have proved less than fully adequate. Victims' rights 

advocates have sought refonns at the state level for the past twenty years, 

,s"["ribe & Cassell, supra note 22, at 85; see, e.g., 1996 Senate JudiciCIIY COl/lin. 

Hearings, supra note 8, at 109 (statement of Steven Twist) ("There are victims of arson in 

Atlanta. GA, who have little or no say, as the victims ... of an earlier era had about their 

victimization."); id. at 30 (statement of John WaIsh) (stating that victims' rights amendments 

on state level do not work); id. at 26 (statement of Katherine Prescott) ("Victims' roles in the 

prosecution of cases will always be that of second-class citizens" if victims' rights are only 

specified in state statutes). 

'''Tribe & Cassell, supra note 22, at B5. 

'<21996 House Judiciary Comm. Hearings. supra note 7, at 147. 

,s'Mosteller, Unnecessary Amendment, supra note 13, at [4]. 

,s'See, e.g., 1998 Senate Judiciary Comm. Hearings, supra note 26, at 103--{)6 (statement 

of Marlene Young). 

Heil10nline -- 1999 Utah L. Rev. SOX 1999 
90 

No.2] BARBARIANS AT THE GATES? 

and many states have responded with state statutes and constitutional 

provisions that seek to guarantee victims' rights. However, these efforts 

have failed to fully safeguard victims' rights. These significant state 

efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights. ISS 

509 

Similarly, an exhaustive report from those active in the field concluded that 

"[a] victims' rights constitutional amendment is the only legal measure strong 

enough to rectifY the current inconsistencies in victims' rights laws that vary 

significantly from jurisdiction to jurisdiction on the state and federal 

levels.,,15b 

Hard statistical evidence on noncompliance with victims' rights laws 

confirms these general conclusions about inadequate protection. A 1998 

report from the National Institute of Justice (''NIl'') found that many victims 

are denied their rights and concluded that "enactment of State laws and State 

constitutional amendments alone appears to be insufficient to guarantee the 

full provision of victims' rights in practice."ls7 The report found numerous 

examples of victims not provided rights to which they were entitled. For 

example, even in several states identified as giving "strong protection" to 

victims rights, fewer than 60% of the victims were notified of the sentencing 

hearing and fewer than 40% were notified of the pretrial release of the 

defendant. lss A follow-up analysis of the same data found that racial 

minorities are less likely to be afforded their rights under the patchwork of 

existing statutes}S9 Professor Mosteller dismisses these figures with the 

essentially ad hominem attack that they were collected by the National Victim 

Center, which supports a victims' rights amendment.160 However, the data 

themselves were collected by an independent polling firm!61 Mosteller also 

IlS J 997 Senale Judiciary Comm. Hearings, supra note 6, at 64 (statement of Att'y Gen. 

Reno). • 

Il60FFlCE FOR VICTIMS OF CRIME, U.S. DEP'T OF JUSTICE, NEW DIRECTIONS FROM THE 

FIELD: VICTIMS' RIGHTS AND SERVICES FOR THE 21 ST CENTURY 10 (1998). 

IS7NAT'L INST. OF JUSTICE, RESEARCH IN BRIEF, THE R1GIITS OF CRIME VICTIMS--DoES 

LEGAL PROTECTION MAKE A DIFFERENCE? 1 (Dec. 1998) [hereinafter NIJ REpORT]. An earlier 

version of essentially the same report is reprinted in 1997 Senale Judiciary Comm. Hearings. 

supra note 6, at 15. 

158NIJ REpORT, supra note 157, at 4 exh.l. 

Il9See NATIONAL VICTIM CENTER, STATUTORY AND CONSTITUTIONAL PROTECTION OF 

VICTIMS' RIGHTS, IMPLEMENTATION AND IMPACT ON CRIME VICTIMS, SUB-REpORT: 

COMPARISON OF WHITE AND NON-WHITE CRIME VICTIM RESPONSES REGARDING VICTIMS' 

RIGHTS 5 (1997) [hereinafter NVC RACE SUB-REpORT] ("[I]n many instances non-white 

victims were less likely to be provided those [crime victims'] rights •.•. "). 

I60See Mosteller. Unnecessary Amendment, supra note 13, at 447 n.13. 

161See NIl REpORT, supra note 157, at 11. 

Heill0nline .. 1999 Utah L. Rev. 509 1999 
91 

510 UTAH LAW REVIEW [1999: 479 

cites one internal Justice Department reviewer who stated during the review 

process in conclusory terms that the report was unsatisfactory and should not 

be published. 162 The conclusion of the NIJ review process, however, after 

hearing from all reviewers, including apparently favorable peer reviews, was 

to publish the study.163 Finally, Mosteller criticizes the data as resting on 

unverified self-reported data from crime victims. However, since the research 

question was how many victims had been afforded their rights, asking 

victims, rather than the agencies suspected offailing to provide rights, would 

appear to be a standard methodological approach. The study also obtained a 

very high response rate (83%) from the victims interviewed,l64 suggesting 

that the findings are not due to any kind of responder bias. And given the 

magnitude of the alleged failures to provide victims' rights-ranging up to 

60% and more-the general dismissal picture presented by the NIJ report is 

clear. Opponents of the Amendment offer no competing statistics, and such 

other data as exist tend to corroborate the NIJ findings of substantial 

noncompliance. 16s 

Given such statistics, it is interesting to consider what the defenders of 

the status quo believe is an acceptable level of violation of rights. Suppose 

new statistics could be gathered that show that victims' rights are respected 

in 75% of all cases, or 90%, or even 98%. America is so far from a 98% rate 

for affording victims rights that my friends on the front lines of providing 

victim services probably will dismiss this exercise as a meaningless law 

school hypothetical. But would a 98% compliance rate demonstrate that the 

amendment is "unnecessary"? Even a 98% enforcement rate would leave 

numerous victims unprotected. As the Supreme Court has observed in 

response to the claim that the Fourth Amendment exclusionary rule affects 

1·'See Mosteller, Unnecessary Amendment, supra note 13, at 447 n.13 (citing 

Memorandum from Sam McQuade, Program Manager, NIJ, to Jeremy Travis, Director, NIJ 

(May 16, 1997». 

'·JNAT'L INSTITIITE OF JUSTICE, U.S. DEP'TOF JUSTICE, GUIDE TO WRITING REpORTS FOR 

NIJ: POLICY, REQUIREMENTS, AND PROCEDURES 3 (1998) (listing procedures for NIJ's 

publication process, including external peer review panel). 

""See NIJ REPORT, supra note 157, at 3. Professor Mosteller criticizes the NIJ's reported 

83% response figure, suggesting that it was actually as low as 29%. See Mosteller, Unnecessary Amendment, supra note 13, at 447 n.13. I will not take time here to explain why I disagree 

with his 29% calculation. but simply press the point that he offers no specific reason for 

believing that the basic finding of the NIJ would have been any different had the response rate 

been higher. 

'·'See, e.g., HILLENBRAND & SMITH, supra note 69, at 112 (noting that prosecutors and 

victims consistently report that victims are "not usually" given notice or consulted in 

significant proportion of cases); Erez, Victim Participation, supra note 69, at 26 (finding that 

victims are rarely informed of right to make statements and victim impact statements are not 

always prepared). 

Heill0nIine -- 1999lJtah L. Rev. SIO 1999 
92 

No.2] BARBARIANS AT THE GATES? 511 

"only" about 2% of all cases in this country, "small percentages ... mask a 

large absolute number of' cases,,66 A rough calculation suggests that even if 

the Victims' Rights Amendment improved treatment for only 2% of the 

violent crime cases it affects, a total of about 30,000 victims would benefit 

each year. 167 Even more importantly, we would not tolerate a mere 98% 

"success" rate in enforcing other important rights. Suppose that, in opposition 

to the Bill of Rights, it had been argued that 98% of all Americans could 

worship in the religious tradition of their choice, 98% of all newspapers could 

publish without censorship from the government, 98% of criminal defendants 

had access to counsel, and 98% of all prisoners were free from cruel and 

unusual punishment. Surely the effort sti II would have been mounted to move 

the totals closer to 100%. Given the wide acceptance of victims' rights, they 

deserve the same respect. 

Professor Mosteller does not spend much time reviewing the level of 

compliance in the current system, instead moving quickly to the claim that the 

Amendment will "not automatically eliminate[)" the problem of official 

indifference to victims' rights.168 But the key issue is not whether the 

Amendment will "eliminate" indifference, but rather whether it will reduce 

indifference-thereby improving the lot of victims. Here the posture of the 

Amendment's critics is quite inconsistent. On the one hand, they posit 

dramatic damaging consequences that will reverberate throughout the system 

after the Amendment's adoption, even though those consequences are entirely 

unintended. Yet, at the same time, they are unwilling to concede that the 

Amendment will make even modest positive consequences in the areas that 

it specifically addresses. 

I66United States v. Leon, 468 U.S. 897, 907--{)8 n.6 (1984); see also CRAIG M. BRADLEY, 

THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 43-44 (1993) (worrying about effect 

of exclusionary rule, if 5% of cases are dismissed due to Miranda violations and 5% are 

dismissed due to search problems). 

1.7FBI estimates suggest an approximate total of about 2,303,600 arrests for violent 

crimes each year, broken down as follows: 729,900 violent crimes within the crime index 

(murder, forcible rape, robbery, aggravated assault), 1,329,000 other assaults, 95,800 sex 

offenses, and 149,800 offenses against family and children. See FED. BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME REPORTS: CRIME IN THE UNITED STATES 1996, 

at 214 tbl.29 (1997). A rough estimate is that about 70% of these eases will be accepted for 

prosecution, within the adult system. See Brian Forst, Prosecution and Sentencing, in CRIME 

363-64 (James Q. Wilson & Joan Peters ilia eds., 1995). Assuming the Amendment would 

benefit 2% of the victims within these charged cases produces the figure in text. For further 

discussion of issues surrounding such extrapolations, see Paul G. Cassel!, Miranda's Social 

Costs: An Empirical Reassessment, 90 Nw. U. L. REv. 387, 438-40; Paul G. Cassell, 

Protecting the Innocent/rom False Confessions and Lost Confessions-And From Miranda, 

88J. CRIM. L. & CRIMINOLOGY 497,514-16 (1998). 

168Mosteller, Unnecessary Amendment. supra note 13, at 449. 

Heil10nline .. 1999 Utah L. Rev. 511 1999 
93 

512 UTAH LAW REVIEW [1999: 479 

The best view of the Amendment's effects is a moderate one that avoids 

the varying extremes of the critics. Of course the Amendment will not 

eliminate all violations of victims' rights, particularly because practical 

politics have stripped from the Amendment its civil damages provision.'69 But 

neither will the Amendment amount to an ineffectual response to official 

indifference. On this point, it is useful to consider the steps involved in 

adopting the Amendment. Both the House and Senate of the United States 

Congress would pass the measure by two-thirds votes. Then a full threequarters of the states would ratify the provision. 170 No doubt these events 

would generate dramatic public awareness ofthe nature of the rights and the 

importance of providing them. In short, the adoption of the Amendment 

would constitute a major national event. One might even describe it as a 

"constitutional moment" (of the old fashioned variety) where the nation 

recognizes the crucial importance of protecting certain rights for its 

citizens.17I Were such events to occur, the lot of crime victims likely would 

improve considerably. The available social science research suggests that the 

primary barrier to successful implementation of victims' rights is "the 

socialization of [lawyers] in a legal culture and structure that do not recognize 

the victim as a legitimate party in criminal proceedings."172 Professor 

Mosteller seems to agree generally with this view, explaining that "officials 

fail to honor victims' rights largely as a result of inertia, past learning, 

insensitivity to the unfamiliar needs of victims, lack of training, and 

inadequate or misdirected institutional incentives.,,173 A constitutional 

amendment, reflecting the instructions of the nation to its criminal justice 

system, is perfectly designed to attack these problems and develop a new 

legal culture supportive of victims. To be sure, one can paint the prospect of 

I"See SJ. Res. 3, 106th Congo § 2 (1999). See generally Cassell, supra note 33, at 

1418-21 (discussing damages actions under victims' rights amendments). 

17°See U.S. CONST. art. V. 

I1ICI 1 BRUCE ACKERMAN, WE THE PEOPLE passim (1990) (discussing "constitutional 

moments"). 

17ZErez, Victim Participation, supra note 69, at 29; see also WILLIAM PIZZI, TRIALS 

WITHOUT TRUTH: WHY OUR SYSTEM OF CRIMINAL TRIALS HAS BECOME AN EXPENSIVE 

FAILURE AND WHAT WE NEED TO DO TO REBUILD IT 196-97 (1999) (discussing problems with 

American trial culture); Pizzi, supra note 10, at 359-60 (noting trial culture emphasis on 

winning and losing that may overlook victims); William T. Pizzi & Walter Perron, Crime 

Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 STAN. 

J. INT'L L. 37, 37-40 (1996) ("So poor is the level of communication that those within the 

system often seem genuinely bewildered by the victims' rights movement, even to the point of 

suggesting rather condescendingly that victims are seeking a solace from the criminal justice 

system that they ought to be seeking elsewhere."). 

I13Mosteller, Unneccesary Amendment, supra note 13, at 449. 

Heil10nIine .. 1999lJtah L. Rev. 5121999 
94 

No.2] BARBARIANS AT THE GATES? 513 

such a change in culture as "entirely speculative.,,174 Yet this means nothing 

more than that, untii the Amendment passes, we will not have an opportunity 

to precisely assay its positive effects. Constitutional amendments have 

changed our legal culture in other areas, and clearly the logical prediction is 

that a victims' amendment would go a long way towards curing official 

indifference. This hypothesis is also consistent with the findings of the NIJ 

study on state implementation of victims' rights. The study concluded that 

"[w]here legal protection is strong, victims are more likely to be a\yare of 

their rights, to participate in the criJ!linal justice system, to view criminal 

justice system officials favorably, and to express more overall satisfaction 

with the system.,,175 It is hard to imagine any stronger protection for victims' 

rights than a federal constitutional amendment. Moreover, we can confidently 

expect that those who will most often benefit from the enhanced consistency 

in protecting victims' rights will be members of racial minorities, the poor, 

and other disempowered groups. Such victims are the first to suffer under the 

current, "lottery" implementation of victims' rights. '76 

Professor Mosteller devotes much of his article to challenging the claim 

that the Amendment is needed to block excessive official deference to the 

rights of criminal defendants. Proponents of the Amendment have argued 

that, given two hundred years of well-established precedent supporting 

defendants' rights, the apparently novel victims' rights found in state 

constitutional amendments and elsewhere too frequently have been ignored 

on spurious grounds of alleged conflict. 177 Professor Mosteller, however, 

rejects this argument on the ground that there is no "currently valid appellate 

opinion reversing a defendant's conviction because of enforcement of a 

provision of state or federal law or state constitution that granted a right to a 

victim.,,'78 As a result, he concludes, there is no evidence of a "significant 

body of law that would warrant the remedy of a constitutional amendment."179 

This argument does not refute the case for the Amendment, but rather 

is a mere straw man created by the opponents. The important issue is not 

whether victims' rights are thwarted by a body of appellate law, but rather 

whether they are blocked by any obstacles, including most especially 

obstacles at the trial level where victims must first attempt to secure their 

174Id. at 447. 

175NIJ REpORT, supra note 157, at 10. 

176See supra note 159 and accompanying text (noting that minority victims are least likely 

to be afforded rights today); cf. Henderson, supra note 14, at 421-22 (criticizing "lottery 

approach" to affording victims' rights). 

177See. e.g., infra Part I1.B (discussing victims' rights in Oklahoma City bombing case). 

17SMosteIler, Unnecessary Amendment, supra note 13, at 452. 

179Id. at 453; see also S. REP. No. 105-409, at 51-52 (1998). 

Heil10nline -- 1999 Utah L. Rev. 511 1999 
95 

514 UTAH LAW REVIEW [1999: 479 

rights. One would naturally expect to find few appellate court rulings 

rejecting victims' rights; there are few victims' rulings anywhere, let alone 

in appellate courts. To get to the appellate level-in this context, the 

"mansion" ofthe criminal justice system-victims first must pass through the 

"gatehouse"-the trial court. ISO That trip is not an easy one. Indeed, one of 

the main reasons for the Amendment is that victims find it extraordinarily 

difficult to get anywhere close to appellate courts. To begin with, victims 

may be unaware of their rights or discouraged by prosecutors from asserting 

them. Even if aware and interested in asserting their rights in court, victims 

may lack the resources to obtain counsel. Finding counsel, too, will be 

unusually difficult, since the field of victims' rights is a new one in which 

few lawyers specialize. lSI Time will be short, since many victims' issues, 

particularly those revolving around sequestration rules, arise at the start of or 

even during the trial. Even if a lawyer is found, she must arrange to file an 

interlocutory appeal in which the appellate court will be asked to intervene 

in ongoing trial proceedings in the court below. If victims can overcome all 

these hurdles, the courts still possess an astonishing arsenal of other 

procedural obstacles to prevent victim actions, as Professor Bandes's paper 

in this Symposium cogently demonstrates.182 In light of all these hurdles, 

appellate opinions about victim issues seem, to put it mildly, quite unlikely. 

One can interpret the resulting dearth of rulings as proving, as Professor 

Mosteller would have it, that no reported appellate decisions strike down 

victims' rights. Yet it is equally true that, at best, only a handful of reported 

appellate decisions uphold victims' rights. This fact tends to provide an 

explanation for the frequent reports of denials of victims' rights at the trial 

level. Given that these rights are newly created and the lack of clear appellate 

sanction, one would expect trial courts to be wary of enforcing these rights 

against the inevitable, if invariably imprecise, claims of violations of a 

defendant's rights. ls3 Narrow readings will be encouraged by the asymmetries 

IK"Cf Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American 

Criminal Procedure, in YALE KAMISAR ET AL., CRIMINAL JUSTICE IN OUR TIME 19 (1965) 

(famously developing this analogy in context of police interrogation). 

"'See Henderson, supra note 14, at 429. Hopefully this situation may improve with the 

publication of Professor Beloof's law school casebook on victim's rights, see BELOOF. supra 

note 128, which may encourage more training in this area. 

'''See Susan Bandes, supra note 11, passim; see also Susan Bandes, The Negative 

Constitution: A Critique, 88 MtCH. L. REv. 2271, 2273 (1991) [hereinafter Bandes, The 

Negative Constitution] (discussing courts' reluctance to review government inaction in 

protection of constitutional rights); Susan Bandes, The Idea of a Case, 42 STAN. L. REv. 227, 

229-30 (1990) (noting how courts limit and define issues in case). 

ISlAs shown in Part l.A, supra, victims' rights do not actually conflict with defendant's 

rights. Frequently, however, it is the defendant's mere claim of alleged conflict, not carefully 

considered by the trial court, that ends up producing (along with the other contributing factors) 

Heill0nline -- 1999lJtah L. Rev. 5141999 
96 

No.2] BARBARIANS AT THE GATES? 515 

of appeal-defendants can force a new trial if their rights are denied, while 

victims cannot.ls.! Victims, too, may be reluctant to attempt to assert untested 

rights for fear of giving a defendant grounds for a successful appeal and a 

new trial. lss 

In short, nothing in the appellate landscape provides a basis for 

concluding that all is well with victims in the nation's trial courts. The 

Amendment's proponents have provided ample examples of victims denied 

rights in the day-to-day workings of the criminal trials. The Amendment's 

opponents seem tacitly to concede the point by shifting the debate to the more 

rarified appellate level. Thus, here again, the opponents have not fully 

engaged the case for the Amendment. 

As one final fallback position, the Amendment's critics maintain that it 

will not "eliminate" the problems in enforcing victims' rights because some 

level of uncertainty will always remain!S6 However, as noted before, the 

issue is not eliminating uncertainty, but reducing it. Surely giving victims 

explicit constitutional protection will vindicate their rights in many circumstances where today the trial judge would be uncertain how to proceed. 

Moreover, the Amendment's clear conferral of "standing" on victimsl87 will 

help to develop a body of precedents on how victims are to be treated. There 

is, accordingly, every reason to expect that the Amendment will reduce 

uncertainties substantially and improve the lot of crime victims. 

B. The Oklahoma City Illustration of the "Necessary" Amendment 

On assessing whether the Amendment is "necessary," it might be said 

that "a page of history is worth a volume of logic."ls8 To be sure, one can cite 

examples of victims who have received fair treatment in the criminal justice 

system, as Professor Henderson's moving narrative about her treatment 

during the prosecution of her rapist demonstrates!89 Nonetheless, this and 

the denial of victims' rights. 

I"See Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the 

Asymmetry in the Right to Appea/, 57 U. CHI. L. REv. 1,5-7 (1990) (examining consequences 

of asymmetric risk oflegal error in criminal cases); see also Erez & Rogers, supra note 69, at 

228-29 (noting reluctance of South Australian judges to rely on victim evidence because of 

appeal risk). 

185 See Paul G. Cassell. Fight for Victims' Justice is Going Strong, THE DESERET NEWS, 

July 10, 1996, at A7 (illustrating this problem with uncertain Utah case law on victim's right 

to be present). 

IK6Mosteller, Unnecessary Amendment, supra note 13, at 464. 

18'See S.J. Res. 3, 106th Congo § 2 (1999) ("Only the victim or the victim's legal 

representative shall have standing to assert the rights established by this article .... "). 

"'New York Trust CO. V. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). 

I""See Henderson, supra note 14, at 433-41. 

Heill0nline -- 1999lJtah L. Rev. 515 1999 
97 

516 UT AH LAW REVIEW [1999: 479 

other examples hardly make the case against reform, as even Henderson 

seems to concede that there is a need for improvement in many cases.190 The 

question then becomes whether a constitutional amendment would operate to 

spur that improvement. Here it is necessary to look not at the system's 

successes in ruling on victims' claims, but rather at its failures. The 

Oklahoma City bombing case provides an illustration of the difficulties 

victims face in having their claims considered by appellate courts. 

During a pre-trial motion hearing in the Timothy McVeigh prosecution, 

the district court sua sponte issued a ruling precluding any victim who wished 

to provide victim impact testimony at sentencing from observing any 

proceeding in the case. 191 The court based its ruling on Rule 615 of the 

Federal Rules of Evidence-the so-called "rule on witnesses.,,192 In the hour 

that the court then gave to victims to make this wrenching decision about 

testifying, some of the victims opted to watch the proceedings; others decided 

to leave Denver to remain eligible to provide impact testimony. 193 

Thirty-five victims and survivors of the bombing then filed a motion 

asserting their own standing to raise their rights under federal law and, in the 

alternative, seeking leave to file a brief on the issue as amici curiae.194 The 

victims noted that the district court apparently had overlooked the Victims' 

Bill of Rights, a federal statute guaranteeing victims the right (among others) 

"to be present at all public court proceedings, unless the court determines that 

testimony by the victim would be materially affected if the victim heard other 

testimony at trial.,,195 

'90See id. at 434. 

'9'See United States v. McVeigh, No. 96-CR-68, 1996 WL 366268, at *2 (D. Colo. June 

26, 1996). 

'92/d. at **2-3 (discussing application of FED. R. EVID. 615). 

'

93See /997 SenaleJudiciary Comm. Hearings, supra note 6, at 73 (statement of Marsha 

Kight). 

'·'Motion of Marsha and Tom Kight et al. and the National Organization for Victim 

Assistance Asserting Standing to Raise Rights Under the Victims' Bill of Rights and Seeking 

Leave to File a Brief as Amici ClIriae. United Siaies v. McVeigh, No. 96-CR-68-M, 1996 WL 

570841 (D. Colo. Sept. 30, 1996). I represented a number of the victims on this matter on a pro 

bono basis, along with able co-counsel Robert Hoyt, Arnon Siegel, and Karan Bhatia of the 

Washington, D.C. law firm of Wilmer. Cutler, and Pickering, and Sean Kendall of Boulder, 

Colorado. For a somewhat fuller recounting of the victims' issues in the case, see 1997 Senale 

JlIdiciary Comm. Hearings, Sllpra note 6, at 106-13 (statement of Paul Cassell). 

19;42 U.S.c. § 10606(b)(4) (1994). The victims also relied on a similar provision found 

in the authorization for closed circuit broadcasting of the trial, 42 U.S.C.A. § 10608(a) (West 

Supp. 1998), and on a First Amendment right of access to public court proceedings, see 

Richmond Newspapers, Inc. v. Virginia. 448 U.S. 555, 577 (1980) (finding First Amendment 

right of court access). 

Heil10nline .. 1999lJtali L. Rev. 516 1999 
98 

No.2] BARBARIANS AT THE GATES? 517 

The district court then held a hearing to reconsider the issue of excluding 

victim witnesses.'96 The court first denied the victims' motion !lsserting 

standing to present their own claims, allowing them only the opportunity to 

file amicus briefs.!97 After argument by the Department of Justice and by the 

defendants, the court denied the motion for reconsideration.'98 It concluded 

that victims present during court proceedings would not be able to separate 

the "experience of tria[" from "the experience of loss from the conduct in 

question," and, thus, their testimony at a sentencing hearing would be 

inadmissib[e.'99 Unlike the original ruling, which was explicitly premised on 

Ru[e 615, the October 4 ruling was more ambiguous, alluding to concerns 

under the Constitution, the common law, and the rules of evidence.2oo 

The victims then filed a petition for writ of mandamus in the U.S. Court 

of Appea[s for the Tenth Circuit seeking review of the district court's 

ru[ing.201 Because the procedures for victims appeals were unclear, the 

victims filed a separate set of documents appealing from the ru[ing.202 

Similarly, the Department of Justice, uncertain ofprecise[y how to proceed 

procedurally, filed both an appeal and a petition for a writ of mandamus. 

Three months later, a panel of the Tenth Circuit rejected-without oral 

argument-both the victims' and the Department's claims onjurisdictiona[ 

grounds. With respect to the victims' challenges, the court concluded that the 

victims lacked "standing" under Article III of the Constitution because they 

had no "[egally protected interest" to be present at the trial and consequently 

had suffered no "injury in fact" from their exclusion?03 The Tenth Circuit 

also found that the victims had no right to attend the trial under any First 

Amendment right of access?04 Finally, the Tenth Circuit rejected, on 

jurisdictional grounds, the appeal and mandamus petition filed by the 

Department?°5 Efforts by both the victims and the Department of Justice to 

obtain a rehearing were unsuccessfuI/o6 even with the support of separate 

1965ee United States v. McVeigh, No. 96·CR-68, 1996 WL 578525, at **16-25 (D. Colo. 

Oct. 4, 1996). 

1975ee id. at * 16. 

1985ee id. at *25. 

1991d. at *24. 

lO·See id. 

lOlpetition for Writ of Mandamus, Kight et al. v. Maisch, No. 96-1484 (10th Cir. Nov. 

6, 1996) (on file with author). 

lO'See United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997). 

2CBld. at 334-35. 

21J.1See id. at 335; see supra note 195 (discussing right of access for press under First 

Amendment). 

20'See McVeigh, 106 F.3d at 333. 

2fJ6See Order, United States v. McVeigh, No. 96-1469,1997 WL 128893, at *3 (10th Cir. 

Mar. II, 1997). 

Heil10nline .. 1999 Utah L. Rev. 517 1999 
99 

518 UTAH LAW REVIEW [1999: 479 

briefs urging rehearing from forty-nine members of Congress, all six 

Attorneys General in the Tenth Circuit, and some of the leading victims' 

groups in the nation.207 

In the meantime, the victims, supported by the Oklahoma Attorney 

General's Office, sought remedial legislation in Congress clearly stating that 

victims should not have to decide bet\veen testifying at sentencing and 

watching the trial. The Victims' Rights Clarification Act of 1997 was 

introduced to provide that watching a trial does not constitute grounds for 

denying the chance to provide an impact statement. Representative Wexler, 

a supporter of the legislation, observed the painful choice that the district 

court's ruling was forcing on the victims: 

As one of the Oklahoma City survivors put it, a man who lost one eye 

in the explosion, "'It's not going to affect our testimony at all. I have a 

hole in my head that's covered with titanium. I nearly lost my hand. I think 

about it every minute of the day.'" 

That man, incidentally, is choosing to watch the trial and to forfeit his 

right to make a victim impact statement. Victims should not have to make 

that choice?08 

The measure passed the House by a vote of 418 to 19.209 The next day, the 

Senate passed the measure by unanimous consent.210 The following day, 

President Clinton signed the Act into law,2)) explaining that "when someone 

2U7See Brieffor Amici Curiae Washington Legal Foundation and United States Senators 

Don Nickles and 48 Other Members of Congress, United States v. McVeigh, 106 F.3d 325 

(10th Cir. Feb. 14, 1997) (No. 96-1469)( on file with author)(waming that decision meant that 

victims of federal crimes will never be heard for violations of their rights); Brief for Amici 

Curiae States of Oklahoma, Colorado, Kansas, New Mexico, Utah. and Wyoming Supporting 

the Suggestion for Rehearing and the Suggestion for Rehearing En Banc by the Oklahoma City 

Bombing Victims and the United States, United States v. McVeigh, 106 F.3d 325 (10th Cir. 

Feb. 14, 1997) (No. 96-1469) (on file with author) (warning that decision created "an 

'important problem' for the administration of justice within the Tenth Circuit"); Brief for 

Amici Curiae National Victims Center, Mothers Against Drunk Driving. the National Victims' 

Constitutional Amendment Network, Justice for Surviving Victims, Inc., Concerns of Police 

Survivors, Inc., and Citizens for Law and Order, Inc., in Support of Rehearing, United States 

v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 17, 1997) (No. 96-1469) (on file with author) 

(warning that decision will "preclude anyone from exercising any rights afforded under the 

Victims' Bill of Rights"). 208 143 CONGo REc. HI050 (daily ed. Mar. 18, 1997) (statement of Rep. McCollum). 

l09See id. at H 1068 (five members not voting). 

210See 143 CONGo REC. S2509 (daily ed. Mar. 19, 1997) (statement of Sen. Nickles). 

2IISee Pub. L. No. 105-6. codified al 18 U.S.C.A. § 3510 (West Supp. 1998). 

Heill0nline .. 1999 Utah L. Rev. 51 X 1999 
100 

No.2] BARBARIANS AT THE GATES? 519 

is a victim, he or she should be at the center of the criminal justice process, 

not on the outside looking in.,,212 

The victims then promptly filed a motion with the district court asserting 

a right to attend under the new law.213 The victims explained that the new law 

invalidated the court's earlier sequestration order and sought a hearing on the 

issue.214 Rather than squarely uphold the new law, however. the district court 

entered a new order on victim-impact witness sequestration.215 The court 

concluded that "any motions raising constitutional questions about this 

legislation would be premature and would present issues that are not now ripe 

for decision.,,216 Moreover, the court held that it could address issues of 

possible prejudicial impact from attending the trial by conducting a voir dire 

of the witnesses after the trial.217 The district court also refused to grant the 

victims a hearing on the application of the new law, concluding that its ruling 

rendered their request "moot.,,218 

After that ruling, the Oklahoma City victim impact witnesses---once 

again-had to make a painful decision about what to do. Some of the victim 

impact witnesses decided not to observe the trial because of ambiguities and 

uncertainties in the court's ruling, raising the possibility of excluding 

testimony from victims who attended the trial.219 The Department of Justice 

also met with many of the impact witnesses, advising them of these 

substantial uncertainties in the law, and noting that any observation of the 

trial would create the possibility of exclusion of impact testimony.z20 To end 

this confusion, the victims filed a motion for clarification of the judge's 

order.221 The motion noted that "[b ]ecause ofthe uncertainty remaining under 

212WiIliam J. Clinton, Statement by the President, Mar. 19. 1997 (visited May 17, 1999) 

<hnp:/lwww.pub.whitehouse.gov/uri-reslI2R?um:pdi:/loma.eop.gov.uslI997/3/20/6. text. I>. 

mSee Memorandum of Marsha Kight et aL on the Victims Rights Clarification Act of 

1997, United States v. McVeigh, No. 96-CR-68-M, 1997 WL 144614, at *3 (D. Colo. Mar. 21, 

1997). 

mSee Motion of Marsha Kight et aL for Hearing, United States v. McVeigh, No. 96-CR68-M, 1997 WL 144564, at *1 (D. Colo. Mar. 21,1997). 

21SSee Order Amending Order Under Rule 615, United States v. McVeigh, No. 96-CR68-M, 1997 WL 136343, at *3 (D. Colo. Mar. 25,1997). 

2161d. 

217See id. 

218See Order Declaring Motion Moot, United States v. McVeigh, No. 96-CR-68-M, 1997 

WL 136344, at * I (D. Colo. Mar. 25, 1997). 

219See 1997 Senate Judiciary Comm. Hearings, supra note 6, at III (statement of Prof. 

Paul Cassell); id. at 70 (statement of Marsha Kight). 

22°See id. at III (statement of Prof. Paul Cassell). 

221See Request of the Victims of the Oklahoma City Bombing and the National 

Organization for Victim Assistance for Clarification of the Order Amending the Order Under 

Rule 615, United States v. McVeigh, No. 96-CR-68-M, 1997 WL 159969. at **1,2 (D. Colo. 

Apr. 4. 1997) (requesting that court clarifY ruling in which victim impact testimony could be 

Heill0nline .. 1999lJtah L. Rev. 519 1999 
101 

520 UTAH LAW REVIEW [1999: 479 

the Court's order, a number of the victims have been forced to give up their 

right to observe defendant McVeigh's trial. This chilling effect has thus 

rendered the Victims' Rights Clarification Act of 1997 ... for practical 

purposes a nullity."m Unfortunately, the effort to obtain clarification did not 

succeed, and McVeigh's trial proceeded without further guidance for the 

victims. 

After McVeigh was convicted, the victims filed a motion to be heard on 

issues pertaining to the new law.223 Nonetheless, the court refused to allow 

the victims to be represented by counsel during argument on the law or 

during voir dire about the possible prejudicial impact of viewing the trial.224 

The court, however, concluded (as the victims had suggested all along) that 

no victim was in fact prejudiced as a result of watching the trial.22S 

This recounting of the details of the Oklahoma City bombing litigation 

leaves no doubt about the difficulties that victims face with mere statutory 

protection of their rights. For a number of the victims, the rights afforded in 

the Victims' Rights Clarification Act of 1997 and the earlier Victims' Bill of 

Rights were not protected. They did not observe the trial of defendant 

Timothy Mc Veigh because of lingering doubts about the constitutional status 

of these statutes. 

Not only were these victims denied their right to observe the trial, but 

perhaps equally troubling is that the fact that they were never able to speak 

even a single word in court, through counsel, on this issue. This denial 

occurred in spite of legislative history specifically approving of victim 

participation. In passing the Victims' Rights Clarification Act, the House 

Judiciary Committee stated that it "assumes that both the Department of 

Justice 'and victims will be heard on the issue of a victim's exclusion, should 

a question of their exclusion arise under this section."zz6 In the Senate, the 

denied). 

mid. at *2. 

mSee Motion of the Victims of the Oklahoma City Bombing to Reassert the Motion for 

a Hearing on the Application of the Victim Rights Clarification Act of 1997, United States v. 

McVeigh, No. 96-CR-68-M, 1997 WL 312104, at *6 (D. Colo. June 2,1997) (arguing for 

opportunity to participate in any argument or constitutionality and application of Act). 

2NSee Hearing on Victims Rights Clarification Act, United States v. McVeigh, No. 96-

CR-68-M, 1997 WL 290019, at *7 (D. Colo. June 3,1997) (concluding that statute does not 

"createD standing for the persons who are identified as being represented by counsel in filing 

that brief'). 

mSee. e.g .. Examination of Diane Leonard, United States v. McVeigh, No. 96-CR-68-M, 

1997 WL 292341. at *4 (D. Colo. June 4, 1997) (testifying that she was not unduly influenced 

by trial proceedings). 

""H.R. REp No. 105-28, at 10 (1997) (emphasis added). Supporting this statement was 

the fact that, while the Victims Bill of Rights apparently barred some civil suits by victims, 42 

U.S.c. § 10606(c). the new law contained no such provision. This was no accident. As the 

Heil10nline .. 1999 Utah i" Rev, 520 1999 
102 

No.2] BARBARIANS AT THE GATES? 521 

primary sponsor of the bill similarly stated: "In disputed cases, the courts will 

hear from the Department of Justice, counsel for the affected victims, and 

counsel for the accused.,,!27 Yet, the victims were never heard. 

Some might claim that this treatment of the Oklahoma City bombing 

victims should be written off as atypical. However, there is every reason to 

believe that the victims here were far more effective in attempting to 

vindicate their rights than victims in less nOtorious cases. The Oklahoma City 

bombing victims were mistreated while the media spotlight was on-when 

the nation was watching. The treatment of victims in forgotten courtrooms 

and trials is certainly no better, and in all likelihood much worse. Moreover, 

the Oklahoma City bombing victims had five lawyers working to press their 

claims in court-a law professor familiar with victims' rights, three lawyers 

at a prominent Washington, D.C. law firm, and a local counsel in Colorado-as well as an experienced and skilled group of lawyers from the 

Department of Justice. In the normal case, it often will be impossible for 

victims to locate a lawyer willing to pursue complex and unsettled issues 

about their rights without compensation. One must remember that crime most 

often strikes the poor and others in a weak position to retain counsel.228 

Finally, litigating claims concerning exclusion from the courtroom or other 

victims' rights promises to be quite difficult. For example, a victim may not 

learn that she will be excluded until the day the trial starts. Filing effective 

appellate actions in such circumstances promises to be practically impossible. 

It should therefore come as little surprise that this litigation was the first in 

which victims sought federal appellate court review of their rights under the 

Victims' Bill of Rights, even though that statute was passed in 1990. 

The undeniable, and unfortunate, result of that litigation has been to 

establish-as the only reported federal appellate ruling-a precedent that will 

make effective enforcement of the federal victims' rights statutes quite 

difficult. It is now the law of the Tenth Circuit that victims lack "standing" 

to be heard on issues surrounding the Victims' BiII of Rights and, for good 

measure, that the Department of Justice may not take an appeal asserting 

rights for victims under the statute.229 For all practical purposes, the treatment 

Report ofthe House Judiciary Committee pointedly explained: "The Committee points out that 

it has not included language in this statute that bars a cause of action by the victim, as it has 

done in other statutes affecting victims' rights." H.R. REp No. 105-28 at \0 (1997). 227 143 CONGo REC. S2507 (daily ed. Mar. 19, 1997) (statement of Sen. Nickles). 

22'See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, VIOLENT CRIME IN THE 

UNITED STATES 8 (1991) (noting that crime is more likely to strike low-income families); cf 

Henderson, supra note 135, at 579 (noting that many crime victims come from disempowered 

groups). 

229See United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997) (finding that 

victims lack standing to challenge law). 

Heill0nline -- 1999 Utah L. Rev. 521 1999 
103 

522 UTAH LAW REVIEW [1999: 479 

of crime victims' rights in federal court in Utah, Colorado, Kansas, New 

Mexico, Oklahoma, and Wyoming has been remitted to the unreviewable 

discretion of individual federal district court judges. The fate of the 

Oklahoma City victims does not inspire confidence that all victims' rights 

will be fully enforced in the future. Even in other circuits, the Tenth Circuit 

ruling, while not controlling, may be treated as having persuasive value. Ifso, 

the Victims' Bill of Rights will effectively become a dead letter. 

The Oklahoma City bombing victims would never have suffered these 

indignities if the Victims' Rights Amendment had been the law ofthe land. 

First, the victims would never have been subject to sequestration. The 

Amendment guarantees all victims the constitutional right "not to be 

excluded from[] any public proceedings relating to the crime.,,23o This would 

have prevented the sequestration order from being entered in the first place. 

Moreover, the Amendment affords victims the right "to be heard, if 

present, ... at [a public] proceeding[] to determine a ... sentence.,,231 This 

provision would have protected the victims' right to provide impact 

testimony. Finally, the Amendment provides that ''the victim ... shall have 

standing to assert the rights established by this article,'m2 a protection 

guaranteeing the victims, through counsel, the opportunity to be heard to 

protect those rights. 

Critics of the Victims' Rights Amendment have cited the Oklahoma City 

remedial legislation as an example of the "ability of victims to secure their 

interests through popular political action,,233 and "a paradigmatic example of 

how statutes, when properly crafted, can and do work.,,234 This sentiment is 

far wide of the mark. To the contrary, the Oklahoma City case provides a 

compelling illustration of why a constitutional amendment is "necessary" to 

fully protect victims' rights in this country. 

III. STRUCTURAL CHALLENGES 

A final category of objections to the Victims' Rights Amendment can be 

styled as "structural" objections. These objections concede both the 

normative claim that victims' rights are desirable and the factual claim that 

such rights are not effectively provided today. These objections maintain, 

however, that a federal constitutional amendment should not be the means 

230S.1. Res. 3, 106th Congo § I (1999). 

231Id. 

mId. § 2. 

233Mosteller, Unnecessary Amendment, supra note 13, at 460. 

lHS. REP. No. 105-409, at 56 (1998) (minority views of Sens. Leahy, Kennedy, and 

Kohl). 

Heill0nline .. 1999 Utah L. Rev. 522 1999 
104 

No.2] BARBARIANS AT THE GATES? 523 

through which victims' rights are afforded. These objections come in three 

primary forms. The standard form is that victims' rights simply do not belong 

in the Constitution as they are different from other rights found there. A 

variant on this critique is that any attempt to constitutionalize victims' rights 

wiIllead to inflexibility, producing disastrous. unintended consequences. A 

final form of the structural challenge is that the Amendment violates 

principles of federalism. Each of these arguments, however, lacks merit. 

A. Claims that Victims' Rights Do Not Belong in the Constitution 

Perhaps the most basic challenge to the Victims' Rights Amendment is 

that victims' rights simply do not belong in the Constitution. The most 

fervent exponent of this view may be constitutional scholar Bruce Fein, who 

has testified before Congress that the Amendment is improper because it does 

not address "the political architecture of the nation.,,235 Putting victims' rights 

into the Constitution, the argument runs, is akin to constitutionalizing 

provisions of the National Labor Relations Act or other statutes, and thus 

would "trivialize" the Constitution.236 Indeed, the argument concludes, to do 

so would "detract from the sacredness of the covenant.,,237 

This argument misconceives the fundamental thrust of the Victims' 

Rights Amendment, which is to guarantee victim participation in basic 

governmental processes. The Amendment extends to victims the right to be 

notified of court hearings, to attend those hearings, and to participate in them 

in appropriate ways. As Professor Tribe and I have explained elsewhere: 

These are rights not to be victimized again through the process by 

which government officials prosecute, punish and release accused or 

convicted offenders. These are the very kinds of rights with which our 

Constitution is typically and properly concerned-rights of individuals to 

participate in all those government processes that strongly affect their 

lives.238 

mproposals to Provide Rights to Victims o/Crime: Hearings on HJ. Res. 7J & HR. 

1322 Be/ore the House Comm. on the Judiciary, 105th Congo 96 (1997) (statement of Bruce 

Fein). 2361996 Senate Judiciary Comm. Hearings, supra note 8, at 101 (statement of Bruce 

Fein). 

mid. at 100. For similar views, see, for example. Stephen Chapman, Constitutional 

Clutter: The Wrongs o/the Victims' Rights Amendment, CHI. TRIB., Apr. 20, 1997, at A2I; 

Cluttering the Constitution, N.Y. TIMES, July IS, 1996. at A 12. 

238Tribe & Cassell, supra note 22, at B5. 

Heill0nline -- 1999 Utah L. Rev 521 1999 
105 

524 UTAH LAW REVIEW [1999:479 

Indeed, our Constitution has been amended a number of times to protect 

participatory rights of citizens. For example, the Fourteenth and Fifteenth 

Amendments were added, in part, to guarantee that the newly freed slaves 

could participate on equal terms in the judicial and electoral processes, the 

Seventeenth Amendment to allow citizens to elect their own Senators, and the 

Nineteenth and Twenty-Sixth Amendments to provide voting rights for 

women and eighteen-year-olds.239 The Victims' Rights Amendment continues 

in that venerable tradition by recognizing that citizens have the right to 

appropriate participation in the state procedures for punishing crime. 

Confirmation of the constitutional worthiness of victims' rights comes 

from the judicial treatment of an analogous right: the claim of the media to 

a constitutionally protected interest in attending trials. In Richmond 

Newspapers, Inc. v. Virginia,24o the Court agreed that the First Amendment 

guaranteed the right of the public and the press to attend criminal trials.241 

Since that decision, few have argued that the media's right to attend trials is 

somehow unworthy of constitutional protection, suggesting a national 

consensus that attendance rights to criminal trials are properly the subject of 

constitutional law. Yet, the current doctrine produces what must be regarded 

as a stunning disparity in the way courts handle claims of access to court 

proceedings. Consider, for example, two issues actually litigated in the 

Oklahoma City bombing case. The first was the request of an Oklahoma City 

television station for access to subpoenas for documents issued through the 

court. The second was the request of various family members of the murdered 

victims to attend the trial, discussed previously.242 My sense is that the 

victims' request should be entitled to at least as much respect as the media 

request. However, under the law that exists today, the television station has 

a First Amendment interest in access to the documents, while the victims' 

families have no constitutional interest in challenging their exclusion from 

the triaI.243 The point here is not to argue that victims deserve greater 

constitutional protection than the press, but simply that if press interests can 

"'u.S. CONST. amends. XIV, XV, XIX, XXVI. 

""448 U.S. 554 (1980). 

"'See id. at 557 (stating that right to attend criminal trials is implicit in guarantees of 

First Amendment). 

mSee supra Part II.B. 

"'Compare United States v. McVeigh, 918 F. Supp. 1452, 1465-66 (W.D. Okla. 1996) 

(recognizing press interest in access to documents), with United States v. McVeigh, 106 F.3d 

325, 335-36 (10th Cir. 1997) (finding that victims do not have standing to raise First 

Amendment challenge to order excluding them from trial). See a/so United States v. McVeigh, 

119 F.3d 806, 814-15 (10th Cir. 1997) (recognizing First Amendment interest of press in 

access to documents, but sufficient findings made to justify sealing order). 

Heil10nline -- 1999 Utah L. Rev. 524 1999 
106 

No.2] BARBARIANS AT THE GATES? 525 

be read into the Constitution without somehow violating the "sacredness of 

the covenant," the same can be done for victims?44 

Professor Henderson has advanced a variant on the victims' -rights-don 'tbelong-in-the-Constitution argument with her claim that "a theoretical 

constitutional ground for victim's rights" has yet to be provided.l4' Law 

professors, myself included, enjoy dwelling on theory at the expense of realworld issues, but even on this plane, the objection lacks merit. Henderson 

seems to concede, in read her correctly, that new constitutional rights can be 

justified on grounds that they support individual dignity and autonomy?46 In 

her view, then, the question becomes one of discovering which policies 

society should support as properly reflecting individual dignity and autonomy. On this score, there is little doubt that society currently believes that a 

victim's right to participate in the criminal process is a fundamental one 

deserving protection. As Professor Beloofhas explained at length in his piece 

here, "It is time to face the fact that the law now acknowledges the importance of victim participation in the criminal process.,,247 

A further variant on the unworthiness objection is that our Constitution 

protects only "negative" rights against governmental abuse. Professor 

Henderson writes here, for example, that the Amendment's rights differ from 

others in the Constitution, which "tend to be individual rights against 

government.,,24B Setting aside the possible response that the Constitution 

ought to recognize affirmative duties of government,249 the fact remains that 

2 .... ln this way, the Amendment does not detract from First Amendment libcnies. but 

expands them. But cf Henderson, supra note 14, at 420 (suggesting that victims' rights 

arguably could affect First Amendment libenies, but conceding that "advocates of the 

Amendment have not argued for a balancing of victim's rights against the rights of the press"). 

,., Id. at 386. 

2'·See id. at 396-400. 

wBeloof, supra note 9, at 289; see also id. at 328 app. a (compiling victim panicipation 

laws from state to state); Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment 

to the Constillltion oJthe United States: Opening the Door oJthe Criminal Justice System to 

the Victim. 14 ARtZ. 1. OF INT'L & COMPo L. 839, 868-72 (1997) (discussing fundamental nature 

of victims' rights); Note, Passing the Victims' Rights Amendment: A Nation's March Toward 

a More Perfect Union, 24 CRlM. & CIv. CONFINEMENT 647, 681-85 (1998) (same). See 

generally BELOOF, supra note 128,passim (legal case book replete with examples of victims' 

rights in process). 

2<KHenderson, supra note 14, at 397; see also 1996 House Judiciary Comm. Hearings. 

supra note 7, at 194 (statement of Roger Pilon) (stating that Amendment has "feel" of listing 

'''rights' not as libenies that government must respect as it goes about its assigned functions 

but as 'entitlements' that the government must affirmatively provide"); Bruce Shapiro. Victims 

& j'engeance: Why the Victims' Rights Amendment Is a Bad Idea, THE NATION, Feb. 10, 1997, 

at 16 (suggesting that Amendment "[u]pends the historic purpose of the Bill of Rights"). 

mSee Bandes, The Negative Constitution, supra note 182, at 2308-09 (suggesting that 

Constitution should be read to recognize and protect affirmative rights). 

Heil10nIine .. 1999 Utah L. Rev. 525 1999 
107 

526 UTAH LAW REVIEW [1999: 479 

the Amendment's thrust is to check governmental power, not expand it.25v 

Again, the Oklahoma City case serves as a useful'illustration. When the 

victims filed a challenge to a sequestration order directed at them, they sought 

the liberty to attend court hearings. In other words, they were challenging the 

exercise of government power deployed against them, a conventional subject 

for constitutional protection. The other rights in the Amendment fit this 

pattern, as they restrain government actors, rather than extract benefits for 

victims. Thus, the State must give notice before it proceeds with a criminal 

trial; the State must respect a victim's right to attend that trial; and the State 

must consider the interests of victims at sentencing and other proceedings. 

These are the standard fare of constitutional protections, and indeed 

defendants already possess comparable constitutional rights. Thus, extending 

these rights to victims is no novel creation of affirmative government 

entitlements.l51 

Still another form of this claim is that victims' rights need not be 

protected in the Constitution because victims possess power in the political 

process-unlike, for example, unpopular criminal defendants.252 This claim 

is factually unconvincing because victims' power is easy to overrate. 

Victims' claims inevitably bump up against well-entrenched interests within 

the criminal justice system,253 and to date, the victims' movement has failed 

to achieve many of its ambitions. Victims have not, for example, generally 

1SUSee Beloof. supra note 9, at 295 n.32. 

mPerhaps some might quibble with this characterization as applied to a victim's right 

to an order of restitution, contending that this is a right solely directed against deprivations 

perpetrated by private citizens. However, the right to restitution is a right against government. 

as it is a right to "an order of restitution," an order that can only be provided by the courts. In 

any event. even if the restitution right is somehow regarded as implicating private action, it 

should be noted that the Constitution already addresses private conduct. The Thirteenth 

Amendment forbids "involuntary servitude," U.S. CONST. amend. XIII, a provision that 

encompasses private violation of rights. See, e.g., United States v. Kozminski, 487 U.S. 931. 

942 (1988) (stating that Thirteenth Amendment extends beyond state action). See generally 

Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment 

Response to Deshaney, 105 HARV. L. REV. 1359, 1365-68 (1992) (discussing contours of 

Thirteenth Amendment); Henderson, supra note 14, at 387-88 (noting "good arguments" that 

Thirteenth Amendment "appl[ies] to the acts of individuals''}. 

mSee. e.g., 1996 Senate Judiciary Comm. Hearings, supra note 8, at 100 (statement of 

Bruce Fein) (stating that defendants are subject to whims of majority); Henderson. supra note 

14, at 400 (asserting that victims' rights are protected through democratic process); Mosteller. 

supra note 13, at 474 (maintaining that defendants are despised and politically weak, thus 

needing constitutional protection). 

mSee Andrew J. Karmen, Who's Against Victims' Rights? The Nalllre oJtlre Opposition 

to Pro-Victim Initiatives in Criminal JlIStice, 8 ST. JOHN'S J. OF LEGAL COMMENT. 157, 162-69 

(1992) (stating that ifvictims gain influence in criminal justice process, they will inevitably 

connict with officials). 

Heill0nline -- 1999 Utah L. Rev. 526 1999 
108 

No.2] BARBARIANS AT THE GATES? 527 

obtained the right to sue the government for damages for violations of their 

rights, a right often available to criminal defendants and other ostensibly less 

powerful groups. Additionally, the political power claim is theoretically 

unsatisfying as a basis for denying constitutional protection. After all, 

freedom of speech, freedom of religion, and similar freedoms hardly want for 

lack of popular support, yet they are appropriately protected by constitutional 

amendments. A standard justification for these constitutionally guaranteed 

freedoms is that we should make it difficult for society to abridge such rights, 

to avoid the temptation to violate them in times of stress or for unpopular 

claimants.254 Victims' rights fit perfectly within this rationale. Institutional 

players in the criminal justice system are subject to readily understandable 

temptations to give short shrift to victims' rights, and their willingness to 

protect the rights of unpopular crime victims is sure to be tested no less than 

society's willingness to protect the free speech rights of unpopular 

speakers.2SS Indeed, evidence exists that the biggest problem today in 

enforcing victims' rights is inequality, as racial minorities and other less 

empowered victims are more frequently denied their rights.2S6 

A final worthiness objection is the claim that victims' rights ''trivialize'' 

the Constitution,257 by addressing such a mundane subject. It is hard for 

anyone familiar with the plight of crime victims to respond calmly to this 

claim. Victims of crime literally have died because of the failure of the 

criminal justice system to extend to them the rights protected by the 

Amendment. Consider, for example, the victims' right to be notified upon a 

prisoner's release. The Department of Justice recently explained that 

[a]round the country, there are a large number of documented cases of 

women and children being killed by defendants and convicted offenders 

recently released from jail or prison. In many of these cases, the victims 

Z3'See Abrams v. United States. 250 U.S. 616, 630 (1919) (Holmes, 1., dissenting) 

(stating that we should be vigilant against attempts to infringe on free speech rights, unless 

danger and threat is immediate and clear); see also Vincent Blasi, The Pathological 

Perspective and the First Amendment, 85 COLUM. L. REV. 449,449-52 (1985) (arguing that 

First Amendment should be targeted to protect free speech rights even at worst times). 

~;See Kannen, supra note 253, at 168-69 (explaining why criminal justice professionals 

are particularly unlikely to honor victims' rights for marginalized groups). 

mSee NVC RACE SUB-REpORT. supra note 159, at 5 ("[I]n many instances non-white 

victims were less likely to be provided [crime victims'] rights .... "). 

m 1996 Senate Judiciary Comm. Hearings, supra note 8, at 101 (statement of Bruce 

Fein); see also S. REp. No. 105-409. at 54 (1998) (minority views ofSens. Leahy, Kennedy. 

and Kohl) ("We should not diminish the majesty of the Constitution .... "). 

Heill0nline .. 1999 Utah L. Rev. 527 1999 
109 

528 UTAH LAW REVIEW [1999: 479 

were unable to take precautions to save their lives because they had not 

been notified.253 

The tragic unnecessary deaths of those victims is, to say the least, no trivial 

concern. 

Other rights protected by the Amendment are similarly consequential. 

Attending a trial, for example, can be a crucial event in the life of the victim. 

The victim's presence can not only facilitate healing of debilitating psychological wounds,2S9 but also help the victim try to obtain answers to haunting 

questions. As one woman who lost her husband in the Oklahoma City 

bombing explained, "When I saw my husband's body, I began a quest for 

information as to exactly what happened. The culmination of that quest, I 

hope and pray, will be hearing the evidence at a trial.,,260 On the other hand, 

excluding victims from trials-while defendants and their families may 

remain-can itself revictimize victims, creating serious additional or 

"secondary" harm from the criminal process itself.z61 In short, the claim that 

the Victims' Rights Amendment trivializes the Constitution is itself a trivial 

contention. 

B. The Problem of Inflexible Constitulionalization 

Another argument raised against the Victims' Rights Amendment is that 

victims' rights should receive protection through flexible state statutes and 

amendments, not an inflexible, federal, constitutional amendment. Ifvictims' 

rights are placed in the United States Constitution, the argument runs, it will 

be impossible to correct any problems that might arise. The Judicial 

Conference explication of this argument is typical: "Of critical importance, 

such an approach is significantly more flexible. It would more easily 

accommodate a measured approach, and allow for 'fine tuning' if deemed 

mOFFlCE FOR VICTIMS OF CRIME. U.S. DEP'T OF JUSTICE, NEW DIRECTIONS FROM THE 

FIELD: VICTIMS' RIGHTS AND SERVICES FOR THE 21ST CENTURY 13-14 (1998); see Jeffrey A. 

Cross, Note, The Repealed Sufferings 0/ Domestic l'iolence Victims Not Notified 0/ Their 

Assailant's Pre-Trial Releasefrom Custody. A Calf/or Mandatory Domestic Violence Victim 

Notification Legislation, 341. FAM. L. 915.932-33 (1996) (arguing for legislation that requires 

notification to victim when assailant is released from prison). 

2;'See supra notes 92-99 and accompanying text (discussing how victim participation 

can have healing effect). 

2'°1997 Senale JudiciQ/y Comm. Hearings. supra nole 6, at 110 (statement of Paul 

Cassell) (quoting victim). 

wSee supra notes 92-99 and accompanying I~XI. 

Heill0nline -- 1999 Utah L. Rev. 52X 1999 
110 

No.2] BARBARIANS AT THE GATES? 529 

necessal)' or desirable by Congress after the various concepts in the Act are 

applied in actual cases across the countl)'.,,262 

This argument contains a kernel of truth because its premise-that the 

Federal Constitution is less flexible than state provisions-is undeniably 

correct. This premise is, however, the starting point for the victims' position 

as well. Victims' rights all too often have been "fine tuned" out of existence. 

As even the Amendment's critics agree, state amendments and statutes are 

"far easier ... to ignore,,,263 and for this vel)' reason victims seek to have their 

rights protected in the Federal Constitution. To carl)' any force, the argument 

must establish that the greater respect victims will receive from 

constitutionalization of their rights is outweighed by the unintended, 

undesirable, and uncorrectable consequences of lodging rights in the 

Constitution. 

Such a claim is untenable. To begin with, the Victims' Rights Amendment spells out in considerable detail the rights it extends. While this 

wordiness has exposed the Amendment to the charge of "cluttering the 

Constitution,"Z64 the fact is that the room for surprises is substantially less 

than with other previously adopted, more open-ended amendments. On top 

of the Amendment's precision, its sponsors further have explained in great 

detail their intended interpretation of the Amendment's provisions.265 In 

response, the dissenting Senators were forced to argue not that these 

explanations were imprecise or unworkable, but that courts simply would 

ignore them in interpreting the Amendmenf66 and, presumably, go on to 

impose some contral)' and damaging meaning. This is an unpersuasive leap 

because courts routinely look to the intentions of drafters in interpreting 

constitutional language no less than other enactments.267 Moreover, the 

assumption that courts will interpret the Amendment to produce great 

mischief requires justification. One can envision, for instance, precisely the 

same arguments about the need for flexibility being leveled against a 

262S. REp. No. 105-409, at 53 (1998) (reprinting Letter from George P. Kazen, Chief U.S. 

District Judge, Chair, Comm. on Criminal Law of the Judicial Conference of the United States, 

to Sen. Edward M. Kennedy, Senate Comm. on the Judiciary 2 (Apr. 17. 1997)). 

163/996 House Judiciory Comm. Hearings. supra note 7, at 147 (statement of Ellen 

Greenlee, Nat'l Legal Aid & Defender Assoc.). 

2"'C/lll1ering Ihe Conslillliion. N. Y. TIMES, July 15. 1996, at A 12 (arguing that political 

expediency is no excuse for amending Constitution). 

wSee S. REp. No. 105-409, at 22-37 (1998) (considering specific analysis of each 

section of Amendment). 

166See id. at 50-51 (minority views ofSens. Leahy, Kennedy, and Kohl) (arguing that 

"courts will not care much" for analysis in Senate Report). 

267See. e.g., U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 790 (1995). 

Heil10nline -- 1999 Utah L. Rev. 529 1999 
111 

530 UTAH LAW REVIEW [1999: 479 

defendant's right to a trial by jury?68 What about petty offenses?269 What 

about juvenile proceedings?270 How many jurors will be required171 All these 

questions have, as indicated in the footnotes, been resolved by court decision 

without disaster to the Union. There is every reason to expect that the 

Victims' Rights Amendment will be similarly interpreted in a sensible 

fashion. Just as courts have not read the seemingly unqualified language of 

the First Amendment as creating a right to yell "Fire!" in a crowded 

theater,272 they will not construe the Victims' Rights Amendment as requiring 

bizarre results.273 

In any event, the claim of unintended consequences amounts to an 

argument about language-specifically, that the language is insufficiently 

malleable to avoid disaster. An argument about inflexible language can be 

answered with language providing elasticity. The Victims' Rights Amendment has a provision addressed precisely to this point. The Amendment 

provides that "[e]xceptions to the rights established by this article may be 

created ... when necessary to achieve a compelling interest."274 Any parade 

ofhorribles collapses under this provision. A serious unintended consequence 

under the language of the Amendment is, by definition, a compelling reason 

for creating an exception. Curiously, those who argue that the Amendment 

is not sufficiently flexible to avoid calamity have yet to explain why the 

exceptions clause fails to guarantee all the malleability that is needed. 

'·'See U.S. CONST. amend. VI ("[T]he accused shall enjoy the right to a ... trial[] by an 

impartial jury .... "). 

'··See Baldwin v. New York, 399 U.S. 66, 73-74 (1970) (holding that jury trial is 

required for petty offenses as long as possible jail time exceeds six months). 

""See McKeiver v. Pennsylvania, 403 U.S. 528, 549-51 (1971) (holding that jury trial 

is not required in juvenile proceedings). 

271See Williams v. Florida, 399 U.S. 78,103 (1970)(holding that six-personj"ury satisfies 

Sixth Amendment). 

l72See Schenck v. United States, 249 U.S. 47, 52 (1919) (noting that First Amendment 

does not allow person to yell "Fire!" in crowded theater). 

mCritics of the Amendment have been forced to use improbable examples to suggest that 

the Amendment will create unintended difficulties. See 1997 Senate Judiciary Comm. 

Hearings, supra note 6, at 117-21 (statement of Paul Cassell). It is interesting on this score to 

nOle that the law professors opposed to the Amendment were unable to cite any real-world 

examples of language in the many state victims' rights amendments that has produced serious 

unintended consequences. See id. at 140 (leiter from law professors); 1996 HOl/se Judiciary 

Comn!. Hearings, supra note 7, at 225 (letter from law professors). 

"'SJ. Res. 3, 106th Congo § 3 (1999). 

Heil10nline .. 1999 Utah L. Rev. 510 1999 
112 

No.2] BARBARlANS AT THE GATES? 531 

C. Federalism Objections 

A final structural challenge to the Victims' Rights Amendment is the 

claim that it violates principles of federalism by mandating rights across the 

country. For example, a 1997 letter from various law professors objected that 

"amending the Constitution in this way changes basic principles that have 

been followed throughout American history .... The ability of states to 

decide for themselves is denied by this Amendment.',z75 Similarly, the 

American Civil Liberties Union warned that the Amendment "constitutes [aJ 

significant intrusion of federal authority into a province traditionally left to 

state and local authorities.,,276 

The inconsistency of many of these newfound friends of federalism is 

almost breathtaking. Where were these law professors and the ACLU when 

the Supreme Court federalized a whole host of criminal justice issues ranging 

from the right to counsel, to Miranda, to death penalty procedures, to search 

and seizure rules, among many others? The answer, no doubt, is that they 

generally applauded nationalization of these criminal justice standards 

despite the adverse effect on the ability of states "to decide for themselves." 

Perhaps the law professors and the ACLU have had some epiphany and mean 

now to launch an attack on the federalization of our criminal justice system, 

with the goal of returning power to the states. Certainly quite plausible 

arguments could be advanced in support of trimming the reach of some 

federal doctrines.277 But whatever the law professors and the ACLU may 

think, it is unlikely that we will ever retreat from our national commitment to 

afford criminal defendants basic rights like the right to counsel. Victims are 

not asking for any retreat, but for an extension-for a national commitment 

to provide basic rights in the process to criminal defendants and to their 

victims. This parallel treatment works no new damage to federalist 

principles.278 

27;1997 Senate Judiciary Comm. Hearings, supra note 6, at 140-41 (letter from law 

professors); see also Mosteller, Unnecessary Amendment. supra note 13, at 444 (suggesting 

that "flexible uniformity" may be accomplished through federal legislation and incentives). 276 1997 Senale Judiciary Comm. Hearings, SZlpra note 6, at 159. 

mSee• e.g., Donald A. Dripps, Foreword: Against Police Interrogation-And lire 

Privilege Against Self-Incriminalion, 78 1. CRIM. L. & CRtMINOLOGY 699, 701-02 (1988) 

(arguing for reduction of federal involvement in Miranda rights); Barry Latzer. Toward tire 

Decenlrali=ation of Criminal Procedure: State Constitutional Law and Selective 

Disincorporation, 871. CRIM. L. & CRIMINOLOGY 63, 63-70 (1996) (arguing that state 

constilutional development has reduced need for federal protections). 

2731f federalism were a serious concern of the law professors, one would also expect to 

see them supporting language in the Amendment guaranteeing flexibility for the states. Y ~t, 

the professors found fault with language in an earlier version of the Amendment that gave both 

Congr~ss and lire states the power to "enforce" the Amendment. See 1997 Senate Judiciary 

Heil10nline -- ]999lJtah L. Rev. 51] ]999 
113 

532 UTAH LAW REVIEW [1999: 479 

Precisely because of the constitutionalization and nationalization of 

criminal procedure, victims now find themselves needing constitutional 

protection. In an earlier era, it may have been possible for judges to 

informally accommodate victims' interests on an ad hoc basis. But the coin 

of the criminal justice realm has now become constitutional rights. Without 

those rights, victims have not been taken seriously in the system. Thus, it is 

not a victims' rights amendment that poses a danger to state power, but the 

lack of an amendment. Without an amendment, states cannot give full effect 

to their policy decision to protect the rights of victims. Only elevating these 

rights to the Federal Constitution will solve this problem. This is why the 

National Governor's Association-a long-standing friend offederalism-has 

strongly endorsed the Amendment: 

The rights of victims have always received secondary consideration within 

the U.S. judicial process, even though states and the American people by 

a wide plurality consider victims' rights to be fundamental. Protection of 

these basic rights is essential and can only come from a fundamental 

change in our basic law: the U.S. Constitution.279 

While the Victims' Rights Amendment will extend basic rights to crime 

victims across the country, it leaves considerable room to the states to 

determine how to accord those rights within the structures of their own 

systems. For starters, the Amendment extends rights to a "victim of a crime 

of violence, as these terms may be defined by law.'Q80 The "law" that will 

define these crucial terms will come from the states. Indeed, states retain a 

bedrock of control over all victims' rights provisions-without a state statute 

defining a crime, there can be no "victim" for the criminal justice system to 

consider.281 The Amendment also is written in terms that will give the states 

considerable latitude to accommodate legitimate local interests. For example, 

the Amendment only requires the states to provide "reasonable" notice to 

victims, avoiding the inflexible alternative of mandatory notice (which, by the 

way, is required for criminal defendantg282). 

Comm. Hearings, supra note 6. at 141 (letter from law professors). 

27~ational Governors Association, Executive Committee Policy 23.1 ("Protecting 

Victims' Rights") (effective winter 1997 to winter 1999) (visited Mar. 3, 1999) 

<http://www.nga.org/pubslPolicies/EC/ec23.asp>. 

28USJ. Res. 3, I06th Congo § I ( 1999) (emphasis added). 

28iSee BElOOF, supra note 128, at 41-43 (discussing and listing various legal definitions 

of "victim''), 

"'See United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir. 1990) (requiring notice to 

apprise defendant of nature of proceedings against him). 

Heill0nline .. 1999 Utah L. Rev. 512 1999 
114 

No.2] BARBARIANS AT THE GATES? 533 

In short, federalism provides no serious objection to the Amendment. 

Any lingering doubt on the point disappears in light of the Constitution's 

prescribed process for amendment, which guarantees ample involvement by 

the states. The Victims' Rights Amendment will not take effect unless a full 

three-quarters of the states, acting through their state legislatures, ratify the 

Amendment within seven years of its approval by Congress.283 It is critics of 

the Amendment who, by opposing congressional approval, deprive the states 

of their opportunity to consider the proposal.284 

CONCLUSION 

This Article has attempted to review thoroughly the various objections 

leveled against the Victims' Rights Amendment, finding them all wanting. 

While a few normative objections have been raised to the Amendment, the 

values undergirding it are widely shared in our country, reflecting a strong 

consensus that victims' rights should receive protection. Contrary to the 

claims that a constitutional amendment is somehow unnecessary, practical 

experience demonstrates that only federal constitutional protection will 

overcome the institutional resistence to recognizing victims' interests. And 

while some have argued that victims' rights do not belong in the Constitution, 

in fact the Victims' Rights Amendment addresses subjects that have long 

been considered entirely appropriate for constitutional treatment. 

Stepping back from these individual objections and viewing them as a 

whole reveals one puzzling feature that is worth a few concluding observations. While some of the objections are thoughtfully advanced,285 many are 

contradicted by either specific language in the Amendment or real-world 

experience with the implementation of victims' rights programs. I hasten to 

add that others have observed this phenomenon of unsustainable arguments 

being raised against victims' rights. One careful scholar in the field of victim 

impact statements, Professor Edna Erez, comprehensively reviewed the 

relevant empirical literature and concluded that the actual experience with 

'"'See U.S. CONST. amend. V; S.l. Res. 3, 106th Congo Preamble (\999); see also THE 

FEDERALIST No. 39 (James Madison) (discussing process of amending Constitution). 

2"Cj RICHARD B. BERNSTEIN, AMENDING AMERICA 220 (1993) (recalling defeat of Equal 

Rights Amendment in states and observing that .. [t]he significant role of state governments as 

participants in the amending process is thriving''); Mosteller, Unnecessary Amendment. supra 

note 13, at 451 n.21 (noting that "unfunded mandates" argument is "arguably inapposite for 

a constitutional amendment that must be support.:d by three-fourths of the states since the vast 

majority of states would have approved imposing the requirement on themselves"). 

28lFor three particularly thoughtful discussions of criticisms of the Amendment, see 

Bandes, supra note 1\, passim; Mosteller, Unnecessary Amendment, supra note 13, passim; 

Henderson, supra note \4, passim. 

Heil10nline -- 1999 Utah L. Rev. 511 1999 
115 

534 UTAH LAW REVIEW [1999: 479 

vIctIm participatory rights "suggests that allowing victims' input into 

sentencing decisions does not raise practical problems or serious challenges 

from the defense. Yet there is a persistent belief to the contrary, particularly 

among legal scholars and professionals."286 Erez attributed the differing views 

of the social scientists (who had actually collected data on the programs in 

action) and the legal scholars primarily to "the socialization of the latter 

group in a legal culture and structure that do not recognize the victim as a 

legitimate party in criminal proceedings."187 

The objections against the Victims' Rights Amendment, often advanced 

by attorneys, provide support for Erez's hypothesis. Many of the complaints 

rest on little more than an appeal to retain a legal tradition that excludes 

victims from participating in the process, to in some sense leave it up to the 

"professionals"-the judges, prosecutors, and defense attorneys-to do 

justice as they see fit. Such entreaties may sound attractive to members of the 

bar, who not only have vested interests in maintaining their monopolistic 

control over the criminal justice system, but also have grown up without any 

exposure to crime victims or their problems. The "legal culture" that Erez 

accurately perceived is one that has not made room for crime victims. Law 

students learn to "think like lawyers" in classes such as criminal law and 

criminal procedure, where victims' interests receive no discussion. In the first 

year in criminal law, students learn in excruciating detail to focus on the state 

of mind of a criminal defendant, through intriguing questions about mens rea 

and the like.288 In the second year, students may take a course on criminal 

procedure, where defendants' and prosecutors' interests under the constitutional doctrine governing search and seizure, confessions, and right to 

counsel are the standard fare. Here, too, victims are absent.289 The most 

popular criminal procedure casebook, for example, spans some 877 pages;290 

286Erez, Victim PartiCipation, supra note 69, at 28; accord Deborah P. Kelly & Edna 

Erez, Victim Participation in the Criminal Justice System. in VICTIMS OF CRIME 231, 241 

(Robert C. Davis ed., 2d ed. 1997). 

mId. at 29; see also Erez& Rogers, supra note 69, at 234-35 (noting similar barriers to 

implementing vietims refonns in South Australia); Edna Erez & Kathy Laster, Neutralizing 

Victim Refonn: Legal Professionals' Perspectives on Victims and Impact Statements passim 

(Dec. 16,1998) (unpublished manuscript. on file with author) (discussing how and why legal 

professionals resist refonn of criminal justice process through increased victim participation). 

2S8For a good example of the standard criminal law curriculum, see ROLLIN M. PERKINS 

& RONALD N. BOYCE, CRIMINAL LAW AND PROCEDURE: CASES AND MATERIALS (7th ed. 1989). 

28'For a comprehensive and cogent examination of the absence of victims in criminal 

procedure courses, see Douglas E. Beloof, Are Your Criminal Procedure Students Out of 

Touch? A Review of Criminal Procedure Casebooks for Material on the Role of the Crime 

Victim (unpublished manuscript, on file with author). 

290y ALE KAMISAR ET AL., BASIC CRIMINAL PROCEDURE: CASES, COMMEI'ITS AND 

QUESTIONS (8th ed. 1994). 

Heil10nline .. 1999 Utah L. Rev. 514 1999 
116 

No.2] BARBARIANS AT THE GATES? 535 

yet, victims' rights appear only in two paragraphs, made nece.ssary because 

in California, a victims' rights initiative affected a defendant's right to 

exclude evidence.291 Finally, in their third year, students may take a clinical 

course in the criminal justice process, where they may be assigned to assist 

prosecutors or defense attorneys in actual criminal cases. Not only are they 

never assigned to represent crime victims, but in courtrooms they will see 

victims frequently absent, or participating only through prosecutors or the 

judicial apparatus, such as probation officers. 

Given this socialization, it is no surprise to find that when those lawyers 

leave law school, they become part of a legal culture unsympathetic, if not 

overtly hostile, to the interests of crime victims?92 The legal insiders view 

with great suspicion demands from the outsiders-the barbarians, if you 

will-to be admitted into the process. A prime illustration comes from Justice 

Stevens's concluding remarks in his dissenting opinionin Payne v. Tennessee.293 He found it almost threatening that the Court's decision admitting 

victim impact statements would be "greeted with enthusiasm by a large 

number of concerned and thoughtful citizens.,,294 For Justice Stevens, the 

Court's decision to structure this rule of law in a way consistent with public 

opinion was "a sad day for a great institution.,,295 To be sure, the Court must 

not allow our rights to be swept away by popular enthusiasm. But when the 

question before the Court is the separate and ancillary one of whether to 

recognize rights for victims, one would think that public consensus on the 

legitimacy of those rights would be a virtue, not a vice. As Professor Gewirtz 

has thoughtfully concluded after reviewing this same passage, "[T]he place 

of public opinion cannot be dismissed so quickly, with 'a sad day' proclaimed 

because a great public institution may have tried to retain the confidence of 

its public audience.,,296 

Justice Stevens's views were, on that day at least,297 in the minority, but 

in countless other ways, his antipathy to recognizing crime victims prevails 

in the day-to-day workings of our criminal justice system. Fortunately, there 

is a way to change this hostility, to require the actors in the process to 

2Y'See id at 60 (discussing CAL. CONST. art. J, § 28, the "truth-in-evidence" provision). 

z"One hopeful sign of impending change is the publication of an excellent casebook 

addressing victims in criminal procedure. See BELOOF, supra note 128. 293501 U.S. 808 (1991). 

lY'fd. at 867 (Stevens, J., dissenting). 

2.'!d. (Stevens, J., dissenting). 

z.6Gewirtz, supra note 76, at 893. 

me! South Carolina v. Gathers, 490 U.S. 805, 811-12 (1989) (finding victim impact 

statements in capital cases unconstitutional); Booth v. Maryland, 482 U.S. 496, 508 (1987) 

(same). 

Heil10nline -- 1999 Utah L. Rev. 515 1999 
117 

536 UTAH LAW REVIEW [1999: 479 

recognize the interests of victims of crime. As Thomas Jefferson once 

explained, 

Happily for us, ... when we find our constitutions defective and 

insufficient to secure the happiness of our people, we can assemble with 

all the coolness of philosophers, and set them to rights, while every other 

nation on earth must have recourse to arms to amend or to restore their 

constitutions.z98 

Our nation, through its assembled representatives in Congress and the state 

legislatures, should use the recognized amending power to secure a place for 

victims' rights in our Constitution. While conservatism is often a virtue, there 

comes a time when the case for reform has been made. Today the criminal 

justice system too often treats victims as second-class citizens, almost as 

barbarians at the gates that must be repelled at all costs. The widely shared 

view is that this treatment is wrong, that victims have legitimate concerns that 

can-indeed must-be fully respected for the system to be fair and just. The 

Victims' Rights Amendment is an indispensable step in that direction, 

extending protection for the rights of victims while doing no harm to the 

rights of defendants and of the public. The Amendment will not plunge the 

crim inal justice system into the dark ages, but will instead herald a new age 

of enlightenment. It is time for the defenders of the old order to recognize 

these facts, to help swing open the gates, and welcome victims to their 

rightful place in our nation's criminal justice system. 

"" Thomas Jefferson, Letter to C.W.F. Dumas, Sept. 1787, reprinted in THE JEI'FERSONIAN CYCLOPIDIA 198 (John P. Foley ed., 1900). 

Heill0nline -- 1999 Utah L. Rev. 516 1999 
118 

No.2] BARBARIANS AT THE GATES? 537 

ApPENDIX A. TEXT OF THE PROPOSED VICTIMS' RIGHTS AMENDMENT 

1 06TH CONGRESS, 1 ST SESSION 

S. J.RES. 3 

Proposing an amendment to the Constitution of the United States to 

protect 

the rights of crime victims. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 19, 1999 

Mr. KYL (for himself, Mrs. FEINSTEIN, Mr. BIDEN, Mr. GRASSLEY, Mr. 

INOUYE, Mr. DE WINE, Ms. LANDRIEU, Ms. SNOWE, Mr. LIEBERMAN, 

Mr. MACK, Mr. CLELAND, Mr. COVERDELL, Mr. SMITH of New 

Hampshire, Mr. SHELBY, Mr. HUTCHINSON, Mr. HELMS, Mr. FRIST, Mr. 

GRAMM, Mr. LOTI, and Mrs. HUTCHISON) introduced the following 

joint resolution; which was read twice and referred to the Committee on 

the Judicial)' 

JOINT RESOLUTION 

Proposing an amendment to the Constitution of the United States to 

protect the rights of crime victims. 

Resolved by the Senate and House of Representatives of the United 

States of America in Congress assembled (two-thirds of each House 

concurring therein), That the following article is proposed as an amendment 

to the Constitution of the United States, which shall be valid for all intents 

and purposes as part of the Constitution when ratified by the legislatures of 

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

submission by the Congress: 

"ARTICLE-

"SECTION I. A victim of a crime of violence, as these tenns may be 

defined by law, shall have the rights: 

Heill0nline -- 1999 Utah L. Rev. 517 1999 
119 

538 UTAH LAW REVIEW [1999: 479 

"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/99 

"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 

2"'This clause was added during deliberations in the Subcommittee on the Constitution, 

Federalism, and Property Rights. 

Heill0nline -- 1999 Utah L. Rev. 51X 1999 
120 

No.2] BARBARIANS AT THE GATES? 539 

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." 

Heil10nline -- 1999 Utah L. Rev. 519 1999 
121 

540 UTAH LAW REVIEW 

ApPENDIX B: DO VICTIM IMPACT STATEMENTS 

INCREASE THE NUMBER OF DEATH SENTENCES? 

[1999: 479 

While much speculation has been bandied about concerning the effect 

of victim impact statements on capital sentences, surprisingly little hard 

research on the subject has been conducted. The available empirical research 

on victim impact statements in noncapital cases has generally found, at most, 

a modest effect on sentence severity?OO This Appendix offers some tentative 

empirical observations that support the same conclusion about victim impact 

statements in capital cases. 

In 1991, the Supreme Court specifically approved the adm ission of 

victim impact statements in capital cases in Payne v. Tennessee?OI This 

decision triggered a number of scholarly articles suggesting that the effect 

would be to make it easier for prosecutors to obtain death sentences,30Z but 

empirical follow-up on this question has been scant. One possible way of 

researching the assertion is simply to look at the total number of death 

sentences returned after Payne to determine whether they increased. In the 

same vein, it may be useful to examine whether the number of death 

sentences decreased after Booth v. Maryland/o3 the Supreme Court's decision 

four years earlier in 1987 barring victim impact statements in capital cases. 

300See supra notes 62-73 and accompanying text (asserting that empirical evidence 

suggests that victim impact statements might have modest effect on sentence severity). 

30150 I U.S. 808, 832-33 (1991) (holding that Eighth Amendment does not prohibit State 

from choosing to admit certain evidence with regard to victim's personal characteristics or 

impact of crime). 

302See. e.g., Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument 

After Payne v. Tennessee, 45 STAN. L. REv. 1027, 1046 (1993) (asserting that victim impact 

statements will motivate jurors to impose death penalties out of emotion); Beth E. Sullivan, 

Note, Harnessing Payne: Controlling the Admission of Victim Impact Statements to Safeguard 

Capital Sentencing Hearings/rom Passion and Prejudice, 25 FORDHAM URB. L.J. 601,630 

(1998) (noting that victim impact statements create greater possibilities for prosecutors to seek 

death penalty). 

303482 U.S. 496, 502--03 (1987) (holding that victim impact statements create risk that 

"a death sentence will be based on considerations that are 'constitutionally impermissible or 

totally irrelevant to the sentencing process"'). 

Heil10nline -- 1999 Utah L. Rev. 540 1999 
122 

No.2] BARBARIANS AT THE GATES? 541 

Such time series analyses have been used to investigate the impact of other 

legal changes304 and constitute a standard way of analyzing legal reforrns?OS 

The time series for death sentences returned in this country over the last 

quarter century is shown in Figure 1.306 

500 

450 

400 

0; 350 Ci '"

2 300 "" '" 0 

c 

'" 250 E

CIl '" 

'- 200 '" J:J 

E 

'" 150 :z

100 

50 

0 

... 

1;; 

FIGURE 1: DEFENDANTS SENTENCED TO DEATH 

(1973 TO 1997) 

" ',' 

on r- ~ ;;0 ... on " '" !;; r- oo 00 00 00 ;;; ~ 

2: 2: 2: ~ ~ ~ 2: 2: 2: 

Year of Sentence 

on r-

'" 2: ~ 

3"'See, e.g., Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year 

Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REv. 1055, 

1072-74 (1998) (using time series analysis to consider effects of Miranda); Raymond A. 

Atkins & Paul H. Rubin, Effects of Criminal Procedure on Crime Rates: Mapping of the 

Consequences of the Exclusionary Rule passim (1998) (unpublished manuscript, on file with 

author) (utilizing time series analysis to chart exclusionary rule's hannful effect on crime rates). 

305See Donald T. Campbell, Reforms as Experiments, 24 AM. PSYCHOLOGIST 409,417 

(1969) (concluding that time series analysis is common method of investigating reform 

measures); D.J. Pyle & D.F. Deadman, Assessing the Impact of Legal Reform by Intervention 

Analysis, 13 INT'L REv. L. & ECON. 193, 194-96 (1993) (concluding that time series analysis 

is common method for analyzing economic and social data). 

3°6-[he data is taken from BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, 

CAPITAL PUNISHMENT 1997, at 13 (1998) [hereinafter CAPITAL PUNISHMENT (year)]. 

Heil10nline .. ]999lJtah L. Rev. 54] ]999 
123 

542 UTAH LAW REVIEW [1999:479 

As the chart reveals, after an initial shake-out period in the mid-I 970s,307 the 

number of death sentences imposed generally climbed through 1986. Then, 

in 1987, the Court held in Booth that victim impact statements could not be 

used in capital cases. Death sentences declined slightly. Finally, in 1991, the 

Court reversed itself in Payne, allowing such statements. Death sentences 

thereafter increased modestly before turning to a level only slightly above 

that before Payne. The raw data would therefore suggest the possibility of a 

short term, meager association between victim impact statements and death 

sentences. 

A small note on timing is in order. Both Booth and Payne were handed 

down by the Court in mid-year (on June 15 and June 27 respectively). Thus, 

the vertical lines in Figure I depicting the "last pre-Booth year" and the "last 

pre-Payne" year are drawn to show the last year in which death sentences 

were unaffected by the ensuing Supreme Court decision, assuming the 

Court's decision affected capital cases as soon as it was announced. These 

timing assumptions are open to question. It is possible that prosecutors 

"anticipated" Booth by restricting their use of victim impact statements to 

avoid the possibility of reversal. The Court agreed to review the case on 

October IS, 1986/°8 so perhaps the last year entirely unaffected by Booth was 

1985, not 1986. Also, Payne may not have resulted in the immediate use of 

victim impact statements. Defendants might have continued to have been 

tried under the old law for months afterwards because of the problem of 

giving notice to them that such evidence would be introduceci'°9 and of 

adding authorizations for the use of impact statements.3IO 

Before a causal inference could be drawn that the fluctuations shown in 

Figure I are attributable to the Court's decision on victim impact statements, 

lO7ln Furman v. Georgia, 408 U.S. 238, 256-57 (1972), the Court concluded that the 

death penalty as then administered was arbitrary and capricious. States responded with new 

statutes more carefully defining death penalty offenses, reflected in an increasing number of 

capital sentences from 1973 through 1975. In 1976, the Court upheld some of these statutes 

but struck down those with mandatory features. Compare Gregg v. Georgia, 428 U.S. 153, 

206-08 (1976) (upholding Georgia's death penalty statute), with Woodson v. North Carolina, 

428 U.S. 280. 304-{)5 (1976) (invalidating North Carolina's mandatory death penalty statute). 

The invalidation of those statutes likely accounts for the drop in death penalties in 1976 and 

1977. 

30'479 U.S. 882, 882 (1986) (granting writ of certiorari). 

""'But cf Free v. Peters, 12 F.3d 700, 703 (7th Cir. 1993) (holding that defendant could 

not argue against application of Payne on ground that it was new rule); State v. Card, 825 P.2d 

1081. 1088-90 (Idaho 1991)(applying Payne retroactively). 

3lUSee, e.g.. UTAH CODE ANN. § 76-3-207(2)(a)(iii) (Supp. 1998) (allowing use of impact 

statements); Crime Victim Rights Amendments, ch. 352, § 5, 1995 Utah Laws 1361 (amending 

this provision). 

Heill0nline .. 19991Jtali L. Rev. 542 1999 
124 

No.2] BARBARIANS AT THE GATES? 543 

alternate causes would need to be carefully' and fully considered.3Il I leave 

this task to others. One issue that should be examined is whether the number 

of homicides changed during the period, particular homicides for which the 

death penalty was a serious prospect.312 Another possibility is that internal 

changes in sentencing procedures within large states returning the most 

capital sentences caused the fluctuations.313 Still another obvious alternate 

causality is other Supreme Court decisions around the time of Booth and 

Payne that might have made it easier or harder for prosecutors to obtain 

capital sentences. The Supreme Court death penalty jurisprudence has not 

been, shall we say, a model of perfect consistency over time. At almost the 

same time that the Court blocked the use of victim statements in Booth, it also 

increased the ability of defendants to introduce mitigating evidence. In 1985, 

the Court held that defendants must be given access to a competent psychiatrist at trial and sentencing if mental state is an issue?14 In 1986, the Court 

significantly expanded the types of mitigating evidence that defendants could 

introduce by invalidating contral)' state evidential)' rules.31S And in 1989, the 

Court expanded the circumstances in which juries should be instructed about 

the effect of mitigating evidence?16 It is possible that these decisions, and not 

Booth, explain the 1987-1990 dip in death penalties. The Court also handed 

down other decisions favorable to death penalty prosecutions at about the 

time of Payne that might explain the rise in death penalties in recent years.317 

311For an introduction to some of these issues, see Cassell & Fowles, supra note 304, at 

1 \07-19; John J. Donohue 1lI, Did Miranda Diminish Police Effectiveness?, 50 STAN. 1. REv. 

1147, 1149-51 (1998); Paul G. Cassell & Richard Fowles, Falling Clearance Rates After 

Miranda: Coincidence or Consequence?, 50 STAN. 1. REv. 1181, 1181 (1998). 

312Murderrates went up modestly from 1984 to 1991. See FED. BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME REpORTS: CRIME IN THE UNITED STATES 1993, 

at 284. 

mFor example, much of the 1986--87 drop in death penalties is apparently explained by 

changes in lllinois. Compare CAPITAL PUNISHMENT 1986, supra note 306, at 5 tbl.4 (25 death 

sentences in Illinois in 1986). with CAPITAL PUNISHMENT 1987, supra note 306, at 6 tb1.4 (II 

death sentences in lllinois in 1987). Much of the 1990-91 rise in death penalties is apparently 

explained by changes in Florida. Compare CAPITAL PUNISHMENT 1990, supra note 306, at 6 

tbL4 (31 death sentences in Florida in 1990), with CAPITALPUN!SHMENT 1991, supra note 306, 

at 8 tbl.4 (45 death sentences in Florida in 1991). 

31·See Ake v. Oklahoma. 470 U.S. 68, 84-87 (1985) (holding that denial of access to 

psychiatrist was violation of due process). 

315See Skipper v. South Carolina, 476 U.S. 1,4-8 (1986) (excluding mitigating evidence 

violated Eighth Amendment). 

316See Penry v. Lynaugh, 492 U.S. 302, 337-40 (1989) (holding that sentencing body 

must be allowed to consider mental retardation as mitigating factor). 

317See, e.g., Graham v. Collins, 506 U.S. 461, 475-78 (1993) (restricting Penry); Johnson 

v. Texas, 509 U.S. 350. 369-73 (1993) (distinguishing Pemy); Schad v. Arizona, 501 U.S. 

624,646-48 (1991) (holding that defendant was not necessarily entitled to instructions on 

every lesser included offense). 

Heil10nline -- 1999 Utah L. Rev. 541 1999 
125 

544 UTAH LAW REVIEW [1999: 479 

These and other potentially complicating factors would have to be 

assessed before any firm conclusions could be reached about the aggregate 

death penalty data plotted in Figure I. Nevertheless, even assuming that all 

other factors but the Court's victim impact decisions could be ruled out as 

causes of the changes, the relative magnitude of the changes appear to be, at 

most, modest.3J8 

Until we have further analysis of the data, lack of firm proof that Payne 

increased the number of death penalty convictions should count heavily 

against Professor Bandes and others who argue against admitting victim 

impact statements because of their effects on juries:J9 Allowing surviving 

family members to make impact statements clearly improves the perceived 

fairness of the process320 and we have no proof that juries have been 

influenced, let alone unfairly influenced.321 

3iOThe 1986 data divided by the 1988 data (the first full year under Booth), suggests that 

death penalties fell by 4% when victim impact evidence was banned in Booth. The 1992 data 

divided by the 1990 data (the first full year under Payne}, suggests that death penalties rose by 

15% when victim impact evidence was allowed in Payne. Using a longer time horizon, the 

1997 data divided by the 1990 data suggests only a 2% rise in death penalty convictions after 

Payne. These calculations assume, in addition to the many other caveats noted in text, no 

confounding trends. 

319See Susan Bandes, Reply to Paul Cassell: What We Know About Victim Impact 

Statements 1999 UTAH L. REv. 545 passim. 

320See supra notes 81-90 and accompanying text. 

mCI supra notes 27-99 and accompanying text (arguing that, even if Payne increased 

death sentences, this was a just result). 

Heill0nline -- 1999 Utah L. Rev. 544 1999 
126 

STATEMENT 

OF 

PAUL G. CASSELL 

RONALD N. BOYCE PRESIDENTIAL PROFESSOR OF CRIMINAL LAW 

SJ. QUINNEY COLLEGE OF LAW AT THE UNIVERSITY OF UTAH 

BEFORE 

THE HOUSE JUDICIARY COMMITTEE 

SUBCOMMITTEE ON THE CONSTITUTION 

ON 

THE VICTIM'S RIGHTS AMENDMENT 

ON 

APRlL25,2013 

WASHINGTON, D.C 
127 

I. INlRODUCTlON 

Mr. Chairman and Distinguished Members of the Subcommittee: 

1 am pleased to submit testimony in support of House Joint Resolution 40. 1 am the 

Ronald N. Boyce Presidential Professor of Criminal Law from the SJ. Quinney College of Law 

at the University of Utah and a former U.S. District Court Judge from the District of Utah (2002 

to 2007) 

Introduced by Representatives Trent Franks (R-AZ) and Jim Costa (D-CA), House Joint 

Resolution 40 is a proposed amendment to the United States Constitution that would protect 

crime victims' rights throughout the criminal justice process. The Victims' Rights Amendment 

("VRA") would extend to crime victims a series of rights, including the right to be notified of 

court hearings, the right to attend those hearings, and the right to speak at particular court 

hearings (such as hearings regarding bail, plea bargains, and sentencing). Similar proposed 

amendments have been introduced in Congress since 1996. 

The normative issues regarding the justification for such a constitutional amendment 

have been discussed at length elsewhere. l For example, in 1999 I helped organize a Utah Law 

Review symposium regarding the VRA2 There, 1 argued that the Constitution should be 

1 Compare, e.g., Steven J. T,,,ist & Daniel SeidelL The Proposed Victims' Rights Amendment: A Bric:! 

Pohlf'C01fnterpoint, 5 PHOEKL'\: L. REv. 341 (Apr. 2012), alld Steven 1. T"'ist The Crime Tfctims'Rights Amendmellt 

and Two Good and Perjt!Ct Things, 1999 UTAII L. RLV. 369, 1-nth Robelt P. Mosteller, The L'nnecessary Tlctims' 

Rights Amendment, 1999 UTAII L. Rr:v. HJ. See generallv DOCGLAS E. Bnoor, PAUL G. CASSLLL & STLVEJ\ J. 

T"lST. VICTI~lS IN CRI~lI'lAL PROCLDCRE 7lJ-28 (Jd cd. 2010); Sue AlIna Moss Cellini, The Proposed l'ictims' 

Rights //mendment to the Constitution afthe l/nited 5,'tates: Opening the /)001' afthe Crimina/Justice S:vstem to the 

Hctim, 14 ARU. J. 11\'["'[, & Cor...w. L. 8.39, 856-58 (1997): Vlctoria Sch\"art/., Recent Developmen~ jlze hctims· 

Right;s /lmendment, 42 H-\R\,. J. ON LbH[S. 525 (2005); Rache11e K. Hong, iVothing to real'· ",:r;;fahlishing an 

Eq1fali~v of Rights for Crime nctims Through the r fcthns' Rights Amendmellt, 16 NOTRE DA.\,fE lL. ETIllCS & Pl·B. 

~OL'Y 207,219-20 (2002) 

See Symposium, ('rime Victims' Rights in the nj/en~v-First Centur.v, 1999 UTAH L. REV. 285. This testimony, too. 

is drmvl1 for a symposium - recently organized by the capable editors of the Phoellix Lmt' RevieH' My testimony 

tracks my article published there. 
128 

amended to enshrine crime victims' rights. 3 I reviewed the various objections leveled against the 

VRA, tlnding them all wanting4 T concluded that a fair-minded look at the Amendment 

confinned that the VRA would build upon and improve our nation's criminal justice system -

retaining protection for the legitimate interests of prosecutors and defendants, while adding 

recognition of equally powerful interests of crime victims. 

The objections to the Victims' Rights Amendment conveniently fell into three categories, 

which my 1999 Article analyzed in turn. The first part reviewed normative objections to the 

Amendment-that is, objections to the desirability of the rights. The part began by reviewing the 

defendant-oriented objections leveled against a few of the rights, specitlcally the victim's right to 

be heard at sentencing, the victim's right to be present at trial, and the victim's right to a trial free 

from unreasonable delay. These obj ections all lack merit. 1 concluded by refuting the 

prosecution-oriented objections to victims' rights, which revolve primarily around alleged 

excessive consumption of scarce criminal justice resources. These claims, however, are 

inconsistent with the available empirical evidence on the limited cost of victims' rights regimes 

in the states. 

The next part considered what might be styled as justification challenges-challenges 

that a victims' amendment is unjustified because victims already receive rights under the existing 

amalgam of state constitutional and statutory provisions. This claim of an "unnecessary" 

amendment misconceives the undeniable practical problems that victims face in attempting to 

secure their rights without federal constitutional protection. 

The tlnal part then turned to structural objections to the Amendment-claims that 

victims' rights are not properly constitutionalized Contrary to this view, protection of the rights 

~ Paul G. Cassell, Barbarialls at the Gates? A Rt::pZv to the ('ritics afthe T fcthns' Rights Amendment, 1999 UTil.H L 

REv. 479. 

']d. at 533. 

2 
129 

of citizens to participate in governmental processes is a subject long recognized as an appropriate 

one for a constitutional amendment. Moreover, constitutional protection for victims also can be 

crafted in ways that are sufficiently flexible to accommodate varying circumstances and varying 

criminal justice systems from state to state. 

For the convenience of the Subcommittee, a copy of my law review article is attached to 

this testimony as Exhibit "A" - and I will be happy to expand on any of the issues discussed 

there. My goal in this written testimony is to move beyond the policy debates surrounding the 

VRA. In the remainder of my written testimony I provide a c1ause-by-c1ause analysis of the 

current version of the Victims' Rights Amendment, explaining how it would operate in practice. 

Tn doing so, it is possible to draw upon an ever-expanding body of case law from the federal and 

state courts interpreting state victims' enactments. The fact that these enactments have been put 

in place without significant interpretational issues in the criminal justice systems to which they 

apply suggests that a federal amendment could likewise be smoothly implemented. 

Part II of this testimony briefly reviews the path leading up to the current version of the 

Victims' Rights Amendment. Part III then reviews the version clause-by-clause, explaining how 

the provisions would operate in light of interpretations of similar language in the federal and 

state provisions. Part IV gives an illustration of a recent case in which the Amendment would 

have made a difference for crime victims. Part V draws some brief conclusions about the proj ect 

of enacting a federal constitutional amendment protecting crime victims' rights 

II. ABRIUII HISTORY Oil lllU EH'OIUS TO PASS A VICliMS' RIGllTS AMuNDMl!N [5 

5 Thls section draws LLpOll the ronowing articles: PaLLl G. Cassell, the Hetims' Rights //mendment: // ,~:vmpathetic, 

Clause-hy-Clause /Inalysis, 5 PHOENI.'\ L. REV. 301 (2012); Palll G. Cassell, Protecting Crime Hetims in Federal 

Appellate Courts: The -,-Veed to Broad~v Construe the O";me Victims' Rights Act:s' Alandamus ProV;'S'iOfl, 87 DEKV. 

V.L REV. 599 (2010): Paul G. Cassell & Ste'ven Joffee, The Crime Victim :5' Expallding Role in a ')J'stem (~tPublic 

Prosecutioll: A Re.sponse to the Critics a/the Cr;rne Victims 'Rights Act, 105 Nw. U. L. REv. COLLOQl"Y 164 (2010): 

Paul G. Cassell, Treating Crime T"ictims Fairly: Illtegrating Victims into the Federal Rules ofCrimillal Procedure, 

2007 UTAHL. REv. 861 
130 

A. The Crime Victims 'Rights Movement 

The Crime Victims' Rights Movement developed in the 1970s because of a perceived 

imbalance in the criminal justice system. The victims' absence from criminal processes 

conflicted with "a public sense of justice keen enough that it has found voice in a nationwide 

'victims' rights' movement.,,6 Victims' advocates argued that the criminal justice system had 

become preoccupied with defendants' rights to the exclusion of considering the legitimate 

interests of crime victims 7 These advocates urged reforms to give more attention to victims' 

concerns, including protecting victims' rights to be notified of court hearings, to attend those 

hearings, and to be heard at appropriate points in the process. 8 

The victims' movement received considerable impetus in 1982 with the publication of the 

Report of the President's Task Force on Victims of Crime ("Task Force")." The Task Force 

concluded that the criminal justice system "has lost an essential balance. [T]he system has 

deprived the innocent, the honest, and the helpless of its protection. . The victims of crime 

have been transformed into a group oppressively burdened by a system designed to protect them 

This oppression must be redressed."lo The Task Force advocated multiple refonns, such as 

prosecutors assuming the responsibility for keeping victims notified of all court proceedings and 

'Poyne Y. Tennessee. 501 U.S. 808. 834 (1991) (Scolio, 1. concurring) (interml quotations omitted). See generally 

BELOOF, C'\SSELL & 1\\'1ST, supra note L at 3-35: Shirley S. AbrahamsolL Redefining Roles: The r7ctims' Rights 

Aiovement, 1985 U'L\'H L. REV. 517: Douglas £\-<111 Beloof, 11le 1hird Alodel of Criminal Process: The ~,ct;m 

Participation Model. 1999 UTAH L. REv 289 [hereimfter Beloof. Third Model]: Poul G. Cossell, Balancing the 

,')'cales (~lJl1stice: The Case for and E:tfixts of Utah:s' r7cthns' Rights Amendment, 1994 UTAH L. REv. 1373 

[hereinafter Cassell, Balancing fhe Scales]; Abraham S. Goldstein, Dejining the Role 0/ fhe Vic:Jim in Criminal 

Proseculion, 52 MISS. L.J. 514 (1982); William T. Pizzi & Waltcr PClTOIl, Crime Viclims in German Courlrooms: A 

Comparative Per~pective on American Problems, 32 STAK. J. IKT·L L. 37 (1996); COllCIlC Campbcll ct aI., Appendix: 

'I/ze t~ictims' t~oice, 5 PHOENIX L. REV. (forthcoming Apr. 2(12). 

- See generally BEI,(X)F, CASSEI,[, & TWls·l~ supra nole 1. at 29-3X; Douglas E. Beloor, nle third Wave of Hctims' 

Right;s: S'tanding, Remet(v, and ReView, 2005 BYU L. Rrx 255 lhereinafter Beloor, Standing, Remedy, and 

Rev;':"H'l; Cassell, Balallcing the ,Scales, supra note G, at 1380-82. 

R ,')'ee sources cited supra note 7. 

9 LOIS HAIGHT HEIlRlNGTO'l ET AL. PIlESIDE'IT'S TASK FORCE 0'1 VICTIMS OF ClUlvlE FIKAL REpORT (1982). 

avai lable at http"//www.ojp.usdoj. gov /oYc/publicolions/presdntstskforcrprt/8 7299 .pdf. 

10 ld. 01114. 

4 
131 

bringing to the court's attention the victim's view on such subjects as bail, plea bargains, 

sentences, and restitution. 11 The Task Force also urged that courts should receive victim impact 

evidence at sentencing, order restitution in most cases, and allow victims and their families to 

attend trials even if they would be called as witnesses. 12 In its most sweeping recommendation, 

the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to 

be present and to be heard at all critical stages of judicial proceedings." 13 

In the wake of the recommendation for a constitutional amendment, crime victims' 

advocates considered how best to pursue that goal. Realizing the difficulty of achieving the 

consensus required to amend the United States Constitution, advocates decided to try and first 

enact state victims' amendments. They have had considerable success with this "states-first" 

strategy 14 To date, more than thirty states have adopted victims' rights amendments to their own 

state constitutions, 15 which protect a wide range of victims' rights. 

The victims' rights movement was also able to prod the federal system to recognize 

victims'rights. In 1982, Congress passed the first specific federal victims' rights legislation, the 

Victim and Witness Protection Act, which gave victims the right to make an impact statement at 

sentencing and expanded restitution. 16 Since then, Congress has passed several acts which gave 

further protection to victims' rights, including the Victims of Crime Act of 1984,17 the Victims' 

at 63 

at72-73. 

at 114 (emphasis omitted). 

S. REp. No. 108-191 (2003) 

AL~. CONST. of 1901. amend. 557: ALASKA CO'lST. mt. I. § 24: ARIz. CO'lST. mt. II, § 2.1; CAL. CO'lST. mt. I, 

§ 28; COLO. COl'ST. mt. II, § 16a; CONN. CONST. art. XXIX, § b; FLA. CO'lST. mt. I, § 16(b); IDAIIO CONST. mt. I, § 

22: 11.1 .. CO~ST. art. I, § 8.1: INIl. CO"ST. art. I, § 13(b); KA~. CO~ST. art. IS, § 15: LA. CO"ST. art. I, § 25: Mil. 

DI-L'I.AR.'-\TIOI\ OF RICrHTS, art. 47; MICH. CO"JST of 1963, art. i, § 24; MISS. CONST. art. 3, § loA; Mo. CO"JST art. I, 

§ 32: MONT. CO"ST. art. 2, § 28; NEH. CO~ST. art. I, § CI-28: NEV. CONST. art. I, § 8(2): N.J. CO~ST. art. I, para. 22: 

N.M. COKST. art. II. ~ 24: N.C. COKST. art. I. ~ 37: OHIO C.oNST. art. I, § lOa; OKLA. CONST. art. II, ~ 34; OR.. 

C.oKST. art. I, ~~ 42-43: R.I. CONST. art. I. § 23; S.C. CO'lST. art. I. ~ 24: TENN. CO'lST. art. I. § 35; Tsx. COKST. art. 

I, § 30; UTAH CO'lST. art. I, § 28; VA. C.oKST. art. I, § 8-A; WASH. CO'lST. art. I, § 35; WIS. CO'lST. art. I, § 9m. 

16 Pub. L. No. 97-291, 9G Stat 1248 (1982) 

"Pub. L. No. 98-473, 98 Stat. 1837 (1984) 
132 

Rights and Restitution Act of 1990,18 the Violent Crime Control and Law Enforcement Act of 

1994,19 the Antiterrorism and Effective Death Penalty Act of 1996,20 the Victim Rights 

Clarification Act of 1997,21 and, most recently, the Crime Victims' Rights Act ("CVRA,,)22 

Other federal statutes have been passed to deal with specialized victim situations, such as child 

victims and witnesses23 

Among these statutes, the Victims' Rights and Restitution Act of 1990 ("Victims' Rights 

Act") is worth discussing. This Act purported to create a comprehensive set of victims' rights in 

the federal criminal justice process. 24 The Act commanded that "a crime victim has the 

following rights.,,25 Among the listed rights were the right to "be treated with fairness and with 

respect for the victim's dignity and privacy,,,26 to "be notitled of court proceedings,,,27 to "confer 

with [the] attorney for the Government in the case,,,28 and to attend court proceedings even if 

called as a witness unless the victim's testimony "would be materially affected" by hearing other 

testimony at tria1 29 The Victims' Rights Act also directed the Justice Department to make "its 

best efforts" to ensure that victims received their rights. '° Yet this Act never successfully 

integrated victims into the federal criminal justice process and was generally regarded as 

something of a dead letter. Because Congress passed the CVRA in 2004 to remedy the problems 

with this law, it is worth briefly reviewing why it was largely unsuccessful. 

IS Pub. L. No 101-647, 104 Stat 4789 (1990) 

19 Pub. L. No 103-322, 108 Stat 1796 (1994) 

co Pub. L. No 104-132, 110 Stat 1214 (1996). 

'I Pub. L. No 105-6, 111 Stat 12 (1997) 

"Pub. L. No 108-405, 118 Stat 2260 (2004). 

23 -"'ee. c.g, 18 U.S.c. § 3509 (20()9) (protecting rights of child vlctim-v"itnesses). 

21 Pub. L. No. 101-647. ~ 502, 104 Stat. 4789 (1990). 

2S !d. ~ 502(b) 

'6 !d. § 502(b)(1). 

" !d. § 502(b)(3). 

cs !d. § 502(b)(5). 

C9 !d. § 502(b)( 4). 

10 !d. § 502(0). 

6 
133 

Curiously, the Victims' Rights Act was codified in Title 42 of the United States Codethe title dealing with "Public Health and Welfare.,,31 As a result, the statute was generally 

unknown to federal judges and criminal law practitioners. Federal practitioners reflexively 

consult Title 18 for guidance on criminal law issuesJ2 More prosaically, federal criminal 

enactments are bound together in a single publication-the Federal Criminal Code and Rules33 

This book is carried to court by prosecutors and defense attorneys and is on the desk of most 

federal judges. Because the Victims' Rights Act was not included in this book, the statute was 

essentially unknown even to many experienced judges and attorneys. The prime illustration of 

the ineffectiveness of the Victims' Rights Act comes from no less than the Oklahoma City 

bombing case, where victims were denied rights protected by statute in large part because the 

rights were not listed in the criminal rules. 34 

Because of problems like these with statutory protection of victims' rights, in 1995 crime 

victims' advocates decided the time was right to press for a federal constitutional amendment. 

They argued that statutory protections could not sufficiently guarantee victims' rights. In their 

view, such statutes "frequently fail to provide meaningful protection whenever they come into 

conflict with bureaucratic habit, traditional indifference, [or] sheer inertia."" As the Justice 

Department reported: 

[E]tforts to secure victims' rights through means other than a constitutional 

amendment have proved less than fully adequate. Victims [sic] rights advocates 

have sought reforms at the State level for the past 20 years and many States have 

responded with State statutes and constitutional provisions that seek to guarantee 

victims' rights. However, these efforts have failed to fully safeguard victims' 

rights. 

31 Pub. L. No. 101-647, 104 Slal. 4820 (1990); ,ee 42 U.S.c. § 10606 (repealed by PLLb. L. No. 108-405,lil. I, § 

102(c), 118 Slal. 2260 (2004». 

12 See generaliv U.S.c. tit. 18 

11 THOMSO'lWEST, FEDERALCRIMlNAL CODE,\''1DRl'LES (2012 ed. 2012) 

l-1 ,See general~v Cassell, slfpra note 3, at 515-22 (discussing tlus case in greater detail). 

~~ Laurence H. Tribe & Paul G. Cassell, Embed the Rights (~tT7ctims in the Constitution. L.A. TTh..'lES, July 6. 1998, at 

B5. 

7 
134 

These significant State efforts simply are not sufficiently consistent, 

comprehensive, or authoritative to safeguard victims' rights.'" 

To place victims' rights in the Constitution, victims advocates (led most prominently by the 

National Victims Constitutional Amendment Network 37) approached the President and Congress 

about a federal amendment. 38 In April 22, 1996, Senators Kyl and Feinstein introduced a federal 

victims' rights amendment with the backing of President Clinton39 The intent of the amendment 

was "to restore, preserve, and protect, as a matter of right for the victims of violent crimes, the 

practice of victim participation in the administration of criminal justice that was the birthright of 

every American at the founding of our Nation.,,40 A companion resolution was introduced in the 

House of Representatives."1 The proposed amendment embodied seven core principles: (1) the 

right to notice of proceedings; (2) the right to be present; (3) the right to be heard; (4) the right to 

notice of the defendant's release or escape; (5) the right to restitution; (6) the right to a speedy 

trial; and (7) the right to reasonable protection. In a later resolution, an eighth principle was 

added: standing42 

The amendment was not passed in the 104th Congress On the opening day of the first 

session of the 105th Congress on January 21, 1997, Senators Kyl and Feinstein reintroduced the 

amendment43 A series of hearings were held that year in both the House and the Senate44 

Responding to some of the concerns raised in these hearings, the amendment was reintroduced 

~6.-1 Proposed Constitutiollal Amendment to Protect Tfctims (~lCrime: Hearing on /)',J Res. 6 Bf:/ore the /)', Cornm. 

on the Judiciarv. 105th Congo G4 (1997) (statement of Janet Reno. U.S. Atfy Gea) 

17 See NAT'L VICTI~IS' CO'lST. AYIENDME'lTPASSAGJ:, http://www.llvcap.org/ (last visited Mar. 22, 2012) 

38 See Jon Kyl ct aI., On fhe Wings u/Their Angels: The Scot! Campbell, SJephanie Ropel; ffem(v Presion, Louarna 

Gillis. and Nila L.wm Crime Vic:Jims 'Rights Act, 9 LEV/IS & CLARE~_L. RLv. 581 (2005) (providing a comprehensive 

histoT}' of\'ictims' eITorts to pass a constitutional amendment). 

39 S.J. Res. 52, 104th Congo (1996). 

'10 S. REP. No. 108-191, at 1-2 (2003); see also S. REP. No. 106-254, at 1-2 (2000). 

" H.R.1. Res. 174, 104th Congo (1996). 

"S.1. Res. G5. 104th Congo (1996). 

" S.1. Res. G, 105th Congo (1997). 

-'1-1 j)'ee, e.g., A Proposed Constitutional Amendmellt to Protect r7ctims afCrime: Hearing on /)'] Res. 6 Be.fi.we the /)', 

('0111111.011 the Judiciar.v, 105t11 C-Ong. (1997) 

8 
135 

the following year45 The Senate Judiciary Committee held hearings46 and passed the proposed 

amendment out of committee47 The full Senate did not consider the amendment. Tn 1999, 

Senators Kyl and Feinstein again proposed the amendment. 4x On September 30, 1999, the 

Judiciary Committee again voted to send the amendment to the full Senate49 But on April 27, 

2000, after three days of floor debate, the amendment was shelved when it became clear that its 

opponents had the votes to sustain a filibuster 50 At the same time, hearings were held in the 

House on the companion measure there. 51 

Discussions about the amendment began again after the 2000 presidential elections. On 

April 15, 2002, Senators Kyl and Feinstein again introduced the amendment52 The following 

day, President Bush announced his support. 53 On May 2, 2002, a companion measure was 

proposed in the House.54 On January 7, 2003, Senators Kyl and Feinstein proposed the 

amendment as SJ. Res. 1. 55 The Senate Judiciary Committee held hearings in April of that 

year,56 followed by a written report supporting the proposed amendment. 57 On April 20, 2004, a 

motion to proceed to consideration of the amendment was filed in the Senate" Shortly 

thereafter, the motion to proceed was withdrawn when proponents determined they did not have 

'15 S.J. Res. 44. I05th Congo (1998). 

-'16 A Proposed Constitutional Amendment to Protect Crime Tfctims: Hearing on ,)'] Res. 44 Before the ,')'. Comm. 011 

the Judicial' v, 105th Congo (1998) 

r 144 CO"". REc. 22496 (1998). 

S.1. Res. 3. 106th Congo (1999). 

146 COKG. REc. 6020 (2000). 

5] H.R.1. Res. M, 106th Congo (1999). 

52 S.1. Res. 35, 107th Congo (2002). 

53 Press Release, Office orthe Press Sec'y. President Calls rOT Crime Victims' Rights Amendment (Apr. 16,2002) 

(011 file \vith author) 

51 H.R.J. Res. 91, 1071h Congo (2002). 

"S. REP. No. 108-191. at 6 (2003) 

-';6 Proposed Constil1ftiollal Amelldment to Protect O-ime Tlctims: Hear;'lg on ,)'J Res. 1 Beji.we the /)', ('0111111. 011 the 

Judiciary, 108th Congo (2003) 

"S. REP. No. 108-191. 

-';1; Kyl et aI., supra note 38, at 591 

9 
136 

the sixty-seven votes necessary to pass the measure. 59 After it became clear that the necessary 

super-majority was not available to amend the Constitution, victims' advocates turned their 

attention to enactment of a comprehensive victims' rights statute. 

B. The Crime Victims 'Rights Act 

The CVRA ultimately resulted from a decision by the victims' movement to seek a more 

comprehensive and enforceable federal statute rather than pursuing the dream of a federal 

constitutional amendment. In April of 2004, victims' advocates met with Senators Kyl and 

Feinstein to decide whether to again push for a federal constitutional amendment. Concluding 

that the amendment lacked the required super-majority, the advocates decided to press for a farreaching federal statute protecting victims' rights in the federal criminal justice system60 Tn 

exchange for backing off from the constitutional amendment in the short term, victims' 

advocates received near universal congressional support for a "broad and encompassing" 

statutory victims' bill of rights 61 This "new and bolder" approach not only created a bill of 

rights for victims, but also provided funding for victims' legal services and created remedies 

when victims' rights were violated62 The victims' movement would then see how this statute 

worked in future years before deciding whether to continue to push for a federal amendment. (,J 

The legislation that ultimately passed-the Crime Victims' Rights Act-gives victims 

"the right to participate in the system.,,64 It lists various rights for crime victims in the process, 

including the right to be notified of court hearings, the right to attend those hearings, the right to 

59 lei. 

GO !d. at 591-92. 

61 150 CONCl. Rb:c 7295 (2004) (statement or Sen. Feinstein). 

6: Id. at 7296 (statement or Sen. Felnstein). 

fi1 ld. at 7300 (statement of Sen. Kyl): see also Prepared Rem.arks of Attorney Gell. Alberto R Gonzales, Hoover 

Inst. Bd. of Overseers Conference (Feb. 28. 2005) (indicating a federal victim's rights amendment reln.:1ins a priority 

for President Bush). 

" 18 USc. ~ 3771 (2006); 150 CO'lG. REC. 7297 (2004) (statement of Sen. Feinstein); see Beloof, Third Model, 

supra note 7 (providing a description of victim participation). 

10 
137 

be heard at appropriate points in the process, and the right to be treated with fairness. 65 Rather 

than relying merely on best etforts of prosecutors to vindicate the rights, the CVRA also contains 

specific enforcement mechanisms!'(' Most important, the CYRA directly confers standing on 

victims to assert their rights, a flaw in the earlier enactment. 67 The Act provides that rights can 

be "assert[ed]" by "[t]he crime victim or the crime victim's lawful representative, and the 

attorney for the Government.,,(,g The victim (or the government) may appeal any denial of a 

victim's right through a writ of mandamus on an expedited basis 69 The courts are also required 

to "ensure that the crime victim is afforded" the rights in the new law70 These changes were 

intended to make victims "an independent participant in the proceedings.,,71 

C. 'file I,ess-than-Pel!ecllmplemenlalion of the CVRA 

Since the CYRA's enactment, its effectiveness in protecting crime victims has left much 

to be desired. The General Accountability Office ("GAO") reviewed the CYRAfour years after 

its enactment in 2008, and concluded that "[p]erceptions are mixed regarding the effect and 

efficacy of the implementation of the CVRA, based on factors such as awareness of CYRA 

rights, victim satisfaction, participation, and treatment."n 

Crime victims' advocates have tested some of the CYRA's provisions in federal court 

cases. The cases have produced uneven results for crime victims, with some of them producing 

crushing defeats for seemingly valid claims. 

"§ 3771 

,,' Id. § 3771(c). 

(J; Cj Bcloof, Sianding. Remed!>", and Review. supra note 8, at 283 (identifying this as a pClvasivc flu,,, in victims' 

rights enactments) 

"~ 3771(d). 

69!d. ~ 3771(d)(3). 

'0 Id. § 3771(b)(l). 

'1 150 CONGo REc. 7302 (2004) (st"tement of Sen. Kyl). 

" U.S. GoV'T ACCOlNTABILITY OFFICE, CruME VICTIlvIS' RIGHTS ACT I'ICIlEASIKG A,nRENESS. MODIFYIKG THE 

C-OMPUIKT PROCESS, ,\I'D E'IHlINCING COMPLIA'ICE MOKITORNG WILL IMPROVE I~IPLnIEKTATIO'l OF THE ACT 12 

(Dec. 2008) 

11 
138 

Among the most disappointing losses for crime victims has to be litigation involving Ken 

and Sue Antrobus's efforts to deliver a victim impact statement at the sentencing of the defendant 

who had illegally sold the murder weapon used to kill their daughter. 71 After the district court 

denied their motion to have their daughter recognized as a crime victim under the CVRA, the 

Antrobuses made four separate trips to the Tenth Circuit in an etlort to have that ruling reviewed 

on its merits-all without success. In the first trip, the Tenth Circuit rejected the holdings of at 

least two other circuit courts to erect a demanding, clear, and indisputable error standard of 

review Having imposed that barrier, the court then stated that the case was a close one, but that 

relief would not be granted-with one concurring judge noting that sufficient proof of the 

Antrobuses' claim might rest in the Justice Department's tIIes 74 

The Antrobuses then returned to the district court, where the Justice Department refused 

to clarify the district court's claim regarding what infof111ation rested in its files 75 The 

Antrobuses sought mandamus review to clarify and discover whether this infornlation might 

prove their claim, which the Justice Department "mooted" by agreeing to tile that information 

with the district court and not oppose any release to the Antrobuses. 76 But the district court again 

stymied the Antrobuses' attempt by refusing to grant their unopposed motion for release of the 

documents. 77 

The Antrobuses then sought appellate review of the district court's initial "victim" ruling, 

only to have the Tenth Circuit conclude that they were barred from an appeaLn However, the 

Tenth Circuit said the Antrobuses "should" pursue the issue of release of the material in the 

~3 See genel'a/~v Paul G. Cassell, Protecting Crime lleNlns in redcl'al /lrrellate COllr!;"!: '/lIe Need to IJl'Oad~v 

Construe the Crime lktims' Right;s /Ict:", Alandamus Provision, 37 DEI\\'. U.L. REV. 599 (2010) In the Interest or ful1 disc1osme, I represented the Antrobuses' in some or the litigation 011 a pro bono basis. 

:; III re Antrobus. 519 F3d 1123. 1126-27 (10th Cir. 2008) (TymkoviclL J .. concurring). 

III re Antrobus. 563 F3d 1092 (lOth Clr. 2009). 

'6 Id. at 1095 

United States v Hunter. No. 2:07CR30IDAK. 2008 U.S. Dis!. LEXIS 108582. at *1-2 (D. Utah Mar. 17,2008). 

'S United States v. Hunter. 548 F3d 1308. 1317 (lOth CiT. 2008) 

12 
139 

Justice Department's files in the district court79 So they did-only to lose again in the district 

court. 80 On a tlnal mandamus petition to the Tenth Circuit, the court ruled-among other 

things-that the Antrobuses had not been diligent enough in seeking the release of the 

information81 With the Antrobuses' appeals at an end, the Justice Department chose to release 

di scovery infonnation about the case-not to the Antrobuses, but to the media. 82 

Another case in which victims' rights advocates were disappointed arose in the Fifth 

Circuit's decision in re Dean83 In Dean, the defendant-the American subsidiary of wellknown petroleum company BP-and the prosecution arranged a secret plea bargain to resolve 

the company's criminal liability for violations of environmental laws84 These violations 

resulted in the release of dangerous gas into the environment, leading to a catastrophic explosion 

in Texas City, Texas, which killed fifteen workers and injured scores more" Because the 

Government did not notify or confer with the victims before reaching a plea bargain with BP, the 

victims sued to secure protection of their guaranteed right under the CVRA "to confer with the 

attorney for the Government" '" 

Unfortunately, despite the strength of the victims' claim, the district court did not grant 

the victims of the explosion any relief, leading them to file a CVRA mandamus petition with the 

Fifth Circuit87 After reviewing the record, the Fifth Circuit agreed with the crime victims that 

the district court had "misapplied the law and failed to accord the victims the rights conferred by 

'9 !d. at 1316-17. 

RO United States v Hunter, 2009 U.S. Dis!. LEXIS 90822. at *2-4 (D. Utah Feb. 10,2009). 

re Antrobus. 563 FJd at 1099 

Nate Carlisle, NOleS Confirm Su~picions 0/ Trolley Square Vic:Jim~' Fami~v, SALT LAM, TRill .. JUlle 25, 2009. 

http://ww~.sltlib.colll/ncws/ci_12380112. 

83 In l'e Dean, 527 F.3d 391 (5th CiT. 200X). In the interest of ful1 disclosure, I sen.!ed as pro bOllO legal cOLLllsel for 

the victims in the j)ean criminal case. ~)'ee generally Paul G. Cassell & Ste\-ell JolTee, 'l71e Crime lktim:~ 

",xpanding Role in a System of Puhlic Prosecution: /j Response to the Critics of the Crime I Ie/ims' Rights /Ief. 105 

Nw. U. L. REv. COLLOQUY 164 (2010) 

"See United States v. BP Prods. N. Am. Inc, No. H-07-434. 2008 WL 501321 (S.D. Tex. Feb. 21, 2008) 

" See III re Dean 527 F.3d at 392. 

:":6 I d. at 394 

:":7 ,See id. at 392 

13 
140 

the CVRA,,88 Nonetheless, the court declined to award the victims any relief because it viewed 

the CVRA's mandamus petition as providing only discretionary relief89 Instead, the court of 

appeals remanded to the district court. The court of appeals noted that "[tJhe victims do have 

reason to believe that their impact on the eventual sentence is substantially less where, as here, 

their input is received after the parties have reached a tentative deal.,,90 Nonetheless, the court of 

appeals thought that all the victims were entitled to was another hearing in the district court."l 

After a hearing, the district court declined to grant the victims any further relief. 92 

One other disappointment of the victims' rights movement is worth mentioning. When 

the CVRA was enacted, part of the law included funding for legal representation of crime 

victims93 And immediately after the law was enacted, Congress provided funding for this 

purpose. The National Crime Victim Law Institute proceeded to help create a network of clinics 

around the country for the purpose of providing pro bono representation for crime victims' 

rights."4 

Sadly, in recent months, the congressional funding for the clinics has diminished. As a 

result, six clinics have had to stop providing rights enforcement legal representation. As of this 

writing, the only clinics that remain open for rights enforcement are in Colorado, Maryland, New 

Jersey, Arizona, Utah, and Oregon. The CVRA vision of an extensive network of clinics 

supporting crime victims' rights clearly has not been achieved. 

':ll Id. 

at 394 

at 396 

at 396 

92 United States v BPProds. N. Am. Inc., Gl0 F. Supp. 2d G55. 730 (S.D. Tex. 2009). 

91 ,See NatIOnal Clillic -,-Vet~t'ork, N,'\.T-L CRHvlE VICTI\,f L IKST., 

http://LTw.lcl1rk.edu/centers/n.ational_crime_ victim _la\Y_institute/projects/clillical_nehvorkl (last visited 11m. 23. 

2012). 

9-1 ,See id. 

14 
141 

III. THE PROVISIONS OF THE VICTIMS' RIGHTS AMENDMEN1 95 

Because of the problems with implementing the CVRA, in early 2012 the National 

Victim Constitutional Amendment Network ("NVCAN") decided it was time to re-approach 

Congress about the need for constitutional protection for crime victims' rights96 Citing the 

continuing problems with implementing other-than-federal constitutional protections for crime 

victims, NVCAN proposed to Congress a new version of the Victims' Rights Amendment In 

April 2013, Representatives Trent Franks (R-AZ) and Jim Costa (D-CA) introduced the VRA as 

H.RJ. Res. 4097 As introduced, the amendment would extend crime victims constitutional 

protections as follows: 

Section I. The rights of a crime victim to fairness, respect, and dignity, 

being capable of protection without denying the constitutional rights of the 

accused, shall not be denied or abridged by the United States or any State. The 

crime victim shall, moreover, have the rights to reasonable notice of, and shall not 

be excluded from, public proceedings relating to the offense, to be heard at any 

release, plea, sentencing, or other such proceeding involving any right established 

by this article, to proceedings free from unreasonable delay, to reasonable notice 

of the release or escape of the accused, to due consideration of the crime victim's 

safety and privacy, and to restitution. The crime victim or the crime victim's 

lawful representative has standing to fully assert and enforce these rights in any 

court. Nothing in this article provides grounds for a new trial or any claim for 

damages and no person accused of the conduct described in section 2 of this 

article may obtain any fonn of relief 

Section 2. For purposes of this article, a crime victim includes any person 

against whom the criminal offense is committed or who is directly and 

proximately harmed by the commission of an act, which, if committed by a 

competent adult, would constitute a crime. 

Section 3. This article shall be inoperative unless it has been ratified as an 

amendment to the Constitution by the legislatures of three-fourths of the several 

States within 14 years after the date of its submission to the States by the 

Congress. This article shall take effect on the 180th day after the date of its 

ratification. 98 

':lS This sectl0n dra\'\.'s heavl1y 011 Pau1 G. Cassell, jhe llctims' Rights //mendment: // ,~:vmpathetic. Clause-ny-Clause 

Allalvsis. 5 PHOE'lIX L. REv 30 I (2012) 

96 NAT'L VICTI~IS' CO'lST. A1vIEND~IENTPASSAGE. http'l/www.nvcap.org/ (11st visited Apr. 4. 2013). TIns 

organization is a sister organization to NVCAN and supports the passage of a Victims· Rights Amendment. ld. 

97 H.R.J. Res. 40, 113th Congo (2013). 

9il Id. 

15 
142 

This proposed amendment is a carefully crafted provision that provides vital rights to 

victims of crime while at the same time protecting all other legitimate interests. Because those 

who are unfamiliar with victims' rights provisions may have questions about the language, it is 

useful to analyze the amendment section-by-section. Language of the resolution is italicized and 

then discussed in light of generally applicable legal principles and existing victims' case law. 

What follows, then, is my understanding of what the amendment would mean for crime victims 

in courts around the country. 

A. Section I 

The rights of a crime victim . .. 

This clause extends rights to victims of both violent and property offenses. This is a 

significant improvement over the previous version of the VRA-SJ. Res. l-which only 

extended rights to "victims of violent crimes.,,99 While the Constitution does draw lines in some 

situations,lOo ideally crime victims' rights would extend to victims of both violent and property 

offenses. The previous limitation appeared to be a political compromise. 101 There appears to be 

no principled reason why victims of economic crimes should not have the same rights as victims 

of violent crimes. 102 

99 SJ. Res. 1, 108th Congo (2003). The previous version of the amendment likewise did not automatically extend 

rights to victims of non-'violent crimes, but did <111m\' exiension of rights to victims of "other crimes tl1:1t Congress 

may define by law." Compare id. wilh S.l. Res. 6, 105th Congo (1997). This language was deleted fwm S.l. Res.!. 

SJ. Res. 1, 108th Congo (2003). 

[III) Various constitutional prm.;isiollS dIm:" distinctions between individuals and bcnvccll crimes, often for no rcason 

other than administrative convenience. For instance, the right to a JUT}' trial e.\.tends only to cases ",,,,here the \'ahLe 

in contTO\·ersy shall e:\ceed (,venty dollars." U.S. CO"JST. amend. VII. E\'ell naTTOv"ing om \,ie\\' to criminal cases. 

rrequent line-drm'\.'ing exists. For inslance, the Firth Amendment e.\.tends to derendanls in rederal cases the right not 

to stand trial ··unless on a presentment or indictment of a Grand Jury": hmve,rer. this right is limited to a '·capital, or 

othenvise infamous crime" U.S. COI'ST. anlend. V Similarly, the right to a jury trial in crimil1:11 cases depends in 

Prart on the pel1:11ty a state legislature decides to set for any particulm crime. 

01 S. REp. No. 106-254, ot 45 (2000). 

lO~ S'ee Jayne W. Ban1:1Id. 411oc1ftionfor Victims (~fEconom;c O-imes, 77 NOTRE DAlvIE L. REV. 39 (2001). 

16 
143 

The VRA defines the crime victims who receive rights in Section 2 of the amendment 

This detlnition is discussed below. 103 

The VRA also extends rights to these crime victims. The enforceable nature of the rights 

is discussed below as well. 104 

... fo fairness, re,lpecf, alld dignify. 

The VRA extends victims' rights to fairness, respect, and dignity The Supreme Court 

has already made clear that crime victims' interests must be considered by courts, stating that "in 

the administration of criminal justice, courts may not ignore the concerns of victims" 105 and 

that "justice, though due to the accused, is due to the accuser also." 106 This provision would 

provide clear constitutional grounding for these widely-shared sentiments. 

The rights to fairness, respect, and dignity are not novel concepts Similar provisions 

have long been found in state constitutional amendments. 107 The Arizona Constitution, for 

instance, was amended in 1990 to extend to victims exactly the same rights: to be treated "with 

fairness, respect, and dignity." lOR Likewise, the CVRA specifically extends to crime victims the 

right "to be treated with fairness and with respect for the victim's dignity and privacy."I09 

The case1aw developing under the CVRA provides an understanding of the kinds of 

victims' interests these rights protect. Senator Kyl offered these examples of how these rights 

might apply under the CVRA: "For example, a victim should be allowed to oppose a defense 

discovery request for the reproduction of child pornography, the release of personal records of 

11)3 See infra Part lII.B. 

1()'1,r:,'ee i1~fi'a notes 212-16 and accompanYlng text. 

105 Morrisv. Slappy, 461 U.S. L 14(1983). 

106 Sllyderv. Massachusetts, 291 U.S. 97, 122 (1934). 

See, e.g., ARIZ. COKST. art. II, § 2.I(A)(1): IDAHO CO'lST art. L § 22(1): ILL CONST. art. I, § 8.I(a)(I): MD. 

DECLill.ATIOKOFRIGHTS, art. 47(a): N.l CONST. art. L para. 22: TE:\:. CO'lST. art. I, § 30(a)(1): WIS. CO'lST. art. L § 

9m; UTAH CO'lST., art. I, § 28(1)(a). 

lOR ARIZ. CONST. art. II, § 2. I (A)(1) 

109 18 u.se § 377I(a)(8) (2006) 

17 
144 

the victim, or the release of personal identifying or locating information about the victim."110 

Since the enactment of the CVRA, courts have applied the CVRA's rights to fair treatment in 

various contexts. For example, the Sixth Circuit concluded that unexplained delay in ruling on a 

crime victim's motion for three months raised fairness issues. 111 Other district courts have ruled 

that a victim's right to fairness (and to attend court proceedings) is implicated in any motion for a 

change of venue. 112 Another district court has ruled that the victim's right to fairness gives the 

court the right to hear from a victim during a competency hearing.113 And another district court 

has stated that the victim's right to be treated with fairness is implicated in a court's decision of 

whether to dismiss an indictment. 114 

The CVRA rights of victims to be treated with respect for their dignity and privacy have 

also been applied in various settings 115 Trial courts have used the rights to prevent disclosure of 

sensitive materials to defense counsel 116 and to the public,117 particularly in extortion cases 

where disclosure of the material would subject the victim to precisely the harm threatened by the 

defendant. 11R Another court has ruled that the right to be treated with dignity means that the 

prosecution could refer to the victim as a "victim" in a case. 1l9 Still another district court used 

llU Kyl et a1, supra note 39, at 614. 

111 In re Simons, 567 F3d 800,801 (6th Cir. 2009). 

," United St2tes v. Agriprocessors, Inc .. No. 08-CR-1324-LRR, 2009 WL 721715. at *2 n.2 (N.D. Iowa Mm. 18, 

2009); United States v. Kanncr, No. 07-CR-102J-LRR, 2008 WL 2663414, at *8 (N.D. Iowa June 27, 2008). 

113 Unitcd States v. Mitchell, No. 2:08CR125DAK, 2009 WL 3181938, at *8 n.3 (D. Utah Sept. 28, 2009). 

11' Unitcd States v. HcatOl~ 458 F. Supp. 2d 1271, 1272-73 (D. Utah 2006). 

lIS 5,'ee generall.v Fem L. Kletter, Annolation, Validity: Construction and //pplicatioll of Crime Hctim s Rights //ct 

(ClII/I). lIlIi.SC./1. § 3771,26 A.L.R. FEll. 21)451 (200S). 

ll6 United Slales v. Darcy, No. 1:09CRI2. 2009 WL 1470495, al'l (WD.N.C. May 26, 20(9) 

11' Gueits v. Kirkpatrick. 618 F Supp. 2d 193,198 n.l (ED.N.Y 2009) rev'd all other grol1!1iis. 612 F3d 118 (2d 

Cir. 2010): United St2tes v. Madoff, 626 F Supp. 2d 420,425-28 (SD.NY 2009): United States v. Patkar, No. 06-

00250 JMS, 2008 WL 233062, at *3-5 (D. Haw. Jan. 28, 2008). 

'" United States v Robinson, Cr. No. 08-10309-MLW. 2009 WL 137319. at *1-3 (D. Mass. Jan. 20. 2009). 

119 United States v Spensley, No. 09-CV-20082. 2011 WL 165835, at *1-2 (CD. Ill. Jan. 19.2011). 

18 
145 

the rights to dignity and privacy to prohibit the display of graphic videos to persons other than 

thejury and restrict a sketch artist's activities, particularly because the victim was mentally-ill 120 

. being capable of protecrion without denying the constitutional rights of the 

accused . .. 

This preamble was authored by Professor Laurence Tribe of Harvard Law School. 121 It 

makes clear that the amendment is not intended to, nor does it have the eifect of, denying the 

constitutional rights of the accused. Crime victims' rights do not stand in opposition to 

defendants' rights but rather parallel to them. 122 For example, just as a defendant possesses a 

right to speedy trial,123 the VRA would extend to crime victims a corresponding right to 

proceedings free from unreasonable delay 

If any seeming cont1icts were to emerge between defendants' rights and victims' rights, 

courts would retain the ultimate responsibility for harmonizing the rights at stake. The concept 

of harmonizing rights is not a new one. 124 Courts have harmonized rights in the past; for 

example, accommodating the rights of the press and the public to attend criminal trials with the 

rights of criminal defendants to a fair trial. 125 Courts can be expected to do the same with the 

VRA. 

At the same time, the VRA will eliminate a common reason for failing to protect victims' 

rights: the misguided view that the mere assertion of a defendant's constitutional right 

automatically frumps a victim's right. In some of the litigated cases, victims' rights have not 

120 Unitcd States v. Kaufman, Nos. CRIMA 04-40141-01, CRIMA 04-40141-02, 2005 WL 2M8070, at *1-4 (D. 

Kan. Oct. 17, 2005). 

121 Proposed Cuns/flU/iunal Amendmenl to PruleCl LI'fme Viclims: Hearing un s.J Res. 1 Be/ore fhe S. Comm. un 

the '/l/dicimYo 108lh Congo 230 (2003) (slalemenl of Sleven J. TwiSl). 

122 .')'ee geflera/~v Rlchard Barajas & Scott Ale>.ander Nelson, 'f7ie Proposed Crime llctims' f<'ederal Constitutional 

//mendment: Working TmvQl'd a Propel' lJalancc, 49 BAYLOR L. RI-<;\,. 1, 16-19 (1997). 

121 U.S. COKST. amend. VI. 

12-'1 ,)'ee Laurence H. Tribe & Paul G. Cassell, Embed the Rights (~lr7ct;rns;'1 the COllstitutioll, LA. TnvfEs, July G, 

1998, at B5 

12< See, e.g., Press-Enter. Co. v. Superior Court. 478 U.S. I. 9 (1986) (bal1ncing the "qualified First Amendment 

right of public access' against the ""right of the accused to a fair tria]"") 

19 
146 

been enforced because defendants have made vague, imprecise, and inaccurate claims about their 

federal constitutional due process rights being violated. Those claims would be unavailing after 

the passage of a federal amendment. For this reason, the mere fact of passing a Victims' Rights 

Amendment can be expected to bring a dramatic improvement to the way in which victims' 

rights are enforced, even were no enforcement actions to be brought by victims or their 

advocates . 

. . . shall not be denied or abridged by the United States or any State. 

This provision would ensure that the rights extended by Section I actually have 

content-specifically, that they cannot be denied in either the federal or state criminal justice 

systems. The VRA follows well-plowed ground in creating criminal justice rights that apply to 

both the federal and state cases. Earlier in the nation's history, the Bill of Rights was applicable 

only against the federal government and not against state governments. 126 Since the passage of 

the Fourteenth Amendment,127 however, the great bulk of criminal procedure rights have been 

"incorporated" into the Due Process Clause and thereby made applicable in state proceedings. 12' 

It is true that plausible arguments could be made for trimming the reach of incorporation 

doctrine. '2,! But it is unlikely that we will ever retreat from our current commitment to afford 

criminal defendants a basic set of rights, such as the right to counsel. Victims are not asking for 

any retreat, but for an extension-for a national commitment to provide basic rights in the 

m See BalTon ex rei. Tieman v. Mayor of Baltimorc. 32 U.S. (7 Pct.) 243 (lS33) 

12· U.S. CONST. amend. XIV 

1:28 U.S. COI\ST. amend. V; sec, e.g, Duncan v. Louisiana, 391 U.S. 145 (1968); Manoy v Hogan, 378 U.S. 1 (1964). 

1::':1 Sec, e.g, Donald A. Dripps, Foreword: /Igainsf Police Interrogation /lnd the Privilege //gaillst S'e((-

Incrimination, 78 1. CRlr>.L L. & CRIM1NOJ.O(lY 699, 701-02 (1988) (arguing for reduction of federal involvement in 

Afiranda rights): Henry J Friendly. The Bd! afRights as a Code of Crhninal Procedure, 53 CALIF. L. REv. 929 

(1965) (criticizing interpretation that '''Olud become so extensive as to produce, in effect, a constitutioI1:11 code of 

criminal procedure); Barry Latzer, Tmt'ard the Decentralizatioll of Criminal Procedure: ,)'tate Constitutiollal Lmt' 

and /)'elective Disincorporation, 87 J. CRr\'!. L. & CRI\fI)IOLOGY 63,63-70 (1996) (arguing that state constitutioI1:11 

development has reduced need for federal protections). 

20 
147 

process to criminal defendants and to their victims. This parallel treatment works no new 

damage to federalist principles. 

Indeed, precisely because of the constitutionalization and nationalization of criminal 

procedure, victims now find themselves needing constitutional protection. In an earlier era, it 

may have been possible for judges to infomlally accommodate victims' interests on an ad hoc 

basis. But the coin of the criminal justice realm has now become constitutional rights. Without 

such rights, victims have all too often not been taken seriously in the system. Thus, it is not a 

victims' rights amendment that poses a danger to state power, but the lack of an amendment. 

Without an amendment, states cannot give full effect to their policy decisions to protect the rights 

of victims. Only elevating these rights to the Federal Constitution will solve this problem. This 

is why the National Governor's Association-a long-standing friend of federalism-endorsed an 

earlier version of the amendment, explaining: 

The rights of victims have always received secondary consideration within 

the U.S. judicial process, even though states and the American people by a wide 

plurality consider victims' rights to be fundamental. Protection of these basic 

rights is essential and can onl y come from a fundamental change in our basic laW" 

the U.S. Constitution. 130 

It should be noted that the States and the federal government, within their respective 

jurisdictions, retain authority to define, in the first instance, conduct that is criminal. 131 The 

power to detlne victim is simply a corollary of the power to define criminal otfenses and, for 

state crimes, the power would remain with state legislatures. 

110 NAT'L GOVERKORS Ass ''1, POLlCY 23.1 (1997) 

111 See, e.g., United States v. L. Cohen Grocerv C.o., 255 U.S. 81, 87 (1921) (,Congress alone has power to define 

crimes against the U niled States.""). 

21 
148 

It is important to emphasize that the amendment would establish a floor-not a ceilingfor crime victims' rights 132 and States will remain free to enact (or continue, as indeed many 

have already enacted) more expansive rights than are established in this amendment. Rights 

established in a state's constitution would be subject to the independent construction of the 

state's courts. 133 

The crime victim sha11, moreovCl; have the rights to reasonable notice of. . . 

public proceedings relating to the offense, , , 

The victims' right to reasonable notice about proceedings is a critical right. Because 

victims and their families are directly and often irreparably hanned by crime, they have a vital 

interest in knowing about any subsequent prosecution. Yet in spite of statutes extending a right 

to notice to crime victims, some victims continue to be unaware of that right. The recent GAO 

Report, for example, found that approximately twenty-five percent of the responding federal 

crime victims were unaware of their right to notice of court hearings under the CVRA.134 Even 

larger percentages of failure to provide required notices were found in a survey of various state 

criminal justice systems. ns Distressingly, the same survey found that racial minority victims 

were less likely to have been notified than their white counterparts. 136 

The Victims' Rights Amendment would guarantee crime victims a right to reasonahle 

notice. This formulation tracks the CVRA, which extends to crime victims the right "to 

reasonable notice" of court proceedings.137 Similar fonnulations are found in state 

13' See S. REp. No. 105-409, at 24 (1998) ("In other words, the amendment sets a national 'floor' for the protecting 

of victims rights, 110t allY SOlt of 'ceiling.' Legislatures, including Congress, arc certainly frce to give statuto!), 

rights Lo an victims of crime, and the amendment \\,111 in a11likelihood be an occasIon for victims' statutes to be reexamined and, in some cases, e:\pallded. "). 

133.')'ee Michiganv. Long, 463 U.S. 1032,1041 (1983). 

'" U.S. GOV'T ACC'Oll'lTABILITYOFFICE, supra note 73, at 82. 

11-'; National Victim Center, Comparison of rf7lite and .Non-n7lde Crhlle Victim Re.spollses Reganhng r7ct;ms' 

Rizhts, in BELOOF, CASSELL & TV.'IST, supra note 1, at 631. 11hld. 

11' 18 u.se ~ 3771(a)(2) (2006) 

22 
149 

constitutional amendments. For instance, the California State Constitution promises crime 

victims "reasonable notice" of all public proceedings. 138 

No doubt, in implementing language Congress and the states will provide additional 

details about how reasonable notice is to be provided. I will again draw on my own state of Utah 

to provide an example of how notice could be structured. The Utah Rights of Crime Victims Act 

provides that "[ w Jithin seven days of the filing of felony criminal charges against a defendant, 

the prosecuting agency shall provide an initial notice to reasonably identifiable and locatable 

victims of the crime contained in the charges, except as otherwise provided in this chapter."n'! 

The initial notice must contain information about "electing to receive notice of subsequent 

important criminal justice hearings." 140 In practice, Utah prosecuting agencies have provided 

these notices with a detachable postcard or computer generated letter that victims simply return 

to the prosecutor's office to receive subsequent notices about proceedings. The return postcard 

serves as the victims' request for further notices. In the absence of such a request, a prosecutor 

need not send any further notices.'4' The statute could also spell out situations where notice 

could not be reasonably provided, such as emergency hearings necessitated by unanticipated 

events. In Utah, for instance, in the event of an unforeseen hearing for which notice is required, 

"a good faith attempt to contact the victim by telephone" meets the notice requirement. 142 

m CAL. CONST. mt. I, § 28(b )(7). 

139 UTAII CODE MO:. § 77-38-3(1) (West, Westlaw through 2011 Legis. Sess.). The "except as otherwise provided" 

provision refers to limitations for good faith attempts by prosecntors to provide notice and situations involving lllorc 

than Len vlctlms. fd. ~ 77-3X-3(4)(b), (10) 5,'ee general!."v Cassell, lJalancinf,; the .o:;,'cales, supra note 7 (provldlng 

l11fomlation about the implemenlation of Utah's Rights of Crime Victims Act and utili;:ed throughout this 

paragraph). 

1-10 § 77-38-3(2). The notice ,,,ill <11so contain information about other rights under the victims' statute. Id. 

1-11 Id. ~ 77-38-3(8) Furthermore, victims must keep their address and telephone number current ,,,ith the 

rrosecuting agency to 1l1:1intain their right to notice, ld. 

" !d. § 77-38-3(4)(b). However. ofier the hearing for which notice wos improcticai. the prosecutor must inform the 

victim of that proceeding's result. ld. 

23 
150 

In some cases, i.e., terrorist bombings or massive financial frauds, the large number of 

victims may render individual notifications impracticable. Tn such circumstances, notice by 

means of a press release to daily newspapers in the area would be a reasonable alternative to 

actual notice sent to each victim at his or her residential address. 143 New technologies may also 

provide a way of affording reasonable notice. For example, under the CVRA, courts have 

approved notice by publication, where the publication directs crime victims to a website 

maintained by the government with hyperlinks to updates on the case. 144 

The crime victim shall, moreOVeT; 

relating to the offense . .. 

. not be excluded from, public proceedings 

Victims also deserve the right to attend all public proceedings related to an offense The 

President's Task Force on Victims of Crime held hearings around the country in 1982 and 

concluded: 

The crime is often one of the most significant events in the lives of victims 

and their families. They, no less than the defendant, have a legitimate interest in 

the fair adjudication of the case, and should therefore, as an exception to the 

general rule providing for the exclusion of witnesses, be permitted to be present 

for the entire trial. 145 

Several strong reasons support this right, as Professor Doug Beloof and I have arb'lled at 

length elsewhere. 146 To begin with, the right to attend the trial may be critical in allowing the 

victim to recover from the psychological damage of a crime. "The victim's presence during the 

trial may also facilitate healing of the debilitating psychological wounds sulfered by a crime 

victim,,147 

113 United Slales v. Peralta No. 3:08cT233, 2009 WL 2998050, al *1-2 (WD.N.C. Sepl. 15,2(09). 

11'1 Uniled Slales v. Skilling, No. H-04-025-SS, 2009 WL 806757, al *1-2 (S.D. Tex. MaT. 26, 2(09): Uniled Slales v. 

Sal15man, No. 07-CR-{i41 (NGG), 2007 WL 4232985, al *1-2 (E.D.N.Y. Nov. 27, 2(07): Uniled Slales v. Croleau. 

No. 05-CR-30104-DRH. 2006 U.S. Dis!. LEXIS 23684, at *2-3 (SD. Ill. 2006). 

1-1-'; HERRINGTOK ET AL., 'supra note 10, <1t 80. 

1-10 ,')'ee Douglas E. Beloof & Paul G. C1ssell, The Crime T'ict;m :5' Right to Attend the Trial: The Reascendallt 

National Consen.sus, 9 LE\\1S & CLARKL. REv. 481 (2005). 

looP Ken Eikenbeny nctims ofCrimes-T'ict;ms afJustice. 34 WA\l\EL. REv. 29, 41 (1987). 

24 
151 

Concern about psychological trauma becomes even more pronounced when coupled with 

tindings that defense attorneys have, in some cases, used broad witness exclusion rules to hann 

victims.'4g As the Task Force found: 

[T]his procedure can be abused by [a defendant's] advocates and can impose an 

improper hardship on victims and their relatives. Time and again, we heard from 

victims or their families that they were unreasonably excluded from the trial at 

which responsibility for their victimization was assigned This is especially 

difficult for the families of murder victims and for witnesses who are denied the 

supportive presence of parents or spouses during their testimony. 

Testifying can be a harrowing experience, especially for children, those 

subjected to violent or terrifying ordeals, or those whose loved ones have been 

murdered. These witnesses often need the support provided by the presence of a 

family member or loved one, but these persons are often excluded if the defense 

has designated them as witnesses Sometimes those designations are legitimate; 

on other occasions they are only made to confuse or disturb the opposition. We 

suggest that the fairest balance between the need to support both witnesses and 

defendants and the need to prevent the undue influence of testimony lies in 

allowing a designated individual to be present regardless of his status as a 

witness.!49 

Without a right to attend trials, "the criminal justice system merely intensities the loss of 

control that victims feel after the crime.""o It should come as no surprise that "[v]ictims are 

often appalled to learn that they may not be allowed to sit in the courtroom during hearings or the 

trial. They are unable to understand why they cannot simply observe the proceedings in a 

supposedly public forum."!)! One crime victim put it more directly: "All we ask is that we be 

treated just like a criminal.,,!52 Tn this connection, it is worth remembering that defendants never 

11:--: .')'ee genel'a/~v OFFICI-<: FOR V1CTlr..lS OF CRllvlE, U.S. DI-<;P'TOF Jl STICE, THECRI\H'; V1CTllvl'S RIOHTTO BE 

PRESEI\T 2 (2001) (shO\'\.'ing hmv derense counsel can successrLLlly argLLe to have victims exchided as \'\.'itllesses) 

1-19 HERRINGTOK ET AL., 'supra note 10. at 80. 

I ", Deborah P. Kelly, Tletims, 34 WAYKE L. REv 69, 72 (1987). 

1 ~l Marlene A. Young, A ('onstdut;onal Amendment jar l/Ictims of Crime: The r7ct;rns' Per.spective. 34 WA't"NE L. 

REv 51, 58 (1987) 

'" 1d. at 59 (quoting Edmund New1on. ('!"Imina!s Have All the Rights, LADIES' HO~IE l, Sept. 1986) 

25 
152 

suggest that they could be validly excluded from the trial if the prosecution requests their 

sequestration. Defendants trequently take full advantage of their right to be in the courtroom. 153 

To ensure that victims can attend court proceedings, the Victims' Rights Amendment 

extends them this unqualified right. Many state amendments have similar provisions. 154 Such an 

unqualified right does not interfere with a defendant's right for the simple reason that defendants 

have no constitutional right to exclude victims from the courtroom. 155 

The amendment will give victims a right not to be excluded from public proceedings. 

The right is phrased in the negative--a right 110t to be excluded-thus avoiding the possible 

suggestion that a right "to attend" carried with it a victim's right to demand payment from the 

public fIsc for travel to court. 156 

The right is limited to public proceedings. While the great bulk of court proceedings are 

public, occasionally they must be closed for various compelling reasons. The Victims' Rights 

Amendment makes no change in court closure policies, but simply indicates that when a 

proceeding is closed, the victim may be excluded as well. An illustration is the procedures that 

courts may employ to prevent disclosure of confidential national security information. 157 When 

court proceedings are closed to the public pursuant to these provisions, a victim will have no 

153 See LINDAE. LEDRAY, RECOVERING FROI",! RAPE 199 (2d ed. 1994) ("Even the most disheveled lrapist! \1rilllunl 

up in court clean-shaven, ,,,ith a haircut and often ,,,earing a suit and tie. He will not appear to be the type of ffi111 

who could rape."). 

1 ~-'I ,)'ee, e.g., ALASK.A. COl'\ST. aI1. I, § 2-1- (right "to be present at all climinal. . proceedings where the accused has 

the right to be presenf'); MIcn. CONST., art. I, § 24(1) (right .. to attend the trial and all other comt proceedings the 

accused has the right to attend"); OR. R. E'-'lD. 615 ("citncss exclusion mle docs not apply to "victim in a criminal 

case--). 5-ice Beloor & Cassell, supra nole 146, at 504-19 (provlding a comprehensi\'e disclLssion or stale law on this 

subject). 

155 See Beloor & Cassell, s"pra nole 145, at 520-34. See, e.g, Uniled States ,. Ed\\ards, 526 F.3d 747,757-58 (11th 

Cir.2008) 

1<0 q: ALA. CODE § 15-14-54 (Westlow tluough 2012 Legis. Sess.) (right "not [to] be excluded from court ... during 

the trial or hearing or any portion thereof. . which in any way pertains to such offense--). 

'" See generally WAY'IE R. LAFAVE ET. AL .. CRIlvlINALPROCEDUlE § 23.1(b) (3d ed. 2007) (discussing coUIt closure 

cases) 

26 
153 

right to attend Finally, the victims right to attend is limited to proceedings relating to the 

offense, rather than open-endedly creating a right to attend any sort of proceedings. 

Occasionally the claim is advanced that a Victims' Rights Amendment would somehow 

allow victims to "act[J in an excessively emotional manner in front of the jury or convey their 

opinions about the proceedings to that jury.,,158 Such suggestions misunderstand the effect of the 

right-not-to-be-excluded provision In this connection, it is interesting that no specific 

illustrations of a victims' right provision actually being interpreted in this fashion have, to my 

knowledge, been offered. The reason for this dearth of illustrations is that courts undoubtedly 

understand that a victims' right to be present does not confer any right to disrupt court 

proceedings. Here, courts are simply treating victims' rights in the same fashion as defendants' 

rights. Defendants have a right to be present during criminal proceedings, which stems from 

both the Confrontation and Due Process Clauses of the Constitution. 159 Courts have consistently 

held that these constitutional rights do not confer on defendants any right to engage in disruptive 

behavior. 160 

The crime I'iclim shaff, moreovel; have Ihe righls . 10 be heard al allY release, 

plea, sentencing, or other such proceeding involving any right established by this 

article . .. 

Victims deserve the right to be heard at appropriate points in the criminal justice process, 

and thus deserve to participate directly in the criminal justice process. The CVRA promises 

crime victims "[tJhe right to be reasonably heard at any public proceeding in the district court 

158 Robert P. Mosteller, llennls' Rights and the United .')'tates ConstUutiow /In "fiart to Recast the HattIe in 

Criminall.itif!pfion. 85 Gm. L.J. 1691, 1702 (1997) 

1" See Dia, v. Uniled Slales, 223 U.S. H2. 454-555 (1912); Kenlucky v. Slincer. 482 U.S. no, 740-44 (1987). 

160 See, e.g.. Illinois v. Allen. 397 U.S. 337 (1970) (defell(l1nt waived right to be present by continued dismptive 

behavior after warning from court); Saccommlllo v. Scully. 758 F.2d 62. 64-65 (2d Cir. 1985) (concluding t1h1t 

defend1nfs obstreperous behaVIor justified his exclusion from courtroom); Foster 'v. Waimvright, 686 F2d 1382. 

1387 (11th Cir. 1982) (defell(l1nt forfeited right to be present at trial by intermpting proceeding after warning by 

judge, even though his behavior '''<1S neither abusive nor violent). 

27 
154 

involving release, plea, or sentencing.,,161 A number of states have likewise added provisions to 

their state constitutions allowing similar victim participation. 162 

The VRA identifies three specific and one general points in the process where a victim 

statement is permitted. First, the VRA would extend the right to be heard regarding any release 

proceeding-i.e., bail hearings. This will allow, for example, a victim of domestic violence to 

warn the court about possible violence should the defendant be granted bail. At the same time, 

however, it must be emphasized that nothing in the VRA gives victims the ability to veto the 

release of any defendant. The ultimate decision to hold or release a defendant remains with the 

judge or other decision-maker. The amendment will simply provide the judge with more 

information on which to base that decision. Release proceedings would include not only bail 

hearings but other hearings involving the release of accused or convicted offenders, such as 

parole hearings and any other hearing that might result in a release from custody. Victim 

statements to parole boards are particularly important because they "can enable the board to fully 

appreciate the nature of the offense and the degree to which the particular inmate may present 

risks to the victim or community upon release." 163 

The right to be heard also extends to any proceeding involving a plea. Under the present 

rules of procedure in most states, every plea bargain between a defendant and the state to resolve 

161 18 u.se ~ 377I(a)(4) (2006) 

16' See, e.g., ARIZ. CONST. art II, ~ 2.I(A)(4) (right to be heard at proceedings involving post-arrest release, 

negotiated pleas, and sentencing); COLO. COI'ST. ar1. II, § I6a (right to be hear'd at critical stages); FLA. CONST. art I. 

§ 16(b) (right to be heard when relevant at all stages); ILL. CONST. art. I, § 8.1(4) (right to nl<11<e statement at 

sentencing); KA.'l. COI'ST. art. 15, § 15(a) (right to be heard at sentencing or anv other appropriate time); MIcn. 

CO~ST. or 1963, arl. 1, § 24(1) (righllo make slalemenl al senlencing); Mo. CONST arl. I, § 32(1)(2) (righllo be 

heard at gLL11Ly pleas, bajl hearings, senlenclngs, probation revocaLl0n hearings, and parole hearings, unless lnLerests 

or justice reqLrire othen"ise); N.M. CONST. art. II, § 24(A)(7) (right to make slatement at sentencing and postsentencing hearings); R.I. CONST. art. I. ~ 23 (right to address court at sentencing); WASH. C.oNST. art. I. ~ 35 (right 

to make st1tement at sentencing or release proceeding): WIS. CO)l"ST. art. L ~ 9m (oppomrnity to make statement to 

court at disposition); UTAH CONST. art. I, § 28(l)(b) (right to be heard at important proceedings) 

16~ Frances P. Bernat et aI., T'ictimimpact Laws and the Parole Process in the United ,States: Balallcillg r7ctim alld 

Inmate Rights andlnteres;,. 3 INT·L1ti:V. VICTIMOLOGY 121,134 (1994). 

28 
155 

a case before trial must be submitted to the trial court for approval. 164 If the court believes that 

the bargain is not in the interest of justice, it may reject it. 165 Unfortunately in some states, 

victims do not always have the opportunity to present to the judge information about the 

propriety of the plea agreements. Indeed, it may be that in some cases "keeping the victim away 

trom the judge. is one of the prime motivations for plea bargaining.,,166 Yet victims have 

compelling reasons for some role in the plea bargaining process' 

The victim's interests in participating in the plea bargaining process are 

many. The fact that they are consulted and listened to provide them with respect 

and an acknowledgment that they are the harmed individual. This in tum may 

contribute to the psychological healing of the victim. The victim may have 

financial interests in the form of restitution or compensatory fine. [B]ecause 

judges act in the public interest when they decide to accept or rej ect a plea 

bargain, the victim is an additional source of information for the court. 167 

It should be noted that nothing in the Victims' Rights Amendment requires a prosecutor 

to obtain a victim's approval before agreeing to a plea bargain. The lanb'llage is specifically 

limited to a victim's right to be heard regarding a plea proceeding. A meeting between a 

prosecutor and a defense attorney to negotiate a plea is not a proceeding involving the plea, and 

therefore victims are conferred no right to attend the meeting. In light of the victim's right to be 

heard regarding any deal, however, it may well be the prosecutors would undertake such 

consultation at a mutually convenient time as a matter of prosecutorial discretion. This has been 

the experience in my state of Utah. While prosecutors are not required to consult with victims 

before entering plea agreements, many of them do. In serious cases such as homicides and rapes, 

16'1 .')'ee genel'a/~v 81-<:1.00F, C,.\SSr:IJ,& T\VrST, supra nole 1, at 422 (disCLLssing this issue). 

,,0' See, e.g.. UTAHR. CRIM. P. ll(e) ("The court nmy refuse to occept a plea of guilty "): Stote v. MmJe, 783 P.2d 

Gl. GG (Utoh Ct. App. 1989) (following Rule 11(e) ond holding "[nlotrung in the statute requires a court to accept a 

Ill.\ilty plea"). 

66 HERBERT S. MILLER ET AL.. PLEABARGAI'IIKG IK THE U'IITED STATES 70 (1978). 

16' BELOOF, CASSELL & T\\lST. supra note 1, ot 423. 

29 
156 

Utah courts have also contributed to this trend by not infrequently asking prosecutors whether 

victims have been consulted about plea bargains. 

As with the right to be heard regarding bail, it should be noted that victims are only given 

a voice in the plea bargaining process, not a veto. The judge is not required to follow the 

victim's suggested course of action on the plea, but simply has more infonnation on which to 

base such a detennination. 

The Victims' Rights Amendment also would extend the right to be heard to proceedings 

detennining a sentence. Defendants have the right to directly address the sentencing authority 

before sentence is imposed. 168 The Victims' Rights Amendment extends the same basic right to 

victims, allowing them to present a victim impact statement. 

Elsewhere I have argued at length in favor of such statements. 'W The essential rationales 

are that victim impact statements provide information to the sentencer, have therapeutic and 

other benetlts for victims, explain the crime's hann to the defendant, and improve the perceived 

fairness of sentencing. 170 The arguments in favor of victim impact statements have been 

universally persuasive in this country, as the federal system and all tlfty states generally provide 

victims the opportunity to deliver a victim impact statement. 171 

Victims would exercise their right to be heard in any appropriate fashion, including 

making an oral statement at court proceedings or submitting written infonnation for the court's 

16' See, e.g .. FED. R. EvlD. 32(i)(4)(A); UTAHR. CRIlvl. P. 22(a). 

169 Paul G. Cassell. In D~tense ofTfctim Impact Statements. 6 OHIO ST. J. CRlvl. L. 611 (2009) 

17" Id. at 619-25 

171 Id. at 615: see also Douglas E. Beloof, Constd'lltionallmplicatlOl1s ofO-;me Tfctims as Part;c;pants, 88 COIL"IELL 

L. REv 282. 299-305 (2003). 

30 
157 

consideration. 172 Defendants can respond to the information that victims provide in appropriate 

ways, such as providing counter-evidence. 173 

The victim also would have the general right to be heard at a proceeding involving any 

right established by this article. This allows victims to present information in support of a claim 

of right under the amendment, consistent with nonnal due process principles. 174 

The victim's right to be heard under the VRA is subject to limitations. A victim would 

not have the right to speak at proceedings other than those identified in the amendment. For 

example, the victims gain no right to speak at the trial. Given the present construction of these 

proceedings, there is no realistic design for giving a victim an unqualified right to speak. At trial, 

however, victims will often be called as witnesses by the prosecution and if so, they will testify 

as any other witness would. 

In all proceedings, victims must exercise their right to be heard in a way that is not 

disruptive. This is consistent with the fact that a defendant's constitutional right to be heard 

carnes with it no power to disrupt the court's proceedings. 175 

... 10 proceedin?;sFeeFom unreasonable delay. 

This provision is designed to be the victims' analogue to the defendant's right to a speedy 

trial found in the Sixth Amendment. 176 The defendant's right is designed, infer aha, "to 

minimize anxiety and concern accompanying public accusation" and "to limit the possibilities 

17~ A previous 'version of the amendment allo,,,ed a victim to 1l1:1ke an ornl statement or submit a '\yritten" statement. 

SJ. Res. G. 105th Congo (1997). This version has stricken the artificial limitation to written statements and would 

thus accollllllodate other media (such as 'videotapes or Inteillet COllullUllications). 

li3 See general~v Paul G. Cassell & Edna Ercz, T'le/im Impacl StatemenlS and Ancillary Harm: The American 

Per'peClive, 15 C~. CRIN!. L. REV. 149, 175-96 (2011) (providing a fifty state SUlVCY on procedures conceming 

victim impact slaLemellts). 

17'1 Hamdi v. RUTIlsfeld, 542 U.S. S07, 533 (2004) ("For more than a centLLT)' the central meaning ofprocedmal dLLe 

process has been clear PaTtles \'\.'hose rights are to be alTecled are elltltled to be heard." (1nlemal quotall0n 

omitted» 

17< See FED. R. CRIlvl. P. 43(b)(3) (noting circulllstances in which dismptive conduct can lead to defendant's 

exclusion from the courtroom). 

170 U.S CO)l"ST. amend. VI ('In all crimil1:11 prosecutions, the accused sh:111 el~ioy tIle right to a speedy ... trial 

"). 

31 
158 

that long delay will impair the ability of an accused to defend himself,,177 The interests 

underlying a speedy trial, however, are not confined to defendant. Indeed, the Supreme Court 

has acknowledged that: 

[T]here is a societal interest in providing a speedy trial which exists separate 

from, and at times in opposition to, the interests of the accused. The inability of 

courts to provide a prompt trial has contributed to a large backlog of cases in 

urban courts which, among other things, enables defendants to negotiate more 

effectively for pleas of guilty to lesser offenses and otherwise manipulate the 

system. In 

The ironic result is that in many criminal courts today the defendant is the only person without 

an interest in a speedy trial. Delay often works unfairly to the defendant's advantage. Witnesses 

may become unavailable, their memories may fade, evidence may be lost, or the case may 

simply grow stale and receive a lower priority with the passage of time. 

While victims and society as a whole have an interest in a speedy trial, the current 

constitutional structure provides no means for vindication of that right. Although the Supreme 

Court has acknowledged the "societal interest" in a speedy trial, it is widely accepted that "it is 

rather misleading to say ... that this' societal interest' is somehow part of the right. The fact of 

the matter is that the 'Bill of Rights, of course, does not speak of the rights and interests of the 

government. ",179 As a result, victims frequently face delays that by any measure must be 

regarded as unjustified and unreasonable, yet have no constitutional ability to challenge them. 

It is not a coincidence that these delays are found most commonly in cases of child sex 

assault."O Children have the most difficulty in coping with extended delays. An experienced 

victim-witness coordinator in my home state described the effects of protracted litigation in a 

17' Smith Y. Hooey, 393 U.S. 374, 378 (1969) (citing United St2tes v. EwelL 383 U.S 116,120 (1966)) 

'" Borkerv. Wingo, 407 U.S. 514. 519 (1972) 

179 LAFAVE ET. AL., supra note 157, at § 18.1(b) (footnote omitted) 

lS0 /)'ee A Proposed ('onstdut;onal Amendment to Establish A Bill (~tRig"tsj(W Crime nct;ms: Hearing on /)',J Res. 

52 B~ti)f"e the S. Comm. on the Judiciarv. 104th Congo 29 (1996) (statement of John Walsh) 

32 
159 

recent case: "The delays were a nightmare. Every time the counselors for the children would 

call and say we are back to step one. The frustration level was unbelievable.,,181 Victims cannot 

heal from the trauma of the crime until the trial is over and the matter has been concluded. 1X2 

To avoid such unwarranted delays, the Victims' Rights Amendment will give crime 

victims the right to proceedings free from unreasonable delay. This fonnulation tracks the 

language from the CVRA lX3 A number of states have already established similar protections for 

victims. 184 

As the wording of the federal provision makes clear, the courts are not required to follow 

victims demands for scheduling trial or prevent all delay, but rather to insure against 

"unreasonable" delay. 185 In interpreting this provision, the court can look to the body of case law 

that already exists for resolving defendants' speedy trial claims. For example, in Barker 1: 

Wingo, the United States Supreme Court set forth various factors that could be used to evaluate a 

defendant's speedy trial challenge in the wake of a delay. 1'6 As generally understood today, 

those factors are: (1) the length of the delay; (2) the reason for the delay; (3) whether and when 

the defendant asserted his speedy trial right; and (4) whether the defendant was prejudiced by the 

de1ay.1X7 These kinds of factors could also be applied to victims' claims. For example, the 

length of the delay and the reason for the delay (factors (I) and (2)) would remain relevant in 

assessing victims' claims. Whether and when a victim asserted the right (factor (3)) would also 

1ill Telephone Interview '''lth Betty Mueller. VictinvWitness Coordinator. Weber Cnty. Attorney;s Office (Oct. G, 

1993) 

1" See HCRRIKGTOK ET AL, supra note 10. at 75; Wah This Morning (KSL television broadcast Jan. 6, 1994) 

(statement of Conic, rape 'ilictim) COnce the tlial ,vas O'ilCf, both my husband and I felt we had lost a year and a half 

or OlLr lives.") 

m 18 U.S.c. § 3771 (a)(7) (2006) 

1"1 See ARI/. CONS!. art.)1, § 2.1(A)(10); CAL. CO~ST. art. I, § 29: )1,1,. CONST. art. I, § 8. 1 (a)(6): MICH. CONS'!'. art. 

I, § 24(1): Mo. COKST. art. L ~ 32(1)(5); WIS. CO'lST. art I, § 9m 

IS< See, e.g.. United States v. Wils01\ 350 F Supp. 2d 910. 931 (D. Utah 2005) (interpreting CVRAs right to 

Ptfoceedings fre.e from unreasonable deby to preclude delay in sentencing) 

so Barkerv. Wmgo, 407 U.S. 514. 530-33 (1972). 

lS-; S'ee hi. /)'ee generally L'\FAVE ET AL., supra note 157, at ~ 18.2 

33 
160 

be relevant, although due regard should be given to the frequent difficulty that unrepresented 

victims have in asserting their legal claims. Defendants are not deemed to have waived their 

right to a speedy trial simply through failing to assert it. ' " Rather, the circumstances of the 

defendant's assertion of the right is given "strong evidentiary weight" in evaluating his claims. !89 

A similar approach would work for trial courts considering victims' motions. Finally, while 

victims are not prejudiced in precisely the same fashion as defendants (factor (4)), the Supreme 

Court has instructed that "prejudice" should be "assessed in the light of the interests of 

defendants which the speedy trial right was designed to protect," including the interest "to 

minimize anxiety and concern of the accused" and "to limit the possibility that the [defendant's 

presentation of his case] will be impaired.,,!90 The same sorts of considerations apply to victims 

and could be evaluated in assessing victims' claims 

It is also noteworthy that statutes in federal courts and in most states explicate a 

defendant's right to a speedy trial. For example, the Speedy Trial Act of 1974 specitlcally 

implements a defendant's Sixth Amendment right to a speedy trial by providing a specitlc time 

line (seventy days) for starting a trial in the absence of good reasons for delay.!9! In the wake of 

the passage of a Victims' Rights Amendment, Congress could revise the Speedy Trial Act to 

include not only defendants' interests but also victims' interests, thereby answering any detailed 

implementation questions that might remain. For instance, one desirable amplitication would be 

a requirement that courts record reasons for granting any continuance. As the Task Force on 

Victims of Crime noted, "the inherent human tendency [is] to postpone matters, often for 

," See Barker, 407 U.S. at 528 ("We reject. therefore. the mle tlmt a defell(l1nt who fails to dem1nd a speedy trial 

forever '''<lives his right. ") 

lS9 I d. <1t531-32 

190 I d. at 532. 

191 Pub. L. No. 96-43. 93 Stat. 327 (codified as mnendedat 18 U.S.c. §§ 3161-74) (2008) 

34 
161 

insufficient reason," and accordingly the Task Force recommended that the "reasons for any 

granted continuance ... be clearly stated on the record."I92 

... to reasonable notice of the release or escape of the accused . .. 

Defendants and convicted offenders who are released pose a special danger to their 

victims. An unconvicted defendant may threaten, or indeed carry out, violence to permanently 

silence the victim and prevent subsequent testimony. A convicted offender may attack the victim 

in a quest for revenge 

Such dangers are particularly pronounced for victims of domestic violence and rape. For 

instance, Colleen McHugh obtained a restraining order against her former boyfriend Eric 

Boettcher on January 12, 1994. 193 Authorities soon placed him in jail for violating that order. 194 

He later posted bail and tracked McHugh to a relative's apartment, where on January 20, 1994, 

he fatally shot both Colleen McHugh and himself. 195 No one had notified McHugh of 

Boettcher's release from custody. 196 

The VRA would ensure that victims are not suddenly surprised to discover that an 

offender is back on the streets. The notice is provided in either of two circumstances: either a 

release, which could include a post-arrest release or the post-conviction paroling of a defendant, 

or an escape. Several states have comparable requirements. 197 The administrative burdens 

associated with such notitlcation requirements have recently been minimized by technological 

'" HERRINGTOK ET AL., 'supra note 10, ot 76: see AIUZ. REv STAT. ANN. ~13-4435(F) (Westlow tluough 2012 Legis 

Sess.) (requiring courts to "stote on the record the specific reoson for [anyl continuance"): UTAH CODEA'lN. ~ 77-

38-7(3)(b) (Lexis Nexis, LEXIS through 2011 Legis. Scss.) (requiring COUltS, in the event of granting continuance. 

to "cnter in the record the specific reason for the continuance and the procedures that have been taken to avoid 

further delavs") 

193 JelTrey A. Cross, Note, 'I/ze Repeated Sl!fferings of j)mnestic t~i()lence 11ctims "Vot ,"./otified afTheir //ssailant s Pre-Frial Release.fi'0111 Cust()£~v: // Callfor .Handatmy J)omestic lfolence t1ctim Aiot(jicatiml I,egis/ation, 34 U. 

LOIIISYlI.r.>:]. FA\!. L. 915, 915-16 (1996). 

19-'1S'ee hi. 

19-'; Id. 

190 See id. (providing tlns and other helpful exomples) 

19'"7 S'ee, e.g., ARIZ. CONST. art. IL § 2.1 (victim's right to "be informed, upon request, ,,,hen the accused or com'icted 

person is released from custody or Th1S escaped"). 

35 
162 

advances Many states have developed computer-operated programs that can place a telephone 

call to a programmed number when a prisoner is moved from one prison to another or 

released. lOX 

... to due consideration of the crime victim s sa!ety. 

This provision builds on language in the CVRA guaranteeing victims "[t]he right to be 

reasonably protected from the accused.,,'90 State amendments contain similar language, such as 

the California Constitution extending a right to victims to "be reasonably protected from the 

defendant and persons acting on behalf of the defendant" and to "have the safety of the victim 

and the victim's family considered in fixing the amount of bail and release conditions for the 

defendant.,,20o 

This provision guarantees that victims' safety will be considered by courts, parole boards, 

and other government actors in making discretionary decisions that could harm a crime victim201 

For example, in considering whether to release a suspect on bail, a court will be required to 

consider the victim's safety. This dovetails with the earlier-discussed provision giving victims a 

right to speak at proceedings involving bail. Once again, it is important to emphasize that 

nothing in the provision gives the victim any sort of a veto over the release of a defendant; 

alternatively, the provision does not grant any sort of prerogative to require the release of a 

defendant. To the contrary, the provision merely establishes a requirement that due 

consideration be given to such concerns in the process of determining release. 

Part of that consideration will undoubtedly be whether the defendant should be released 

subject to certain conditions. One often-used condition of release is a criminal protective 

," See About HNELillk, VINELIKK, https:!/www.vinelinkcom/(lastvisitedonMar. 23, 2012). 

199 18 u.se ~ 3771(0)(1) (2006) 

con CAL CONST. art. I, § 28(b)(2)-(3) 

~Ol In the case of a mandatory release of an offender (e.g., releasing a defendant ,,,ho has served the statutory 

maximum term of imprisonment), there is no such discretionary consideration to be made of a victim"s safety_ 

36 
163 

order202 For instance, in many domestic violence cases, courts may release a suspected offender 

on the condition that he2D3 refrain from contacting the victim. Tn many cases, consideralion of 

the safety of the victim will lead to courts crafting appropriate no conract orders and then 

enforcing them through the ordinary judicial processes currently in place . 

. , . 10 due consideration of the crime I'iclim:~ . .. primcy .. 

The VRA would also require courts to give "due consideration" to the crime victim's 

privacy. This provision building on a provision in the CVRA, which b'llarantees crime victims 

"[t]he right to be treated with fairness and with respect for the victim's dignity and privacy.,,204 

Various states have similar provisions. Arizona, for example, promises crime victims the right 

"[t]o be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, 

or abuse, throughout the criminal justice process.,,20S Similarly, California extends to victims the 

right "[t]o be treated with fairness and respect for his or her privacy and dignity. ,,206 The 

federal constitution appropriately should include such rights as well. 

... to restitution . .. 

This right would essentially constitutionalize a procedure that Congress has mandated for 

some crimes in the federal courts In the Mandatory Victims Restitution Act ("MVRA"),207 

Congress required federal courts to enter a restitution order in favor of victims for crimes of 

violence Section 3663A states that "[n]otwithstanding any other provision of law, when 

sentencing a defendant convicted of [a crime of violence as defined in 18 U.S.c. § 16] .. the 

202 .')'ee genel'a/~v 81-<:1.00F, C,.\SSr:IJ.& T\VrST, supra nole 1, at 310-23 

::m Serious domestic violence defendants <:Ire predominantly, although not exclusively, male 

'" 18 u.se ~ 3771(a)(8) 

'" AIUZ. CoNST., art. II, § 2.1. 

'00 Cal. Const., art. I. § 28(b)(1). 

co' 18 u.se ~~ 3663A. 3664 (2006). 

37 
164 

court shall order . that the defendant make restitution to the victim of the offense.,,208 In 

justifying this approach, the Judiciary Committee explained: 

The principle of restitution is an integral part of virtually every formal 

system of criminal justice, of every culture and every time. It holds that, 

whatever else the sanctioning power of society does to punish its wrongdoers, it 

should also ensure that the wrongdoer is required to the degree possible to restore 

the victim to his or her prior state ofwell_being209 

While restitution is critically important, the Committee found that restitution orders were only 

sometimes entered and, in general, "much progress remains to be made in the area of victim 

restitution.,,21o Accordingly, restitution was made mandatory for crimes of violence in federal 

cases. State constitutions contain similar provisions. For instance, the California Constitution 

provides crime victims a right to restitution and broadly provides: 

(A) it is the unequivocal intention of the People of the State of California that all 

persons who suffer losses as a result of criminal activity shall have the right to 

seek and secure restitution from the persons convicted of the crimes causing the 

losses they suffer. 

(8) Restitution shall be ordered from the convicted wrongdoer in every case, 

regardless of the sentence or disposition imposed, in which a crime victim suffers 

a loss. 

(C) All monetary payments, monies, and property collected from any person who 

has been ordered to make restitution shall be tirst applied to pay the amounts 

ordered as restitution to the victim211 

The Victims' Rights Amendment would effectively operate in much the same fashion as 

the MYRA, although it would elevate the importance ofrestitution212 Courts would be required 

to enter an order of restitution against the convicted offender. Thus, the offender would be 

legally obligated to make full restitution to the victim. However, not infrequently offenders lack 

208 § 3663A(a)(I) (emphasis added). 

2W S. REP. No. 10~-179. at 12-13 (1995) (quotinf!, S. REP. No. 97-532. at 30 (1982)). This report was later adopted 

as the legislative history orthe MYRA See H.R. Co'w Rb:p. No. 104-518. at 111-12 (1996). 

"" S. Rep. 104-179. at 13. 

'" CAL. CONST. art. I. ~ 28(b)(l3) 

~l ~ A c0l1stitutioI1:11 amendment protecting crime 'victims' rights '''QuId also help to more effectively ensure 

enforcement of existing restitution statutes. For example, the federal statutes do not appear to be working properly, 

at least in some cases. I discuss tIus issue at greater length in Part IV, i/~ti'a 

38 
165 

the means to make full restitution payments. Accordingly, the courts can establish an appropriate 

repayment schedule and enforce it during the period of time in which the offender is under the 

court's jurisdiction. m Moreover, the courts and implementing statutes could provide that 

restitution orders be enforceable as any other civil judgment. 

In further detennining the contours of the victims' restitution right, there are wellestablished bodies of law that can be examined.214 Moreover, details can be further explicated in 

implementing legislation accompanying the amendment. For instance, in determining the 

compensable losses, an implementing statute might rely on the current federal statute, which 

includes among the compensable losses medical and psychiatric services, physical and 

occupational therapy and rehabilitation, lost income, the costs of attending the trial, and in the 

case of homicide, funeral expenses 215 

The crime victim or the crime victim :\' lawftil representative has standing to fill!:y 

assert and enforce these rights in any cOllrt. 

This language will confer standing on victims to assert their rights. It tracks language in 

the CYRA, which provides that "[t]he crime victim or the crime victim's lawful representative . 

. may assert the rights described [in the CYRA].,,216 

Standing is a critically important provision that must be read in connection with all of the 

other provisions in the amendment. After extending rights to crime victims, this sentence 

ensures that they will be able to.ftdfy enforce those rights. In doing so, this sentence etIectively 

213 Cf 18 U .S.c. § 3664 (2006) (eslablishing reslilLLlion procedLLres). 

~l-'l ,')'ee generally Alan T. Harland, Alonetmy Remedies for the Tlctims afCrime: Assessing the Role a/Criminal 

COllrts. 30 UCLA L. REV 52 (1982). (:I" RESTATEMENT (Fm.ST) OF RESTITUTIO'! (2011) (setting forth established 

restitution principles in civil cases) 

,I< ~ 3GG3A. 

§ 3771(d)(I). 

39 
166 

overrules derelict court decisions that have occasionally held that crime victims lack standing or 

the full ability to enforce victims' rights enactments 217 

The Victims' Rights Amendment would eliminate once and for all the difficulty that 

crime victims have in being heard in court to protect their interests by conferring standing on the 

victim. A victim's lawful representative can also be heard, pennitting, for example, a parent to 

be heard on behalf of a child, a family member on behalf of a murder victim, or a lawyer to be 

heard on behalf of a victim-client. 218 The VRA extends standing only to victims or their 

representatives to avoid the possibility that a defendant might somehow seek to take advantage 

of victims' rights. This limitation prevents criminals from clothing themselves in the garb of a 

victim and claiming a victim's rights 219 In Arizona, for example, the courts have allowed an 

unindicted co-conspirator to take advantage of a victim's provision. 220 Such a result would not 

be permitted under the Victims' Rights Amendment. 

Nothing in this article prm'ides ground~ fiJI' a new trial or any claim fiJI' damages. 

This language restricts the remedies that victims may employ to enforce their rights by 

forbidding them from obtaining a new trial or money damages. It leaves open, however, all other 

possible remedies. 

'" See, e.g., United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997): C1ssell. supra note 3, ot 515-22 (discussing 

the .Alddgh cflse). The CYRA's standing provisions specifically overruled jlddgh, as is made clem in the 

CVRAs legislotive histOtT 

This legislation is meant to concet, not: continue, the legacy of the poor treatment of crime victims 

iu the criminal process. This legislation is meant: to ensure that: cases like the McVeigh case. 

where victims of the Oklahoma City bombing were effectively denied the right: to attend the trial 

ldo not recurJ and to avoid federal appeals courts from detemlinillg, as the Tenth Circuit COLLT1 or 

Appeals did lin AfdCighJ, that victims had no standing to seek revie\", or their right to attend the 

trial under the rOnller victims"la\\ that this bin replaces 

150 CONG. REC. 7303 (2004) (stotement o[Sen. Feinstein). 

~lR ,')'ee BELOOF, CASSELL & TV.'IST, supra note 1, at 61-64 (discussing representatives of victims). 

"9 E.g., Kc\N. COMT. ort. 15. ~ 15(e) 

CO" See Knapp v. Mortone. 823 P.2d 685.686-87 (Ariz 1992) (en bone). 

40 
167 

A dilemma posed by enforcement of victims' rights is whether victims are allowed to 

appeal a previously-entered court judgment or seek money damages for non-compliance with 

victims' rights. If victims are given such power, the ability to enforce victims' rights increases; 

on the other hand, the finality of court judgments is concomitantly reduced and governmental 

actors may have to set aside t1nancial resources to pay damages. Depending on the weight one 

assigns to the competing concerns, different approaches seem desirable. For example, it has 

been arb'lled that allowing the possibility of victim appeals of plea bargains could even redound 

to the detriment of crime victims generally by making plea bargains less desirable to criminal 

defendants and forcing crime victims to undergo more trials. 221 

The Victims' Rights Amendment strikes a compromise on the enforcement issue. It 

provides that nothing in this article shall provide a victim with grounds for overturning a trial or 

for money damages. These limitations restrict some of the avenues for crime victims to enforce 

their rights, while leaving many others open. Tn providing that nothing creates those remedies, 

the VRA makes clear that it-by itself-does not automatically create a right to a new jury trial 

or money damages. In other words, the language simply removes this aspect of the remedies 

question for the judicial branch and assigns it to the legislative branches in Congress and the 

states 222 Of course, it is in the legislative branch where the appropriate facts can be gathered 

and compromises struck to resolve which challenges, if any, are appropriate in that particular 

jurisdiction 

It is true that one powerful way of enforcing victims' rights is through a lawsuit for 

money damages. Such actions would create clear t1nancial incentives for criminal justice 

agencies to comply with victims' rights requirements Some states have authorized damages 

'" See Sorah N. Welling, T,ctim Participation ill Plea Bargains, 65 W,~~H. u. L.Q 301,350 (1987) 

~22 A,,,arding a llfW\" trial might also mise double jeopardy issues. Because the VRA does not eliminate defendanfs 

rights, the VRA would not change ony double jeopardy protections. 

41 
168 

actions in limited circumstances 223 On the other hand, civil suits filed by victims against the 

state suffer from several disadvantages. First and foremost, in a time of limited state resources 

and pressing demands for state funds, the prospect of expensive awards to crime victims might 

reduce the prospects of ever passing a Victims' Rights Amendment A related point is that such 

suits might give the impression that crime victims seek tinancial gain rather than fundamental 

justice Because of such concerns, a number of states have explicitly provided that their victims' 

rights amendments create no right to sue for damages. 224 Other states have reached the same 

destination by providing explicitly that the remedies for violations of the victims' amendment 

will be provided by the legislature, and in tum by limiting the legislatively-authorized remedies 

to other-than-monetary damages 225 

The Victims' Rights Amendment breaks no new ground but simply follows the prevailing 

view in denying the possibility of a claim for damages under the VRA. For example, no claim 

could be tiled for money damages under 18 U.S.C. § 1983 per the VRA. 

Because money damages are not allowed, what will enforce victims' rights? mitially, 

victims' groups hope that such enforcement issues will be relatively rare in the wake of the 

passage of a federal constitutional amendment. Were such an amendment to be adopted, every 

judge, prosecutor, defense attorney, court clerk, and crime victim in the country would know 

about victims' rights and that they were constitutionally protected in our nation's fundamental 

'" See, e.g" AIUZ. REv. STAT. A'N. ~ 13-4437(B) (Westlaw tluough 2012 Legis. Sess.) C'A victim I",s the right to 

recover damages from a gO'vcllnllcntal entity responsible for the intentional, kn01ying or grossly negligent violation 

of the victim's lights ... "'); see also Davya B. GC1YlUZ & Maria A. Mercurio, Note, The Victims' Bill a/Rights: Are 

liclims All Dressed Up with No Place to Go?, 8 ST. JOII'l'S J. LeGAL COMMCKT. 251, 262-65 (1992) (discussing 

lack of aval1able redress for violations of victims' rights). 

2:>1 See, e.g, KAN. CO"JST arL 15, ~ 15(b) CNothing in this section sha11 be construed as creating a calISe of action 

ror money damages against the slate ."); Mo. CO'ls'J'. art. L § 32(3) (same); T>:x. CO'ls'J'. art. L § 30(e) ('The 

legislature may enact la\YS to prO'vide that a judge, attorney for the state, peace officer. or hn\' enforcement agency is 

not li.:1ble for a failure or inability to provide a right enumerated in this section,") 

'" See, e.g., ILL. CONST. ort. I, § 8.1(b) ("The General Assembly Imy provide bv law for the enforcement of this 

Section."): 725 ILL. COMPo STAT. ANN. 120/9 (West. Westlow through 2011 Legis. Sess.) ("This Act does not. 

grant any person a cause of action for damages r ,,,hich does not otIlenvise existl "). 

42 
169 

charter. This is an Cl?!orcement power that, even by itself, goes far beyond anything found in 

existing victims' provisions. The mere fact that rights are found in the United States Constitution 

gives great reason to expect that they will be followed. Confirming this view is the fact that the 

provisions of our Constitution-freedom of speech, freedom of the press, freedom of religionare all generally honored without specific enforcement provisions. The Victims' Rights 

Amendment will eliminate what is a common reason for failing to protect victims' rightssimple ignorance about victims and their rights. 

Beyond mere hope, victims will be able to bring court actions to secure enforcement of 

their rights. Just as litigants seeking to enforce other constitutional rights are able to pursue 

litigation to protect their interests, crime victims can do the same. For instance, criminal 

defendants routinely assert constitutional claims, such as Fourth Amendment rights,226 Fifth 

Amendment rights,227 and Sixth Amendment rights. 228 Under the VRA, crime victims could do 

the same. 

No doubt, some of the means for victims to enforce their rights will be spelled out 

through implementing legislation. The CVRA, for example, contains a specific enforcement 

provision designed to provide accelerated review of crime victims' rights issues in both the trial 

and appellate courtS. 229 Similarly, state enactments have spelled out enforcement techniques. 

One obvious concern with the enforcement scheme is whether attorneys will be available 

for victims to assert their rights. No language in the Victims' Rights Amendment provides a 

basis for arguing that victims are entitled to counsel at state expense230 To help provide legal 

'" Mopp Y. Ohio, 367 U.S. 643 (1961). 

", Arizom v. Fulminonte, 499 U.S. 279 (1991). 

'" Gideon v. Woinwright, 372 U.S. 335 (1963). 

'" 18 u.se ~ 3771(d)(3) (2006). 

"" q: Gideon, 372 U.S. 335 (defendont's right to stote-paid cOllisel). 

43 
170 

representation to victims, implementing statutes might authorize prosecutors to assert rights on 

behalf of victims, as has been done in both federal and state enactments. 231 

... and no person accused (jf the conduct described in section 2 of this article may obtain 

any jiJrm of relief 

This provision simply insures that the VRA is used by those who need protection -

victims of crime, rather than those who commit crimes. Similarly provisions are found in state 

amendments. For example, Arizona has provided that a representative of a "victim" of a crime 

cannot include a person "in custody for an offense" or "the accused,,232 A comparable provision 

appears appropriate for the VRA. 

B. Section2 

For purposes of this article, a crime victim includes any person against whom the 

criminal (jffense is committed or who is directly and proximately harmed by the 

commission of an act, which, if committed hy a competent adult, would constitute 

(lennle. 

Obviously an important issue regarding a Viclims'Rights Amendment is who qualities as 

a victim. The VRA broadly detlnes the victim, by offering two different detlnitions-either of 

which is sutl'icient to confer victim status. 

The first of the two approaches is detlning a victim as including any person against 

whom the criminal offense is committed. This lallb'llage tracks lallb'llage in the Arizona 

Constitution, which detlnes a "victim" as a "person against whom the criminal otfense has been 

committed."m This language was also long used in the Federal Rules of Criminal Procedure, 

which until the passage of the CVRA defined a "victim" of a crime as one "against whom an 

'" See, e.g .. § 3771(d)(l); UTAH CODEA'IN § 77-38-9(6) (West, Westl1w through 2011 Legis. Sess.). 

'" Ariz. Const., ort. II. § 12.1(l2)(C) 

'" AIUZ. CoNST. ort. II, § 2.1(C). 

44 
171 

offense has been committed."234 Litigation under these provisions about the breadth of the term 

viclim has been rare. Presumably this is because there is an intuitive notion surrounding who had 

been victimized by an offense that resolves most questions. 

Under the Arizona amendment, the legislature was given the power to define these terms, 

which it did by limiting the phrase "criminal offense" to mean "conduct that gives a peace ofllcer 

or prosecutor probable cause to believe that ... [a] felony ... [or that a] misdemeanor involving 

physical injury, the threat of physical injury or a sexual offense [has occurred].,,235 A ruling by 

the Arizona Court of Appeals, however, invalidated that definition, concluding that the 

legislature had no power to restrict the scope of the rights. 236 Since then, Arizona has operated 

under an unlimited detlnition-without apparent difllculty. 

The second part of the two-pronged definition of victim is a person who is directly and 

proximately harmed by the commission of a crime. This definition follows the definition of 

victim found in the CVRA, which defines "victim" as a person "directly and proximately 

hanned" by a federal crime. 217 

The proximate limitation has occasionally lead to cases denying victim status to persons 

who clearly seemed to deserve such recognition A prime example is the Antrobus case, 

discussed earlier in this testimony.238 In that case, the district court concluded that a woman who 

had been gunned down by a murderer had not been "proximately" harmed by the illegal sale of 

the murder weapon. n9 Whatever the merits of this conclusion as a matter of interpreting the 

'" See FCD. R CRN. P. 32(f)(l) (2000) (amended 2008); see also FCD. R CRIM. P. 32 advisory eonlIluttee's note 

discusslng 2()()X amendments). -

235 ARI/. Rb:Y. STAr. A'i'i. § 13-H01(6)(a)-(b) (West Wesllaw lhrOlLgh 2012 Leb"s. Sess.), held unconstitutional hv 

Stale ex. rei. Thomas v. Klein, 214 Ari/, 205 (2007). 

2% State ex rei. ThOlTh1S v. Klein, 150 P.3d 778, 782 (Ariz. CI. App. 2007) C[Tlhe Legisloture does not have the 

authority to restrict rights created by the people through constitutiOl1:11 anlendment "). 

21' 18 U.S.c. § 3771(e) (2006) (emphasis added). 

~lR S'ee supra notes 73-82 and accompanying text. 

219 Uruted States v. Hunter. No. 2'07CR3070AK, 2008 WL 53125, at *5 (D. Utah 2008). 

45 
172 

CVRA, it makes little sense as a matter of public policy. The district judge should have heard 

the Antrobuses before imposing sentence240 And hopefully other courts will broadly interpret 

the term "proximately" to extend rights to those who most need them. It is interesting in this 

connection to note that a federal statute that has been in effect for many years, the Crime Control 

Act of 1990, has broadly defined "victim" as "a person that has suffered direct physical, 

emotional, or pecuniary harm as a result of the commission ofa crime.,,241 

One issue that Congress and the states might want to address in implementing lanb'llage 

to the VRA is whether victims of related crimes are covered. A typical example is this a rapist 

commits five rapes, but the prosecutor charges one, planning to call the other four victims only 

as witnesses. While the four are not I'iclims of the charged offense, fairness would suggest that 

they should be afforded victims' rights as well. In my state of Utah, we addressed this issue by 

allowing the court, in its discretion, to extend rights to victims of these related crimes. 242 An 

approach like this would make good sense in the implementing statutes to the VRA. 

Although some of the state amendments are specifically limited to natural persons,243 the 

Victims' Rights Amendment would-like other constitutional protections-extend to corporate 

entities that were crime victims. 244 The term person in the VRA is broad enough to include 

corporate entities. 

The Victims' Rights Amendment would also extend rights to victims in juvenile 

proceedings. The VRA extends rights to those directly harmed by the commission of an act, 

which, if committed by a competent adult, would constitute a crime. The need for such lanb'llage 

21U .')'ee Cassell, supra note 169, at 616-19. 

211 42 U.S.C.A. § 10607(e)(2) (Weslla" lllTOLLgh 2012 P.L 112-89) (emphasis added) 

'" See, e.g.. UTAH CODE M'I. ~ 77-38-2(1)(0) (West. Westlow through 2011 Legis. Sess.) (implementing UTAH 

C.oKST. art. I, ~ 28) 

~-n ,)'ee hi. 

,,, See Citizens United v. Fed. ElectionConuu'n, 130 S. Ct. 876 (2010) (First Amendment rights extend to corperate 

entities) 

46 
173 

stems from the fact that juveniles are not typically prosecuted for crimes but for delinquenciesin other words, they are not handled in the normal criminal justice process 24' From a victim's 

perspective, however, it makes little difference whether the robber was a nineteen-year-old 

committing a crime or a fifteen-year-old committing a delinquency. The VRA recognizes this 

fact by extending rights to victims in both adult criminal proceedings and juvenile delinquency 

proceedings. Many other victims' enactments have done the same thing. w, 

IV AN ILLUSTRAIION 01" A CASE WliliRl! Tlili AMENDMENT WOULD MAliliADll·liURl!NCE. 

I know that others will be providing important testimony to the Subcommittee about how 

the VRA would make an real world difference for crime victims across the country. But I wanted 

to offer one illustration of how, even in the federal system under the CVRA, statutory crime 

victims' rights are being subverted. I attempted to provide this testimony to the Subcommittee 

last year, but was unable to do so because I was unable to determine whether judicial sealing 

orders precluded me from infonning the Subcommittee what has happened247 Since then, a 

number of the documents involved in the case have been unsealed and entered into the public 

record. Sadly these documents and other public record information show that the U. S. 

Attorney's Office for the Eastern District of New York has not complied with important 

provisions in the MYRA and CYRA. The fact that the Office believes that it can ignore even a 

federal statute commanding that crime victims' receive rights provides one clear illustration of 

the need to elevate crime victims' protections to the constitutional level. 

e.g, Brian J. Wjl1ett, .Juvenile I,QW VS. Criminall.mv· /In ()vcl'view, 75 TEX. B.J. 116 (2012). 

See, e.g, Uniled Slales v. L.M .• 425 F. Supp. 2d 948 (N.D. Iowa 2(06) (conslruing the CVRA as e,lending lo 

juvenile cases. although only public proceedings in such cases). 

'" See Letter from Paul G. Cassell to Hon. Lamar Smith. Chairnm11, Conun. on the Judiciary (M1Y 10. 2012). 

reprillted in PROPOSING AN .A1,.·lENDklENT TO THE COKSTITlTIO)I OF THE Ut\TTED SVI.TES TO PROTECT THE RIGHTS OF 

CRlME VICTI~IS: HRKG BEFORE THE SUBCOMM. ON THE COKSTITUTIOK OF THE HOUSE Jl'DICIARY COMM .. Serial No. 

112-113 (Apr. 26. 2012). at p. 202 I discuss these circumstances at greater length below 

47 
174 

Factual Background a/the Doe Case 2-18 

The case involves a defendant who T will call "John Doe.,,249 Doe pled guilty in 1998 to 

racketeering for running a stock fraud that stole more than forty million dollars from victims.>5() 

Doe then provided unspecified cooperation to the Government. In 2004, he came up for 

sentencing. The U.S. Attorney's Oftice declined to provide the list of Doe's victims to the 

probation office, preventing the probation office from contacting the victims 25l As a result, the 

pre-sentence report did not include any restitution, even though a restitution order was 

"mandatory" under the Mandatory Victim Restitution Act. 252 In any event, when he was 

ultimately sentenced five years later in 2009, Doe escaped paying to his victims any restitution 

for the more than forty million dollars that he pilfered253 Doe's victims received no notice of the 

sentencing, even though the Crime Victims' Rights Act requires notice to victims of all public 

court hearings. 254 

Of course, Doe's 1999 conviction should have signaled the end of Doe's business career 

and created the possibility of restitution for the victims of his crimes Unfortunately, the 

21:--: All of the infoIDl..1tion recounted in this testimony comes [rom plLblic SOlLfces. For a general O\·ervie\v of the 

proceedings in the case. see the recentlY-lmsealed docket sheet for U.S. v. Doe. No. 98-CR-II01-01 (ED.N.Y) 

(docket entries from Dec. 3, 1998. to Mar. 27. 2013). 

21':1 The naIne o["Doe-- is no\\-' public record, [IS the judge presiding over the llk111er recently lillsealed it find the 

press 11:15 'videly discussed it. S'ee, e.g., Andrew Keshner, Judge Orders L-nsea/;ng ill US'. Cooperatioll Case, 

N.Y.L.J.. Mm. 14.2013; see also United St2tes v. John Doe, No. 98-CR-II01-01, doc. #101. at I (government 

motion to put Doc's name into the public record in the case). Out of an abundance of cautioll, hO'VCVCI, I do not 

recount the name in this tcstimollv 

cso Petn. for Writ of Certiorari at 4-6. Roc v. Un.ited States, No. 12-112 (U.S. Supreme COUlt May 10,2012) 

Id. al7. 

Id. 

Id. al22. See Uniled Slales v. John Doe, No. 98-CR-ll 01-01, doc. 35, al4 (available on PACER); Pelilion for 

Rehearing at 5-<i. Roe v. United St2tes. No. 12-112 (U.S. Supreme Court Apr. 19.2013). Cf. United St2tes v. John 

Doe. No. 98-CR-II01-0 I. doc. 137 at 23-24 n.5 (Doe agrees that MYRA applied at Ius sentencing but contends lI"'t 

identification of 'victims was impractical). 

'" Petition for Rehearing at 1-6. Roe v. Uruted St2tes. No. 12-112 (Apr. 19.2013) (puhlic record pleading awaiting 

docketing in the Supreme Court). 

48 
175 

Government concealed what it was doing by keeping the entire case under unlawful seal. 255 And 

Doe wasted little time in resuming his old tricks and defrauding new victims 256 By 2002, he had 

infiltrated a real estate venture and used it to launder tens of millions of dollars, skim millions 

more in cash, and once again defraud his investors and partners. 257 An attorney, who I will call 

"Richard Roe," represents many of Doe's victims. While preparing a civil RICO complaint 

against Doe, Roe received - unsolicited - documents from a whistleblower at Doe's company 

that provided extensive information about Doe's earlier crimes 258 Those documents included a 

presentence report ("PSR") from the 1998 case, which revealed that Doe was hiding his previous 

conviction from his partners in the new firm259 In May 2010, Roe filed the RICO complaint on 

behalf of Doe's victims in U.S. District Court for the Southern District of New York, with 

portions of the PSR attached as an exhibit"('O Instead of taking steps to help Doe's victims 

recover for their losses, two district courts quickly swung into action to squelch any public 

reference to the earlier criminal proceedings and to punish Roe for disclosing evidence of Doe's 

crimes 261 The S.D.NY court sealed the civil RICO complaint four days after Roe filed it262 

And the E.D.N.Y court in which Doe was secretly prosecuted issued a temporary restraining 

order barring Roe from disseminating the PSR and other documents - even though Roe was not a 

party to that case, and even though the court could not identify any actual sealing or other order 

255 As to ,,'hether the case '''<1S ever actually sealed, it remains unclear ,,'hether the district judge ever actually 

entered <l formal sealing order. Thus, ,,,ithout <l sealing order, it is more accurate to say not th1t the case has been 

"under seal" but rather that it has been "hidden." Petn. for Writ ofC.ertiomri at I. Roe Y. United States. No. 12-112 

(Mar. 5,2013); see also Petition for Reheming at 1-6, Roc v. Urilted States, No. 12-112 (Apr. 19,2013) (discussing 

unceltaintv about scaled nature of the case). 

'5<~ Reply in Support ofPetll. for Writ ofCertiormi at I, Roc v. Urilted States, No. 12-112 (Mar. 5,2013) 25'"7 1

d. 

2Sl-: Id. 

2S':l Id. 

~6n Id. 

'61 !d .. see also Petition for Rehearing at 1-6. Roe v. United States, No. 12-112 (Apr. 19.2013). 

"" Replv in Support ofPetn. for Writ ofCertiomri at 2, Roe v. United States, No. 12-112 (M1r. 5, 2013): see also 

Jolm Doe's Memo. of L1w in Support of Order Directing Return of Sealed and Confidential Materials, U.S. v Doe, 

No. ll-CR-ll01-ILG (May 18.2010) (doc. #51) 

49 
176 

that applied to Roe 263 The court subsequently converted the TRO into a permanent injunction, 

and the Second Circuit aftirmed. 264 

Roe sought review in the U.S. Supreme Court by filing a petition for a writ of certiorari, 

raising both First Amendment ar~\ues and crime victims' rights arguments 265 The National 

Organization for Victim Assistance (NOVA) tiled an amicus brie( highlighting the fact the 

petition presented important issues about crime victims' rights - specifically the fact that the 

Government believed it could avoid compliance with crime victims' rights statutes through the 

simply expedient of hiding the case from the victims and other members of the public. 2

(,(' The 

Solicitor General filed an opposition to the certiorari petition, studiously avoiding any discussion 

of whether the Government had complied with the crime victims' rights statute267 The Supreme 

Court recently denied review. The net result is that victims of Doe's crimes, including a number 

of Holocaust survivors, have yet to recover any of their lost funds 268 And Doe continues to live 

well off of money that he stole from his victims 269 

Violation of the MandatOlJi T'ictim Restitution Act. 

The Doe case illustrates how, without constitutional protection, even a federal statute can 

be insufficient to full assure that crime victims receive their rights. In 1996, Congress enacted a 

statute - the Mandatory Victim Restitution Act (MVRA) -- to b'llarantee that victims of certain 

263 Reply in Support of Petn. [or Writ ofCerliornri at 2, Roe v. United States, No. 12-112 (M'lT. 5, 2013). 

"" Roe v. U.S., 428 Fed.Appx.60, 2011 WL 2559016 (2d Cir. 20ll). I assisted Mr. Roe as legal cOlUlSel for part of 

the proceedings before the Second Circuit 

~6-'; Roc ,,,as represented by hyo 'ilelY capable appellate attonlcys, Richard E. Lcnlcf, Esq., and Paul Clement, fonner 

Solicitor General of the United States. 

'C;, BricfAmiclis Cliriae of the National Organization for Victim Asst., Roc v. U.S., No. 12-112 (Aug. 27,2012). 

Along \vlth Professor Douglas Beloor of Le\vis & Clark La\'\.' School and Professor Amy Wildennuth of the 

University of Ulah College of La\\-, I served as cOLLTIsel on the brief. 

26' (Redacted) Brief for the U.S. in Opposilion, Roe ,. U.S., No. 12-112 (Feb. 2(13). The only commenllhallhe 

Solicitor Genernlmade on this question was that the Second Circuit had not reached the issues belm" and therefore, 

in the vie\\' of the Solicitor General, the Supreme Court should not reach the issue ld. at 17. 

"OR Reply in Support ofPetn. for Writ of Certiorari at 12, Roe v. United States, No. 12-112 (Mm. 5, 2013); Petition 

for Rehearing at 5-6. Roe v. United States. No. 12-112 (Apr. 19,2013). 

'69 Reply in Support ofPetn. for Writ ofCertiornri at 24 (citing Petn. for Writ ofCertiormi at 8). 

50 
177 

crimes would always receive restitution. 270 As the title indicates, the specific purpose of the 

MVRA was to make restitution "mandatory." 

Congress enacted the MVRA specifically to eliminate any judicial discretion to decline to 

award restitution. The MYRA amended the Victim and Witness Protection Act of 1982 (VWPA), 

which had provided for restitution to be ordered in the court's discretion. Congress was 

concerned that leaving restitution to the good graces of prosecutors and judges resulted in few 

victims recovering their losses. As the legislative history explains, "Unfortunately, . while 

significant strides have been made since 1982 toward a more victim-centered justice system, 

much progress remains to be made in the area of victim restitution.,,271 Congress noted that 

despite the VWPA, "federal courts ordered restitution in only 20.2 percent of criminal cases. 272 

To fix the problem of inadequate restitution to victims, Congress made restitution for 

certain offenses - including the racketeering crime at issue in Doe 273 - mandatory. As the 

Supreme Court recently explained: 

Amending an older provision that left restitution to the sentencing judge's 

discretion, the statute before us (entitled "The Mandatory Victims Restitution Act 

of 1996") says" Illjotwithstallding any other provision of /al1', when sentencing a 

defendant convicted of [a specified] offense ... , the court shall order ... that the 

defendant make restitution to the victim of the offense" § 3663A(a)(1) (emphasis 

added); cf § 3663(a)( I) (stating that a court "may" order restitution when 

sentencing defendants convicted of other specified crimes). The Act goes on to 

provide that restitution shall be ordered in the "full amount of each victim's 

losses" and "without consideration of the economic circumstances of the 

defendant" § 3664(t)(l)(A)274 

CO" Pub. L. 1O~-132, Titlc II, § 204(,1), ApI: 4, 1996, 110 Stat. 1227, codified at18 U.S.c. § 3663A 

"I S. Rep. 1O~-179 at 13, 104th Cong., 1st Sess. (Dec. 6,1995). 

(eiling United Statcs Sentcncing COlllmission Annual Report 1994, table 22) 

The MYRA cO\'ers crimes of VIolence and any olTense against property under Title 18, including crimes of fTIlLLd 

and deceit 18 U.S.c. § 3663A(c)(I)(A). The Second Cirellit (along "ith many other courts) has held that RICO 

olTenses, including "pLLlllp and dLlmp" stock frauds, are covered by the MYRA. Sec, e.g. United ",'tates v. Re~fler. 

446 F3d M (2d Cir. 2006) (noting that MYRA applies to "pump and dump" stock frauds and collecting supporting 

cases) 

'" Dolan>: United States, 130 S.C!. 2533, 2539 (2010) (emphasis in original). Congress did allow courts to 

dispense "'ith restitution in cases ,,,here it ,,,mIld be impracticable to order, due either to the large mmiber of ' victims 

or the difficulty of calculating restitution. 18 USc. § 3663A(c)(3). Notbing in the certiorari petition suggests any 

51 
178 

To help implement restitution for crime victims, the federal judiciary has also acted. The 

Federal Rules of Criminal Procedure provide that the pre-sentence report "must" contain 

"infonnation that assesses any fif1ancial, social, psychological, and medical impact on any 

victim.,,275 And specifically with regard to cases where the law provides for restitution, the presentence report "must" contain "infonnation sutllcient for a restitution order,,276 

It is ancient law that Congress has the power to fix the sentence for federal crimes, 277 

Indeed, it is well settled that "Congress has the power to define criminal punishments without 

giving the courts any sentencing discretion.,,278 Tn the f)oe case, the US. Attorney's Otlice for 

the Eastern District of New York decided that it can override the Congress' command that 

restitution is mandatory in the name of securing cooperation from Doe - and then conceal what it 

is doing from public scrutiny It did this first by refusing to provide victim information to the 

probation office, in contravention of the Federal Rules of Criminal Procedure. And then it asked 

for - and received from the district court - a sentence without restitution. Tn doing so, the US. 

Attorney's Office violated the MYRA 

While the MVRA mandates restitution in cases such as Doe, it is important to understand 

that the MVRA does not require disclosure of the names of contidential infonnants. Rather, the 

MYRA only requires that convicted defendants pay full restitution, Any legitimate Government 

interest in keeping the defendant's name contidential does not interfere with requiring that 

defendant to pay restitution to his victims. Restitution payments can, of course, be made through 

intennediaries, such as the US. Attorney's Office or the Probation Office, which could screen 

such findings were made here. Nor docs it seem plausible that such findings could have bccllllladc. since Doc's coderendanLs ,,,,ere apparently ordered Lo pay restitution \vithOLLt difficulty See Cert. Petn. at 5-0 

2'5 Fed. R, Crim. P, 32(d)(2)(8) (emphasis added), 

276 Fed, R Crim P, 32(d)(2)(D), 

'7' United States>: ffiltberge/; 18 U.s. (5 Wheat.) 76 (1820), 

'" C//apman v. United States, 500 U.S, 453, 467 (1991) (citing Ex Parte United States, 242 U.S, 27 (1916)) 

52 
179 

out any locating information about a defendant. The Government is also free to pursue its 

interests through other means, such as placing an informant into the witness protection 

program,279 or by limiting disclosure of only the fact of his cooperation 

The one thing the MYRA clearly precludes, however, is the Government buying 

cooperation with crime victims' money. The Government is not free to tell a bank robber, for 

example, that he can keep his loot bag if he will testify in other cases. And in the Doe case, the 

u.s. Attorney's Oftice was not free to tell Doe that he could keep millions of dollars that he had 

fraudulently obtained from crime victims rather than requiring him to pay the money back. 2XO 

Violation of the Crime Victim :\. Rights Act. 

The U.S. Attorney's Otlice's violations of victims' rights in the !Joe case are not confined 

to the MYRA. Unfortunately, the Oftice also disregarded another important crime victims' rights 

statute: The Crime Victim's Rights Act (CYRA).281 

As discussed earlier,282 in 2004 Congress passed the CVRA because it found that, in case 

after case, "victims, and their families, were ignored, cast aside, and treated as non-participants 

in a critical event in their lives. They were kept in the dark by prosecutors too busy to care 

enough, by judges focused on defendant's rights, and by a court system that simply did not have 

279 5,'ee 18 U.S.c. ~ 3521 et seq. The Witness ProlectiOll Program slatutes provide \'\.'ays in ""hich civil jLLdgment 

creditors can pursue actions against persons in the \\'itlless protection prob'Tam . .')'ee 18 U.S.c. § 3523. 

2~U The GovemmenL actions not only violated the MYRA, bLLt also another imporlant prO\·isioll of la,,,,: 18 U.S.C. § 

1963(0)(3) This provision requires a court to order 0 convicted RICO defeml1nt to forfeit "ony property 

constituting. or derived from. nlly proceeds which the person obtained, directly or indirectly from racketeering 

activity" 

'" 18 D.Se ~ 3771. 

~s~ /)'ee Part II.B., supra. 

53 
180 

a place for them."283 To avoid having crime victims "kept in the dark," Congress enacted a bill 

of rights for crime victims extending them rights throughout the criminal justice process284 

In Doe, the U.S. Attorney's Office violated the CVRA at the 2009 sentencing of John 

Doe, if not much earlier in the process, by keeping crime victims in the dark. 285 It is not clear 

from the record whether Doe was sentenced in public or not. It appears to be the position of the 

U.S Attorney's Office is that "Doe was sentenced in public, though under the name Doe . 

. ,,286 If Doe truly was sentenced in public, then his sentencing was a "public court proceeding" 

and Doe's crime victims were entitled to (among other rights) accurate and timely notice of that 

proceeding, as well as notice of their right to make a statement at sentencing. 287 So far as 

appears in the record, the US. Attorney's Office never gave the victims that notice of any public 

hearing. 2" 

On the other hand, even assuming for sake of arb'llment that Doe was proper! y sentenced 

in secret,2S9 then other provisions of the CVRA would have been in play. At a minimum, the 

US Attorney's Office would have been obligated to notify the victims in this case of the rights 

that they possessed under the CVRA290 Moreover, the US. Attorney's Office would have been 

obligated to provide crime victims' rights that were not connected to public proceedings, such as 

2" 150 CO"". REC. 4262 (Apr. 22. 2(04) (statement o[Se11. Kyl). See generallvHon. lonKyl et al.. On the Il")ngsof 

Tlu';r Angels: The ,')'cott Campbell, S'tephanie Roper, rrt'ru~v Preston, L01farlla GUlis, and Nila L.wm O-ime r7ct;rns' 

Right, Act, 9 LE\\lS & CL:\RKL. REV 581 (2005). 

2" 18 U.S.c. ~ 3771 

~85 While JoIn; Doc ,,,as indicted before the CVRA's 2004 enactment, he ,,,as sentenced 011 October 23, 2009 - :five 

years after the Act ,,,as in place. At his sentencing, the CVRA's procedures plainly applied. See [1niled Simes v: 

r:he/'ha/'d. 525 F.3d 175. 177 (2d Cir. 20(8) (rejecting derendant's E~ Post Facto challenge to application or the 

CVRA to a sentencing for a crime cOTIlmitled before the Act's passage). 

2~6 Petn. for Writ of Certl0rari at 9, Roe v. Unlted States. No. 12-112 (Mar. 5, 20B); Petltl011 for Rehearing at 5-6, 

Roe v. United States. No. 12-112 (Apr. 19.2013). 

2S' 18 u.se ~ 3771(a)(2) & (4). 

2RR Petition for Rehearing at 5-6. Roe v. United States. No. 12-112 (Apr. 19. 2013). 

~S9 This issue of closed sentencing proceedings is a complicated one that I do not address here. 

290 See 18 U.S.c. ~ 377I(c)(1). 

54 
181 

the right to confer with prosecutors and the right to receive full restitution. 291 Here again, nothing 

in the record shows that the victims received any of these rights - or, indeed, that the US. 

Attorney's Office gave even a second's thought to crime victims' rights. 292 

To be clear, it is not the case that crime victims' rights require public disclosure of 

everything in the criminal justice process. Tn some situations, secrecy can serve important 

interests, including the interests of crime victims.2'!1 And strategies no doubt exist for 

accommodating both crime victims' interests in knowing what is happening in the criminal 

justice process and the Government's legitimate need for secrecy.294 The limited point here is 

that federal prosecutors cannot use an interest in securing cooperation as a basis for disregarding 

the CVRA. 

In the Doe case, the U.S. Attorney's Office's willingness to ignore the CVRA has a 

"business as usual" feel to it - suggesting that many other victims are having their rights violated 

by the Government though the simple expedient of hiding the case. Since the US. Attorney's 

Office apparently believes that it can ignore federal statutes, one way to insure compliance with 

victims' rights enactments is to elevate them to the status of constitutional rights. 

This Subcommittee Should Ask rhe Us. Attorney s Office to Explain Irs Acrions 

This Committee may wish to consider sending an inquiry to the US. Attorney's Office 

for the Eastern District of New York to explain how it has handled crime victims' rights in the 

Doe case. Sadly it is my conclusion that the U.S. Attorney's Office is hindering the public and 

"I 18 U.S.c. § 3771(0)(5) & (6). 

292 Petilion for Rehearing al5-6. Roe v. Uniled Slales, No. 12-112 (Apr. 19, 2(13). 

293 .')'ee Tim Reagan & George Cort, Fed.1LLdlclal eLf., Sealed Cases in Federal Courts 19-20 (2009) (disCLlssillg 

sealing or cases Lo protect victims or se.\.ual olTellses) (a\·ailable at http:// 

''''Yw.fic.gov/puhlic!pdf.nsf:looknp/sea1cnfc.pdf/$file/sealcafc). /)'ee also Globe ;VcH'spaper Co. v: ,)'Ilperior Court 

for the Cauntv a/NO/folk, 457 U.S. 596, 608 (1981) CA trial court can determine on a case-by-case basis whether 

closure is necessary to protect the welfare of a minor victim" during a sex offense trial). 

'" See Brief An1i~us Curiae of the Natioml Orgaruz1tionfor Victim Asst. atI4-15, Roe v. U.S .. No. 12-112 (Aug. 

27,2012). 

55 
182 

this Subcommittee from learning how it treated crime victims in this case. I set out a chronology 

of what has happened so that the Subcommittee and other can reach their own conclusion on 

these issues. 2')5 

When I was preparing testimony for the Subcommittee last year, I was aware from public 

and other sources of the /Joe case and the fact that the U.S. Attorney's Otllce had failed to obtain 

restitution for crime victims because it wanted cooperation from a defendant 1 thought that this 

would be an important illustration of the need for a constitutional amendment The case, 

however, had been subject to extensive litigation concerning the existence and scope of various 

sealing orders. 

Because T wished to communicate my infonnation to this Subcommittee while fully 

complying with court orders, I prepared draft testimony outlining my concerns about the Doe 

case. On April 9, 2012, I sent a full draft of my proposed testimony to the U.S. Attorney's Office 

for the Eastern District of New York, asking it to confirm that the testimony was accurate and in 

compliance with any applicable sealing orders. I further asked, ifit did transgress a sealing order, 

for instruction on how the testimony could be redacted or made more general to avoid 

compromising any legitimate government interest reflected in the sealing order. 

On April 19,2012, the Office responded that, in its view, my testimony was not accurate 

and that "[ w]e are unable to comment further because the case is sealed." The Otlice further 

responded that it believed my testimony would violate applicable sealing orders, particularly an 

order entered by the Second Circuit on March 28, 2011 in the Roe case. Specifically, the Office 

stated: "While it is unclear what the source of your proposed testimony regarding the Roe case 

is, to the extent that you rely on any of the documents that were or remain the subject of 

~9-'; The following i11fofl11o:1tio11 comes from correspondence ,,,itll the identified parties, copies of which I retain at my 

office ot the University ofUtoh 

56 
183 

litigation in Roe, those documents are under seal. We believe it would violate the relevant 

sealing orders for you to reveal in any way, and in any forum, those documents or their 

contents." The Office also noted that the Second Circuit order had appointed Judge Cogan of the 

Eastern District of New York for the purpose of ensuring compliance with court sealing orders. 

The Otllce attached the Second Circuit order to its letter and otfered to answer any further 

questions that I had. 

I then received permission trom the U.S. Attorney's Office to contact the General 

Counsel's Otllce for the University of Utah to receive legal advice on how to deliver the 

substance of my testimony. 

On April 21, 2012, John Morris, the General Counsel for the University of Utah, sent a 

letter to Judge Cogan, writing on my behalf to determine whether my proposed testimony would 

violate any judicial sealing orders and, if a portion of his testimony violates any sealing order, 

whether the testimony could be made more general or redacted so that Congress is made aware 

of the legal issue that has arisen in this case without compromising the identity of any 

cooperating individual and thereby bringing it into compliance with the court's sealing orders. 

In addition, two days later, on April 23, 2012, I took up the Office's offer to answer 

questions and sent six additional questions to the Office. Specifically, my questions were: 

1. You indicate that you are unable to "comment further" about the 

underlying criminal case because it is under seal. Are you able to at least indicate 

whether the Government believes that it complied with all provisions of the Crime 

Victims' Rights Act, 18 USc. § 3771, and with all provisions of any applicable 

restitution statute, e.g, 18 U.S.c. § 3663 and 3663A - in other words, are you 

able to indicate whether the Government fully complied with the law? 

2. You sent me a copy of the Second Circuit's June 29, 2011, decision, 

remanding to the district court for (inter alia) a ruling on the government's 

unsealing motion filed March 17, 2011. Can you advise as to whether a ruling has 

been reached on that unsealing motion, which has been pending for more than a 

year? 

57 
184 

3. Would any of my testimony be permissible if the Government's 

unsealing motion were granted? 

4. If parts of my testimony would not be pennissible even if the 

Government's unsealing motion were granted, is the Government willing to file 

an additional motion allowing unsealing to the very limited extent necessary to 

pennit me to deliver my testimony? 

5. If my testimony is not currently permissible under the sealing motion 

and the Government is not willing to file an additional unsealing motion, is the 

Govemment willing to advise me how to comply with its view of the sealing 

orders it has obtained, by me either making my testimony more general or 

redacting a part of my current testimony? In other words, is there a way for 

Congress to have the substance of my concern without jeopardizing your need for 

secrecy about the name of the informant? I thought I had struck this balance 

already, but apparently you disagree. Can you help me strike that balance? 

6. Is there some way for the Government to assist me to make my 

testimony more accurate. You assert that it is inaccurate, but then refuse to 

provide any further information. Can you, for example, at least identify which 

sentence in my proposed testimony is inaccurate? 

On April 24, 2012, the U.S. Attorney's OtIke sent a letter to Mr. Morris indicating that it 

"was appropriate under the circumstances" for me to have inquired of Judge Cogan, through 

counsel, about whether his proposed testimony would violate any sealing orders. The Office 

further stated that "we believe the best course at this juncture is to await further guidance from 

Judge Cogan" on the request. The Office also indicated that it preferred to deal through legal 

counsel on the subject of any additional questions. 

On April 25, 2012, Mr. Monis wrote on my behalf to repeat the six questions for me. On 

April 25, 2012, the Office sent an e-mail in which it stated that the previous letter would serve as 

the response to the questions for "the time being." 

On May 7,2012, Mr Morris received a letter from Judge Cogan in which he stated "1 do 

not believe it would be appropriate to furnish what would in effect be an advisory opinion as to 

the interpretation of the injunctive orders entered by Judge Glasser and the Second Circuit." 

On May 9,2012, Mr. Monis sent a letter to the US. Attorney's Office, pointing out Judge 

Cogan's decision not to provide further clarification and seeking additional assistance from the 

58 
185 

Office in answering the six questions I had asked and in helping me provide testimony that 

would not violate any judicial sealing orders but would communicate the substance of my 

concern to Congress. 

On May 9, 2012, the U.S. Attorney's Office sent the following terse reply: "We have 

received your letter from earlier today. In connection with the matter to which your letter refers, 

the government complied in all aspects with the law We are unable to answer your other 

questions as doing so would require us either to speculate or to comment on matters that have 

been sealed by the United States Court of Appeals for the Second Circuit and the United States 

District Court for the Eastern District of New York." 

Tn light of all this was unable to provide testimony on the subject to the Subcommittee 

last year. On May 10, 2012, I sent a letter to the Subcommittee informing it what had 

happened. 296 

This year T was again invited to provide testimony to the subcommittee, including a 

specific request that I provide infonnation (if possible) about the Doe case. 297 Accordingly, in 

light of this request, on April 11, 2013, Mr. Morris sent a letter on my behalf to the U.S. 

Attorney's Office. The letter included a full draft of my testimony and requested that the Office 

advise if the testimony was covered by any sealing order, particularly in light of the fact that 

many documents in the J)oe case had recently been unsealed. The letter also requested the 

Office's assistance in confinning whether or not the recounting of the facts in the Doe case was 

accurate. 

'90 See Letter from Paul G. Cassell to Hon. Lamar Smith, Chairnm11, Conun. on the Judiciary (M1Y 10, 2012), 

reprillted in PROPOSING AN A1..'lENDklENT TO THE COKSTITlTIO)I OF THE Ut\TTED SVI.TES TO PROTECT THE RIGHTS OF 

CRlME VICTI~IS: HRKG BEFORE THE SUBCOMM. ON THE COKSTITUTIOK OF THE HOUSE Jl'DICIARY COMM .. Serial No. 

112-113 (Apr. 26, 2012), at p. 202. I discuss these circumstances at greater length below 

'" Letter from Trent Franks, United States Congress, to Professor Paul G. Cassell (Apr. 5,2013) 

59 
186 

On April 18, 2013, the Office sent back a short (two-sentence) letter to Mr. Moms, 

indicating that it could not give any advice on my testimony. This response was at odds with the 

response that the Office had sent the previous year (in the April 19,2012 letter), in which at that 

time the Office claimed that delivering my testimony would have been (at that time) in violation 

of the Second Circuit's sealing order and was inaccurate. Now the Otllce claims that it cannot 

advise on these same subjects. As a result, 1 have made my own determination that 1 can provide 

this information to the Subcommittee because it all relies on public record information, as 

indicated by the extensive footnotes attached to the testimony. I also believe that it is accurate, 

in view of the US. Attorney's Office's unwillingness to contest any of the facts discussed. 

For all the reasons outlined above, it continues to be my view that the US. Attorney's 

Office has not complied with crime victims' rights statutes in this case - specifically the CVRA 

and the MYRA. And more important given the subject on this hearing, based on this fact, it 

continues to be my view that it is more desirable now than ever to elevate the prominence of 

crime victims' rights by placing them into the Constitution 

The Subcommittee should, however, have not merely my thoughts on this case but rather 

full information about it in reaching its own conclusions. Accordingly, the Subcommittee may 

wish to send an inquiry to the US. Attorney's Office asking it to provide information on how it 

has handled crime victims' rights in this case - information that could then tonn part of the 

Subcommittee's record. 

The urgency of the having the US. Attorney's Office explain itself only increases given 

the fact that the CVRA violations are not confined to earlier events, but are on-going. Every day 

that the Office withholds notice from the victims in this case about the continuing proceedings 

that are occurring in this case is a day in which the Office is violating the CVRA. The 

60 
187 

Subcommittee should inquire into what appears to be on-going violations of important federal 

crime victims' statutes. 

V CONCLUSION 

As explained in this testimony, H.J. Res. 40, the proposed Victims' Rights Amendment, 

draws upon a considerable body of crime victims' rights enactments, at both the state and federal 

levels. Many of the provisions in the VRA are drawn word-for-word from these earlier 

enactments, particularly the federal CVRA. In recent years, a body of case law has developed 

surrounding these provisions. This testimony has attempted to demonstrate how these 

precedents provide a sound basis for interpreting the scope and meaning of the Victims' Rights 

Amendment. This testimony has also tried to provide a real world example of how even crime 

victims' rights protected by federal statute can be ignored - and are continuing to be ignored. 

The existence of precedents interpreting crime victims' provisions may prove important. 

Tn the past, some legal scholars have opposed a Victims' Rights Amendment, claiming that it 

would somehow be unworkable or lead to dire consequences. Such opposition tracks general 

opposition to victims' rights reforms, even though the real-world experience with the refonns is 

quite positive. For example, one careful scholar in the field of victim impact statements, 

Professor Edna Erez, comprehensively reviewed the relevant empirical literature and concluded 

that the actual experience with victim participatory rights "suggests that allowing victims' input 

into sentencing decisions does not raise practical problems or serious challenges from the 

defense. Yet there is a persistent belief to the contrary, particularly among legal scholars and 

professionals."m Erez attributed the differing views of the social scientists (who had actually 

collected data on the programs in action) and the legal scholars primarily to "the socialization of 

~9R Edn.:1 Erez, Victim Part;c;pat;on in S'elltenc;ng: Alld the Debate Goes On ... , 3 J::'-JT'L REv OF VICTI\,fOLOGY 17. 

28 (1994): accord Deborah P. Kelly & Edna Erez. Victim Part;c;pat;on ;1/ the Criminal Justice S\wtem, in VICTI\,fS 

OF CIUME 231. 241 (Robert C. Davis ej a!. eds .. 2d ed. 1997). 

61 
188 

the latter group in a legal culture and structure that do not recognize the victim as a legitimate 

party in criminal proceedings.,,299 

The developing case law under federal and state victims' rights enactments may help 

change that socialization, leading legal scholars and criminal justice practitioners to generally 

accept a role for crime victims. Crime victims' rights are now clearly established throughout the 

country (even if the implementation of these rights is uneven and still leaves something to be 

desired, even in federal cases). In tracing the lallb'llage used in the Victims' Rights Amendment 

to those earlier enactments, this testimony may help lay to rest an argument that is sometimes 

advanced against a crime victims' rights amendment: that courts will have to guess at the 

meaning of its provisions. Any such argument would be at odds with the experience in federal 

and state courts over the last several decades, in which sensible constructions have been given to 

victims' rights protections. If a Victims' Rights Amendment were to be adopted in this country, 

there is every reason to believe that courts would construe it in the same commonsensical way, 

avoiding undue burdens on the nation's criminal justice systems while helping to protect the 

varied and legitimate interests of crime victims. 

~99 Erez, slfpra note 242, at 29; see also Cassell, supra note 3, at 533-34; Edna Erez & Leigh Roeger, The Ejjixt oj 

Victim Impact /)'tatements on /)'entendng Patterlls and Outcomes: The Australian Experience, 23 1. CRIr-.L JUSTICE 

363.375 (1995) 

62 
189 

Remarks of Jan Withers 

National President, Mothers Against Drunk Driving 

Subcommittee on the Constitution and Civil Justice 

Tn Support of the Victims Rights Amendment to the Constitution 

April 25, 2013 

Chairman Franks and Ranking Member Nadler, thank you for the opportunity to submit 

testimony in support of the Victims Rights Amendment to the U.S. Constitution. T represent tens 

of thousands of families who are victims of the 100 percent preventable crime of drunk driving. 

You may know that in 2011, almost 10,000 people were killed in America and over 300,000 

were injured as a result of a drunk driver. As one of the largest victim service organizations in 

the country, we served over 60,000 DUI victims in 2012 or a victim every eight minutes. They 

come to us for help when they feel the most helpless. 

Unfortunately, all too often we see victims re-victimized by ajustice system set up to protect the 

offender at all costs. Victims of crimes such as drunk driving are often denied basic rights, like 

being informed of court proceedings and developments in their case. They can also be denied the 

right to be present in the courtroom or to make a victim impact statement. 

I know the pain of this reality all too well. After my daughter Alisa was killed by a drunk driver, 

my family and T poured our energy into the court proceedings. This was how we could best 

handle the loss of Alisa and our grief My family wanted to speak on her behalf because she was 

unable to do so herself. Tragically, because the judge agreed to a last minute change of date for 

the sentencing hearing, T missed my chance to speak for Alisa. 

I was furious and devastated. After the pain of losing my daughter, 1 was again victimized by the 

criminal justice system. My children felt the same. They called it "justice for the criminal 

only." This tragedy haunts them to this day. The irony is that the sentence had already been 

agreed upon at the plea hearing. To hear us would have in no way changed the outcome, but to 

deny us our right to be present and heard was yet another victimization. 

I am not alone. The reality is that the U.S Constitution contains a number of provisions 

protecting the criminal defendant and not one protecting the victim of his or her alleged crime. 

That is why MADD is proud to stand with other victim's rights groups and to urge Congress to 

pass a Constitutional Amendment providing for crime victims' rights. There are currently 

statutes in every state protecting crime victims' rights. However, only a defendant's rights are 

protected by the Constitution. Consequently, far too often, the victims' rights are trumped by 

the offender's rights. Only a Constitutional amendment would even playing field. 

Therefore, MADD respectfully requests that you pass the Victim's Rights Amendment and 

advance this worthy Constitutional amendment. 

Thank you for your consideration. 
190 

Testimony on the US Constitutional Amendment for Victims Rights 

April 2013 

By 

Susan S. Russell, M.A. 

Good Day, 

Thank you for the opportunity to submit testimony on the Constitutional Amendment for 

Victims Rights. My name is Susan Russell. I live and have resided in Warren, Vermont 

for 22 years. However, on Jmle 19, 1992, I became more than just a resident of Vennont, 

reportable the safest state in the nation, when I became the victim of a hOlTendous 

kidnapping, sexual assault and attempted murder. Although my perpetrator was a 

stranger to me, he was from my small and IUral community of approximately 2,500 

This stranger kidnapped me, raped me, and beat me, fracturing my nose and several facial 

bones. He then drove me to a remote wildemess area, where he took a tire iron and 

fractured my skull in three places. I, now, have a one and half inch dent in my head that 

serves as a reminder, although I will never ever forget this hOlTific experience. This man 

then left me to die, discarding my body into the woods, but I survived. Luckily I awoke 

hours later and managed to crawl a 1/10 of a mile to where 5 teenagers had camped for 

the night. Nothing short of a miracle can explain why I survived and am alive today. 

And those these are my words and my stOlY; I speak for many victims who cannot speak 

for one reason or another. It takes a tremendous amount of courage to tell you my story, 

but I do so, because as a victimlsmvivor I can speak to you with the experience and 

knowledge of being a victim. 
191 

My perpetrator was caught 4 days after my attack and then the long arduous process of 

being thrown into the unknown and confusing criminal justice system began. At the time 

of my interaction with the criminal justice system there was very little in place regarding 

victims'rights. And although many changes have been made victims/survivors are still 

being denied their rights and have no way to enforce their rights. I want to tal<e this 

opportunity to highlight some of the major key points that if there was a Constitutional 

Amendment perhaps I would not expelience the continued injustices of om climinal 

justice system. 

The right to just and timely claims to restitution from the offender. 

Due to physical injmies I sustained as a result of my offender's actions, I suffered severe 

financial loss even with medical insmance and Victim's Compensation. I was out of 

work for almost a year. And yet, the judge did not order restitution. I was told that my 

offender had no money and/or property. However, a few years ago I was told that my 

offender was working in prison mal<ing $7.25 an hr, yet I would never obtain any 

restitution due to the fact there was none ordered. Furthermore, I was told that if I 

wanted to try and claim restitution I would have to return to comt and by retuming to 

court, I could jeopardize the current sentence my offender is cUITently serving. A 

Constitutional Amendment would ensme that restitution was ordered. 

The right to reasonable and timely notice of any release or escape ofthe accused: 

In Nov. 1992 my offender managed to escape from a secme comtroom fled across the 

street and was apprehended by a friend of mine who happened to be attending the 

2 
192 

hearing. I fIrst heard about my offender's escape through my friend and the newspaper. 

Had a Constitutional Amendment been in place perhaps I would have leamed about this 

through a more timely notification process and would not have had to read about it on the 

front page of the next morning's newspaper. 

The right to be heard at sentencing: 

In my case I was persuaded by the State Attomey to accept a plea agreement. I was told 

although the evidence against my offender was high and there was an 80 % change of 

winning the case that there was a 20 % chance oflosing the case. I did not want to see 

this man set free under any circmnstances and chose not to take the risk even though it 

was only 20 %. The terms of the plea agreement was 25-50 years. The Parole Board 

strongly recommended 50 years to life. In the end the Judge stated that "the mitigating 

circumstances outweighed the aggravating circumstances" and sentenced him to 20-30 

yrs. While this may seem like many years, it is not when the tmth is that he will only 

serve 1/3 of his sentence. 

The fact is this offender will "Max out" in April 2015 having served 23 years and having 

been denied parole. He has not once participated in any treatment programs and 

continues to this day to fIle appeals with VT Attomey General's offIce. He will be 

brought back to VT, as he is currently housed in a Kentucky jail and be released in VT 

with no one, nor agency to supelvise him. He will be released, perhaps with no place to 

live, and no job etc ... His only requirement will be to register with the VT Sex Offender 

Registry. 
193 

In 1992, Vermont did not have a Victims Bill of Rights and I recall working hard to 

advocate for the passage ofVennont's Victims Bill of Rights in 1996. However, while it 

has been said that crime victims are assured their rights due to these state and other 

federal laws, I can tell you from my personal and professional experiences as a 

victim/survivor and a victim advocate for many years these laws are not sufficiently 

consistent, comprehensive or authoritative, nor do they hold the system, agencies, 

accountable and therefore do not safeguard our rights. There are countless stories where 

these laws have failed to provide adequate and neceSSaLY protection for the rights of 

victims as these state statutOlY rights CaLl be changed at the whims of the legislative 

majority and they do not provide adequate means to hold these systems and agencies 

accomltable when it fails to provide victim's these rights. 

The Right to Notification and Information: 

The following are two personal examples that have occurred to me in which my rights 

were denied. I received several letters from the VT Department of Corrections during 

the past decade that were not timely, nor accurate and misleading. I recall it took several 

days and many phone calls before I finally received the right infonnation. VT Title 13: 

Section 5305: Information concerning release state that "victims have a right to 30 

days notification of parole board hearings". Yet, these letters came with less than 15 

days to the hearing. 

Here is another exatnple in which my right to 30 day notification and accurate 

infonnation has been denied. On August 1" 2010 while I was out of town the VT 

Department of COlTections VINES automatic notification system begaLl calling our house 

4 
194 

every 30 minutes to inform us of a parole board hearing on August 11, 2010. We had 

problems in that it filled om answel1ng machine and my husband could not tum off the 

system using the pin number. Due to the fact it was a Sunday we could not reach anyone 

to stop the calls. And my 91 year old father who lived with us at the time, had a "life 

line" which uses this phone number and this could have compromised his life line alert, 

had been needed. My husband commented that he felt like he was being "terr0l1zed by 

these phone calls." However, what was most disturbing is that once again the 

infonnation was inaccmate. There was no scheduled parole board hearing that year and 

the next parole board heal1ng he would have been eligible for was August 2011. 

Summary 

These state or federal laws are unable to match the constitutionally protected rights of the 

offenders. State Constitutions live in the shadow of the U.S. Constitution. The result is 

that we crime victim/survivors remain and will remain second-class citizens in our 

nation's system of justice until an Amendment such as thus is implemented. It is the 

only law that carries the weight and accountability needed to create a more 

balanced and equal justice system for all. Rights without Remedy are merely Rhetoric 

These rights that I stand before and ask for are human rights, which all American 

Citizens deserve, a right to fundamental faliness in a justice system. Criminal defendants 

have almost 2 dozen separate constitutional rights 15 of these are provided by 

amendments to the US Constitution. Constitutional amendments such as enfranchising 

newly free slaves and the 11ght for women to vote were all changes for the better, ending 

5 
195 

the exclusion of those who deserve and paid a heavty price to be inclusive. The Crime 

Victims' Rights Amendment will bling a balance to the system by giving clime victims 

the right to be informed, present, heard at critical stages throughout their case and it will 

duly consider the victim's just and timely claims to restitution from the offender. 

There is considerable support for this amendment. State constitutional amendments have 

won overwhehning approval in 33 states; The Constitution belongs to all of us and 

therefore I ask you to support and assist the people who have suffered and have lost 

the most, the crime victims of this country. Thank you. 

6 
196 

Keynote Address 

John W. Gillis 

Director, Office for Victims of Crime 

North Carolina Victim Assistance Network's (NCVAN) 

Seventeenth Annual Training Conference 

Wednesday, August 20, 2003 

Thank you and good afternoon. 

I am honored to be part of the North Carolina Victim 

Assistance Network's Seventeenth Annual Training 

Conference, and to join such a wonderful group of survivors, 

crime victim advocates, law enforcement officials, allied 

professionals, and victim service providers from across the 

state. Each one of you brings a commitment to your work and a 

unique perspective that makes you a valuable asset to victim 

services. On behalf of the Office for Victims of Crime, the U.S. 

Department of Justice, and for victims across the country, and 

especially for those victims whose voices have been stilled, 

thank you for being here and for making victim advocacy a 

priority in your life and work. I want to say a special thank you 

to Donna Pygott, the Executive Director of NCVAN; Cathy 

Purvis, the President of NCVAN; and Lisa Correll, Conference 
197 

Planner, for inviting me to join you. I also want to congratulate 

the North Carolina Victim Assistance Network for its 

continued efforts over the years to help North Carolina's crime 

victims, and for organizing such a successful conference. 

On a personal note, I'm pleased to stand before you today, as 

the Director of the Office for Victims of Crime, and as the firstever victim of a violent crime to lead the Federal Government's 

chief office for addressing crime victim issues. While my 

appointment by President George W. Bush in September of 

2001 has been the high point in my own personal journey from 

victim to advocate, like most victims, I would return to a simpler 

life to have my daughter back. Her murder 23 years ago has 

directed many of my professional and personal choices. I feel 

privileged to lead avc. But I recognize that this is a 

tremendous responsibility. It's a responsibility to our Nation's 

victims of homicide, domestic violence, physical and sexual 

assault, robbery and other crimes, and to those who serve 

victims. I have a personal commitment beyond my 

responsibilities to this position and I assure you, you have a 

partner and a friend in Washington. 

2 
198 

Under my leadership, ove's guiding principle has been 

Putting Victims First. It expresses my vision that ove's 

responsibility should be first and foremost to the people it was 

created to serve. No one understands better than victims the 

pain and injustice caused by crime and violence. No one is in a 

better position to tell us where the weaknesses are in our 

system. My experience as a law enforcement officer, parent of 

a murdered child, victim advocate, homicide survivor, father, 

and American citizen is reflected in the new direction ove is 

now moving. 

At the time of my daughter's murder, I was involved in 

investigating gang activity as a member of the Los Angeles 

Police Department. Louarna was targeted because the murder 

of an officer's daughter would earn her killer special recognition 

from his gang. Working on the streets of Los Angeles, I had 

seen my share of violence and encountered many victims. But 

there was nothing that could have prepared me for this lifealtering event. Like many of you who may have been 

victimized, I experienced what it feels like to wake up each 

morning in a nightmare and hope that at some point this terrible 

dream would end. I know what it's like to feel helpless, angry, 

confused, and bitter. Justice seemed far away and almost 

meaningless. I can still recall the expressions of sympathy, 

3 
199 

grand statements offered by loved ones and acquaintancessome heartfelt, some hinting of blame, some just repetitious 

sayings that are suppose to bring comfort. I found like many 

victims, I couldn't and wouldn't be comforted. There wasn't 

much that was helpful. I also experienced the personal and 

financial impact that violent crime exacts on its victims. But I 

also recognized that other people with similar experiences 

could understand this senselessness. This painful and very 

personal experience gave me a unique understanding of the 

hardships victims face. 

So after 26 years of service, I retired from the LAPD and 

looked for opportunities to reach out to victims and to change 

how victims are treated. Each opportunity led to another and 

another and then, ultimately to my appointment by President 

Bush as ave's Director. This position has given me the 

opportunity to truly make a difference in the lives of crime 

victims. 

It has taken 4 decades to get victims issues to the forefront of 

our nation, at the cost of many lost and broken lives. 

But I know each one of you knows that there is still a lot of work 

to do. True, we can celebrate tremendous statutory gains over 

the years. The tally of victims' rights laws has surpassed 

4 
200 

27,000, and every state has passed a victims' bill of rights. Yet, 

as we speak, 17 states still lack constitutional amendments for 

crime victims and the 33 states that do have such amendments 

have constructed them differently. These differences pose 

serious law enforcement challenges particularly in cases 

involving more than one state. 

Further, there is no uniformity in the implementation of these 

statutes. Proponents of the proposed Victims' Rights 

Amendment believe that the only remedy is to amend the U.S. 

Constitution, a recommendation made 20 years ago by 

President Ronald Reagan's task force on crime. President 

Bush endorsed the bipartisan amendment which is currently 

before Congress that will provide victims of violent crime 

certain specific rights, such as timely notice of public 

proceedings involving offenders and an opportunity to be heard 

at sentencing. Last year, the President declared, in reference 

to this Amendment, "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!" I too believe that it must change, and I am proud to be 

working for an administration that recognizes this fact. Attorney 

General John Ashcroft, following the President's lead, put it 

candidly when he said: "Government can do more than it has 
201 

done in the past. We can offer victims a new guarantee of 

inclusion in the process of justice." 

In recent months, I have met with lawyers and others in the 

legal field to discuss the victims' rights issue. I have also been 

hearing from victims about the positive and negative aspects of 

their experiences with the criminal justice system. In a number 

of cases, as in my case as well, victims of violent crime 

continue to indicate that the negative aspects of the criminal 

justice process compounded their victimization. I am alarmed 

to learn that the lack of enforcement of existing victims' rights 

laws around the country jeopardizes the safety of many victims. 

Victims continue to be intimidated and harassed by offenders 

or those awaiting trial. Lenient bail and early releases should 

include input from victims. There is so much to do on so many 

fronts. A large number of these laws exist today thanks to the 

grassroots efforts and courage of committed men and women, 

many of whom were victims themselves. To build on their 

efforts, I approved a landmark project, the National Crime 

Victim Law Institute, through which private attorneys will 

provide pro bono legal assistance to victims asserting their 

statutory and constitutional rights. This project is one step on a 

very long road to enforcing current victims' rights. 

6 
202 

In 2002, I launched the Victims' Rights Education Project. This 

project focuses on the development of informational and 

educational materials explaining the legal rights available to 

crime victims. Before we can successfully implement victims' 

rights laws, victims must be aware of what their rights are at 

the state and federal levels. 

We are no longer operating in a vacuum in Washington, DC. 

We continue to improve communication to hear directly from 

victims and put their needs and concerns at the center of 

OVC's initiatives. I have been convening a series of Victims 

Roundtable Discussions around the country. These 

discussions have allowed me to hear directly from victims, 

survivors, and those dedicated to serving them. Roundtable 

participants share with me the fears, needs, and frustrations 

they experience as they struggle to mend their lives after being 

victimized. The first roundtable was held in San Diego, 

California, in January 2002. Since then, I have had the 

opportunity to meet with more than 200 victims from more than 

30 states and Indian Country. We are learning a great deal 

from victims' experiences to improve our services. ove will 

develop training videos on victims' needs to educate my staff, 

state assistance and compensation administrators, service 

providers, law enforcement, and other allied professionals. 

7 
203 

And I cannot fail to mention the importance of small 

grassroots organizations that provide services to victims. 

Grassroots organizations are the pioneers of the victims' 

movement and much more. Today, many organizations are 

managed by victims and survivors. These organizations 

provide invaluable support to victims who need it, and do so 

with no help from Washington. In my early work, when I just 

started helping other victims, I remember spending large sums 

of out-of-pocket money for newsletters, postage, stationery, 

etc., for which there was no reimbursement. Many of you in this 

room know exactly what I mean. It was hard! And sometimes 

discouraging, but it was what I felt I should do. So last year, I 

started a grant program called Helping Outreach Programs to 

Expand, or HOPE. This project gives small organizations an 

opportunity to apply for up to $5,000 to help them continue 

assisting victims. To date, ove has approved 142 grassroots 

organizations under this project. 

Another priority of mine is to foster the creation of 

collaborative alliances for the benefit of all crime victims. 

Such alliances have proven effective in past incidents of 

terrorism and mass victimization. 

8 
204 

Underlying this priority is the recognition that victim advocates 

and service providers cannot serve all and do all. It is simply 

unreasonable to think otherwise. The needs and challenges of 

our field make it imperative that we join forces with our allies in 

criminal justice and other disciplines. In addition, it is a fact that 

many crime victims never see a trained victim service provider. 

In many cases, it is to a law enforcement officer, social worker, 

medical professional, or mental health provider that a victim 

tells his or her story. Therefore, we must enlist the aid of these 

professionals. 

To this end, we've started working closely with the faith 

community, supporting chaplaincy training and seminary 

programs and projects that create networks of victim 

assistance and faith-based programs. In general, people in 

crisis turn to the clergy far more often than any other group or 

resource. I am sure that many of you here today can identify 

with the feelings of powerlessness that often grip victims in the 

face of violent crime. Many victims find solace in spirituality. In 

contrast, crime leads other victims to question their spiritual 

framework, their view of the world, of themselves, and of life 

itself. We at ave fully appreciate the critical role the faith 

community plays in helping crime victims cope with their 

victimization and ultimately regain a sense of meaning in their 

9 
205 

lives. Spiritual leaders may not know what to do when 

approached by a victim for support or special victim services. 

We have addressed this by developing programs and tools that 

will help. 

We are also supporting programs for law enforcement 

agencies to bolster their response to victims. As you know, a 

victim's first and often only encounter with the criminal justice 

system is through a law enforcement officer. Having served as 

one for 26 years, I can attest to the tremendous need for 

training for law enforcement. Theirs is a difficult job and 

sometimes their desire to get the offender or make an arrest 

can lead to little sensitivity when questioning victims. 

As ove has been working to put victims first, we have also had 

to take steps to ensure that this vision rings true for ALL 

victims-not just some victims. I have directed ove to 

advance special programs to reach and support victim 

populations that have been traditionally not served or 

underserved through traditional service delivery channels. 

These populations include victims who are American Indian, 

disabled, elderly, limited-English speakers, and victims located 

in geographically isolated rural areas. I have made it an 

especially high priority to help alleviate barriers to the delivery 

10 
206 

of much-needed victim services. My hope is that the terms not 

served and underserved will eventually be 'underused' in 

reference to crime victims. 

In closing, I would like to thank once again the North Carolina 

Victim Assistance Network for including me in this 

conference. I want to also recognize each one of you. Thank 

you for your courageous commitment. It is inspiring, and has 

been the very fuel for the progress we have witnessed in our 

field in the last 30 years. In April of this year, the 2003 National 

Crime Victims' Rights Week took place and 7 individuals were 

recognized and honored for their achievements and 

contributions. I would also like to acknowledge three former 

Crime Victims' Rights Week awardees who are native North 

Carolinians and who have also been invited to participate in 

this conference event: Augustus A. "Dick" Adams, Chairman, 

North Carolina Victim Compensation Commission (1995 

recipient); Mr. Harlie Wilson, (1999 recipient) Note: Mr. Wilson 

has been invited to the Conference, however, he is 80 years 

old and believed to be bedridden.; and Lynne Ward Crout, 

VictimlWitness Coordinator, U.S. Attorney's Office for the 

Western District of North Carolina (2002 recipient). 

11 
207 

I want to express my commitment to you as I urge you to 

continue your work for victims of crime and violence. Know that 

ove will pursue initiatives, provide leadership, and support to 

you and your colleagues around the country. Our Nation's 

recent and painful experiences with tragedies of terror, mass 

violence, and war have made us more aware and sensitive to 

the plight and horror that crime victims nationwide endure daily. 

Today, it takes courage to live, to care, and to dream. As 

advocates, service providers, and allied professionals, we are 

all challenged to be courageous and continue to fight the good 

fight. The victims for whom we do so deserve our best as they 

face the worst. Let's keep fighting to meet their needs, to 

protect their rights, to give them hope, and to safeguard their 

dignity. Let's fulfill the promise. 

Thank you, and enjoy the conference. 

12 
208 

Janice K. Brewer 

""""'" 

Of ce of the Governor 

r 

I 

__ • ARlZOtUt.C_~S' RlGHTSWEEM' , '1.7 __ .... _01 ____ ...",""""_ ...... _.. __ -_ WlEREoI.5."""''''"'''' 

.... _-... _...-....-, __ ''" .. ..-. .. Iho\<_ .... _ """"- ___ . pII,..:oI_ ........ -.ond~ __ .. __ ....... __ b~ 

_ ... .,.....01 ___ '.... 

........ W"fJ!E______ AS, _. __ 20"....oI_-. .... __ """'_ .. poa_._. ...... ..-.... .. _~ond __ _ ~EAS, ... oppIow<I ... _ .... __ .... ___ .. __...<fIIN'._ ... _ ..... _","",,",,","_01 _""""""'"" ..................... __ """"""--,-.,..;gnoo----... _- _ 

....... b\t_...._ .... """ .. _01 __ ...... __ ........ 1hoy_ ... _Ihoy-. ... _IfIOr_ ........ _""' __ _ ~...,." ... ... _QIrRo_'IIOI .--... .. -.-- ~ ... _ ... ... -.g-- ...,., __ ........ b_ .... --.-.;. ... _ ..... 

... 

_1IEAS ~-~""_"' 

.. --:- ___ b~"'_"_""'U,S, 

~, .... --.--~-.... ~""--... -,--, .. ~ .... ... -. ... r!gtIII" • ..-o,ow ....... """"" __ or ... __ ... __ ......... ... 

__ _ ...... .... _ 

.-._IO .. _""" ... ___ -....o/ .. _..-.u._ .• ~"""ono!~,_,.. ... __ ."""'" ... _ ... ____ ...... ""'oIIon ........ .,_.Io:IImo, .... 

~ WHE_._c....._·~_~ ... _ .... "' ... _ .... _ ..,.... _ _ ,ood "''-'"''' .. __ ... .....-.. ... __ IO_.,._S<oIo~1D 

.. Wl<fflf'Al' "*"- . ... SIO«O ... .. M><>oo~~IO«*I """'~.,.- ........... ____ Ihoy-.. --~--- ,_~ __ ..,..,.,.... _tvo\qI>oI.O_ .... _ .. ___ OI __ .... -..,....",.,cn-no_ 

"'"W _ _ rno:AU~,~_K._.~ ..... _oI_, .. n...bo' __ ',·V,20'~ .. 

• ARIZONA CRIME VICTIMS' RIGHTS WEEK ' 

.. "" ..... _"".'-_ ... ..,-_...-.. 

9;:~:e~ G~ UO ~ 

..... ~~-"'--..... -" ... _,"' ____ ..... _ ..... 0-

~*-- ---
209 

AprilS, 2013 

The Hono ~b e Trent ~nks 

House of Repre:l4!ntatives 

2435 hybum Building 

Washington, DC 20515 

Dear Cangre5Smen Franks and Costa: 

on&l Plstrlct Attorneys AlIMXllltion 

99 Canal Center Plaza, SUite 330, Nexaoorla, VA 2231~ 

703.5'19.9222 (0) . 703.836.3195 (f) 

www.ooaa.org 

The Honorable Jjm Costa 

House of Representatives 

1314 l ongworth House Office Building 

Washington, DC 20515 

Oil beha'f of the NatIonal District Attornevs Assoclalloll, the oldest and largest orgallizatiOIl 

represel'ltil'lg the Interests of America's 39,000 stale and local prosecutors, we wish \0 express 

our strMg support fo r proposing an amendment to the U.S. COl'lstltu!ioJ'l to protect the rights of 

crime victims (VIctims' Rights Amendment). 

InclUSion of victims' rights in our U.S. Constitution will ensure that crime victims will be treall!li 

with fairness, dignity and respm within our criminal Justice system and thilt, within that 

system, they will be afforded needl!li and meaningful rlghlS, IrlCluding the opportunity to 

participate at all critical stages of their Cilses. 

Innmuch as America's prosecutors are Ihe staurlChest advoca tes forvtctlms within our criminal 

justice :l'fstem. we art! proud to advocate on their behalf within the halls of Congress. We call 

upon the Congress to pass the amendment and the states to ratify it. 

The National District Atlorneys Assoc;lallo1'1 appreciates all of your hard work and support for 

America's victims of crime and your ongolngsuPPD[t for state and local law enforcemel'lt. 

Thank you for your continued support for AlTleric~'s slate ana Ioca! prosecutors. 

Sincerely, 

Mlch~el Wright 

Presldent 

Scott 8urns 

Executive Director 
210 

25 MAItl..'1I20!J 

Re. He>us<: J"'''I ResolullOn [ocCnme Vicllm~' Rillh" -~ ... -- DcarHonoc.blc Congn:ssman Frank! .nd Honor""l. Coollrc.SIIl.n Cosla, 

On behalf oflhe N.llona l Org.ni,,IIlicn for VICllm Assl$lHOCC (NOVA) Bo.1rd of 0'1«101'5. IIIe 

NOVA Slarr. tho Icn~ orlhousands5U-onJ! NOVA nc,,,or\.:. and million. 0[0 .. "'0 nellm5. \\'e 

ardenlly .nd full)' suppon yonr HII\ISO!-JOIOI RcsoiutJOn reprtS<lIlIng an Amcndmcnll\l the Unllcd 

Slntcs Coru;lilulioo for enme "ocums- nshl~ 

The pro(lOSl:d COOSIIiUlio(\.1 Amend",cru repr<:SCnls Ihe Ideals codifocd m Ihc i>reamble of the 

UnrlCd Slnl •• COOSllllllloo, - ,i" Order 10 fom) a mo<cpcrfccl Union. t>labli~h JI1SI;cc. inSUR' 

domeslic T"'nGur il~ , pro\'idc for llIe con"non defc"" •. prun.olC the gene,.1 Weifare.;IIld SlXure 

!he BICS!IlIl!l" ofLibeny 1o ourrohcs and our P()Slcri ' .. 

We.re a 0311011 ["",nded 0" the Rule "fL.w. Our NOVA Stjpponcrs .nd COt'Slolwn(S fimrl~' 

bctle.·c Ihc proposed Conslilu(J0I1.1 Amcudmcm repr~nlS ond further .[f"m. lhe mahcn3bi<! 

n!;h1S onif., II!>.:rt] .nd Ihe pursml oJhoppmcsl The prOllOSCd COOShlulion~1 AmcndmcllI 

"!lcuhlles "'hal mOS! Alncric:urs \\'rO"IlI~ 'S!umc 10 be tl\l<\ Ib~1 \ ,elil", oferm.e b~.c proU:Cllon! 

in IhcUS CCOWMion foImihu 10 the ~c~uscd. 

To dUIC, Ihlrt~ ·three ofthc [i"~ Uni!(.d SI~1C5 hOl'C somc form of\ ktn"s' nllhl5 In thell YI81e 

conSlllulions. This i\I!1eCIS a "lSI m~j()fi y pcnpctl"'C of~ 'r 'mportoncc IIIId ,~Iuc , Al t10csanrc 

Im'c. llIe", IS 110 Co',siSlen") ror the .,,"'" (ili/en. neros.lhe ,'urieus Siaies 800 .IOle "omlllu~on31 

amend","",!; and 5IalulCS ho,'c !JOly "';mo"slr~led 3 poloh".",," al'P'""ch Ie "hOI should be dcdan:d 

f,,11 Qrld prolC'clCd "GhIS forall Amcnenns 

Some .rgue Ih~1 we don 'I need. COIl.>lIlulloI,al Amendment rcplCSClllS since "CUlIlS' IlghlS arc: 

found In mon:- SlalC constitullons, f!O',,'CWt. ,iclino. In sc,'cnleen stales ha, e l'I!"IuaU) no ")clims' 

nglrlS :ur<l 1'f01"'Hiuns Case I." deln(onstr.lCJ; the dearth of opt,ons those ,",cli",s ha, c and Ihe 

G",dly Ihey ~p;:ncn<:C Dlthe IIl nds ofthqushce~ slem More<I1Cf, e,'cn in StDtes ,,"h robtlSl 

'''limS· righlS, 1h.'>St reform~ h~,e pr,l.en 'nDd.:qu~le 10 chQrlge Ihe c"llu", of ll\eJ"Slie<: S}61cm ,n 

"'~s tho! proIe<:1 .nd .... n.". the nglrlS uf",el,nlS ,,,,d 31. natiuMllel't:l 

ProndlOg ")Cllm5 (ong-o,.erd<lc cons\i,,~,onal ngh~~ \\'ill nOII~k< a"iI."nghls from Ihe .. cused. 

The I\\'cnly-three conSlllul!QIl.1 r'!;hlll of the ~tcuscd "ill rc",~,n \V~ simpl)' SC\:k 10 re<:llfy Ilral 

lhere ore c~""nll) no dghlS for .icIln(l; ofcnme. 

Rhonda Bamer 

f'ft;sJdcnl, NOVA Bo~rd ofO,rccion' 

510 King Str .... t. SuRe "2~' Al ... andrla . VA 223t~ - 703-535.6682 - www.lrynova,org 
211 

BUA O Df- I~ tfOA' 

.... \ .. --,-- _.-.... 

.---,."., 

--.... do_ 

-.. ---..... _.- --~­

f_MOo-., 

_A.".,.. ----M.D 

~- -----

-,,,. h .. _ 

---

UECUTlYi DIUCfU 

~-

March H, 201l 

The HOODfablt T,nol Fran~~ 

Unum Sl'les Ilou"" of epr~nl~m es 

Washon!!'.".., DC :!05 1 S-OlOl 

'I'he NaI;ooal Cenl~r fot V;Cl;m, of Crime ,swOring I" e.~pr('>~ OOr 1,110011 .... ppo<'l 

roc YIlUr propo..ed Vi",;",,' Ri l!lu. COOSI;IU1;OO3I AmeOldnlem The /'J.,;ooal 

Cent",. is, "oopmlil (ltgl'n,,,!,,;oo th,t .d"(!I'aH'S for victims' righl$, trai ns 

professi<l!1.t1s ""00 ",ork ",jlh "ict;ms. and serves asa truSled 5OUr(cof;nfom,a1J0Il 

on "kl'ms' i~t"S, 0", missiOll;S III fOllle l nali,mal commilmem II) help yjCli ~ 

of crim"rebllild Ih .. , I;\'c~ The "al; OIlal Center bel;eve> Ihal crime ';<I;m ju.tice 

as "" i"'tS"'1 p"" orlhe rriminal just;~ 'Y$1rn1 

y oor prOpo$lll wo~ld !IlI.ranlec IhM cvC1)' viellm of crime has O'e right 10 <<<IlI;O 

blIsic legal rishlS I nci"d;ns Ihe right to rca500uhle OOIiee publ;c ",oc:....dingo 

~llted to theolTarue; the right nOi to be tluded from !uclt proceedin!!'. the ri!lllt 

10 be heard II ""'tain criminal Ju~lic .. pr(K'ttding>: alT""tin!!. 1."'r "ghIS.r.d 

inlL""SlS. !lIe riYII U! roc~inll s f,ee: from Il nreasonabl~ delay, Ihe ril!ht II> be 

informoo of the ",l~as.e or~ al'" t>f'lhelcCU.oo. the fight II> ha, e thdf .. fl:ly 

~onsi de ro:d, and t~"e right to restitution 1'b ,~ ~mer.dmenl " w id also Bi'''' ,',rums 

Ih ~ I~gal Sl.ndiol! to .""" tOO5e right> in eoun 

\\'h;!e 1"1!"1 ngll .. for crime \';et;"' •• ,.., already provided by state eon>l;tutio",,1 

am .... dmenls in l? Slates. and by 5tl tul e In all Slates and It the fl.'derallt\'d, th_ 

rigllts",,), in "m.ll!th and $C~ lncorponuion of these righl! into l"" United 

S1at~s Coosorul;crn ;1 ;""porIani 10 en'II'. their filII protl:Cllon Enshrininl! crime 

,ietims' righl' In our natiOll' ( t"r.dalncntal Ilw will .100 pfO\'ide th.t 8ny crime 

victim any w~et,,;n Ihe OOII ntl)' ~n ""P«llh~ $Ime basic level or"'cl;ms' right' 

We applaud yoo (0, .\pOOsOOng this importMt mU\lUe. and fill' yoo, IUPp!>l1 for 

,";er;m. oferimc.. We u'ge Y"" tollca~u~ tojoin you ;n pII~sing this mus." e 

Sincerely, 

--uu:.;L-----;;{ 

Ma; Fernandez 
212 

f 

niiiJUSTICE 

_ FELlOWSHIP. 

CeM.02·2<; ~m 

bHI_.Ie .. noltr/JIQfm.O'1 

641SO ~I\>e,,"'" P.rt. ... ~ 

U .... c!owM, Vl'llnlolO17!; 

..... w b!1II!:'" kMtbFA9" 

Aprll14, 20B 

,O~ IMMEDIATE RELEM{ 

JUSTICE fElLOWSHIP WILL EN DORSE VICTIMS' RIGHTS AMENDMENT ON CAPITOL Hill 

(la'15downe, VA) Justice Fellowship President Cra ig O!!Roche lod~y endorsed th~ Victims' Rights 

Amelldmenr, Which would pro'o'lde I~t il crime ~icllm shall have r1ghl5 10 reasonable n.o\i(e of, and slJ~1I 

not be e~duded from, public proceeding;s related \0 the offe n~ by which tlley were affected-as well as 

rights to be Mard at any release, plea, or sentencing. 

On Thursday, Aprll2Slh, 2013, justice FE:llowship's senior Policy Advisor, Heath1!r R1ce-Mlnui, will join 

Congrewnan Trelll Franh (II-All, Congressman Jim Costa (O-CA), and Congressm,1r\ Ed Royce (II-CAl at 

a press conference prior to the ConstitUl,ioo and Civil JU!llee Subcommittee's hearing on lhe Victlm5' 

flights Amendmenl. Rice-Minus will address whV JusUee fellowship believes that this amenament will 

advanc@JusUce. fellQW!hlp's 8~ls to both respect victims .nd transform offenders. 

In SUppOfl of this amendment OeRoch@!itiited, "When our Justice !yslem cenfronts Ihe rt'illity !hal 

crlm@ll.no! Justanoffense ;tgalnsttheflatebuta8alnst real ~ople, onlv then wlil l/letlms, offenders-, 

and our communlll@sberestored. As this amendment moves forward and the lal18uage Is d@baled,we 

welcome Ih@OPPOflUnltyl0!t1i1feourlnsishtonhowlobt-staclva/'1Ce vietims' standing based on our 

e~jrerlen ce to Improve the justice system is i whole." 

Thursday's press confere/'1Ce IS at 10:00 ll.m. OIl The House Triil~le ~Dutsld e southeast (orner of Capitol 

building. Washington, D.C.). 

... 
213 

f 

Statement of Judiciary Chairman Bob Goodlatte 

Subcommittee on the Constitution and Civil Justice 

H. J. Res. 40, the "Victims' Rights Amendment" 

April 25, 2013 

Today, the Subcommittee on the Constitution and Civil Justice convenes to hear 

testimony concerning H.J. Res. 40, the Victims' Rights Amendment to the United States 

Constitution. The purpose of the victims' rights amendment is to ensure that the important rights 

of crime victims are protected. 

Today's hearing is particularly significant because it coincides with National Crime 

Victims' Rights week where communities throughout the country raise awareness for victims' 

rights while also honoring crime victims and those that advocate on their behalf I would like to 

thank Chairman Franks for introducing the Victims' Rights Amendment this week, and for his 

dedicated attention to this issue. 

Countless Americans are victims of crime each year. These victims are ordinary 

Americans who each day are struggling to overcome the fear and loss caused by the acts of 

criminals. Even now, victims in communities across the United States are working to mend the 

recent wounds caused by evil acts in places like Boston, Newtown, Aurora and elsewhere. This 

hearing provides an opportunity for this Committee to detennine what should be done to better 

serve the needs of crime victims. 

Congress has passed several acts that have given protection to crime victims, including: 

the Victim and Witness Protection Act; the Victims of Crime Act of 1984; the Victims' Rights 

and Restitution Act of 1990; the Violent Crime Control and Law Enforcement Act of 1994; the 

Antiterrorism and Effective Death Penalty Act of 1996; and the Victims' Rights Clarification 

Act of 1997. 

In 2004, the Crime Victims' Rights Act or CVRA was enacted as the first federal law to 

provide crime victims in federal criminal cases with a set of enforceable rights. The CVRA's 

purpose was to safeguard justice for crime victims while preserving the constitutional rights of 

the accused. According to some advocates, scholars, and crime victims, however, our federal 

crime victims' rights laws have proved ineffective in providing victims with adequate 

protections. 

Crime victims must be afforded the dignity and respect they deserve in our criminal 

justice system. My hope is that this hearing will bring further awareness regarding crime victims' 

rights, and will infonn this committee about ways to ensure that crime victims are treated in the 

best possible manner. 

Again, I thank Chairman Franks, and look forward to the witnesses' testimony today. 

### 
214 

SUPPLEMENT TO TESTIMONY 

OF 

WILLIAM G. MONTGOMERY 

MARICOPA COUNTY ATIORNEY 

BEFORE THE CONSTITUTION SUBCOMMITIEE 

COMMITIEE ON THE JUDICIARY 

UNITED STATES HOUSE OF REPRESENTATIVES 

IN SUPPORT OF 

H. J. RES. 40 

VICTIMS' RIGHTS AMENDMENT 
215 

Dear Chairman Franks and Distinguished Members, 

Pursuant to questions posed to me following my verbal testimony and those iielded by 

other witnesses, I offer the following regarding proposed protections for rights to 

restitution and to proceedings free from unreasonable delay. 

RESTITUTION 

Restitution is defined by Black's Law Dictionary, 9

th Ed. 2009, as the "full or partial 

compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but 

ordered as part of a criminal sentence or as a condition of probation." H.J. Res. 40 

defines victim as a "person against whom the criminal oiTense is committed or who is 

directly and proximately harmed by the commission of an act, which, if committed by a 

competent adult, would constitute a crime." Accordingly, restitution can only be ordered 

where a criminal offense is committed again.st someone. Therefore, not every crime, 

such as a criminal citation for speeding, permits an award of restitution. Arizona courts 

have dealt with this particular issue in considering whether a conviction for leaving the 

scene of an accident, even an accident caused by the defendant, occurred. "The criminal 

offense of leaving the scene of an injury accident did not result in the aggravation of 

injuries sustained in the underlying accident. All of the injuries for which the state seeks 

restitution were caused by Martinez' violation of A.R.S. § 28-754(A), a civil traffic 

offense." Slale ex reI. McDougall v. Superior ('ourl Tn & For ellly. of Maricopa, 186 

Ariz. 218, 220, 920 P.2d 784, 786 (Cl. App. 1996). 

Federal courts conduct a similar analysis incorporating language used to define a victim 

under the CVRA "Tn making [a restitution] determination, we must (I) look to the 

offense of conviction, based solely on facts reflected in the jury verdict or admitted by the 

defendant; and then (2) detennine, based on those facts, whether any person or persons 

were "directly and proximately harmed as a result of the commission of [that] Federal 

otl(~nse." Atl. ,,",'tates Cast Iron l'ipe Co., 612 F.Supp.2d at 536 (collecting cases stating 

that this is the methodology used by courts in making this determination)." Tn re 

McNulty, 597 F.3d 344, 351 (6th Cir. 2010) In reviewing whether McNulty was due 

restitution, the court noted, "[tJhe alleged harm to McNulty stemmed from his firing for 

refusing to participate in the conspiracy and his "blackballing" from employment with 

packaged-ice companies until he stopped working with the government in exposing the 

conspiracy." Id. at 352. The court concluded that, even if McNulty suffered the harms 

as set forth, "they are not criminal in nature, nor is there any evidence that they are 

normally associated with the crime of antitrust conspiracy." Id. Consequently, no 

restitution was awarded as McNulty was not a "victim" for purposes of restitution. 

2 
216 

PROCEEDINGS FREE FROM UNREASONABLE DELAY 

A crime victim's right to proceedings free from unreasonable delay do not cont1ict with a 

defendant's right to a speedy trial, nor do they implicate a defendant's right to a fair trial. 

The basic understanding of a defendant's right to a speedy trial overlaps with many of the 

same concerns a victim has to be free from unreasonable delay. For the Defendant, as 

discussed in United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 

627 (1966), "[t]his guarantee is an important safeguard to prevent undue and oppressive 

incarceration prior to trial, to minimize anxiety and concern accompanying public 

accusation and to limit the possibilities that long delay will impair the ability of an 

accused to defend himself" Ewell, 383 U.S. at 120, 86 S.Ct. at 776. Likewise, a crime 

victim seeks to minimize anxiety over the uncertainty of the trial process and concern 

over a long delay impairing the ability of a case to be fairly tried. Nonetheless, "[a] 

requirement of unreasonable speed would have a deleterious effect both upon the rights 

of the accused and upon the ability of society to protect itself" Id. Finally, "[t]he delay 

must not be purposeful or oppressive." Id. (internal quotations and citation omitted). 

Tn fact, whenever defendants seeks to assert issues that may delay a trial, they are 

creating a conflict for themselves which must be reconciled since "the demands of due 

process and the requirement of a speedy trial cont1ict" in those instances. United States 

v . .lones, 524 F.2d 834, 850 (D.C. Cir. 1975) (internal alteration and citation omitted). As 

for what exactly is reasonable or unreasonable, not even the United States Supreme Court 

has sought to identify with any specificity. See Barker v. Willgo, 407 U.S. 514, 523, 92 S. 

Ct. 2182, 2188, 33 LEd. 2d 101 (1972) (noting that the Court could "find no 

constitutional basis for holding that the speedy trial right can be quantified into a 

specified number of days or months. The States, of course, are free to prescribe a 

reasonable period consistent with constitutional standards, but our approach must be less 

precise. "). 

Generally, a court must consider four factors when determining whether a defendant's 

right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the 

delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See 

Barker 407 U.S. at 530. "The length of the delay is to some extent a triggering 

mechanism. Until there is some delay which is presumptively prejudicial, there is no 

necessity for inquiry into the other factors that go into the balance." [d. The Supreme 

Court has acknowledged that delays of one year trigger the analysis into the other Barker 

factors. Duggett 1'. United States, 505 U.S. 647, 652 n. I, 112 S.Ct. 2686, 120 LEd.2d 

520 (1992). 
217 

Æ