Victims' Rights Amendment: A Proposal to Amend the United States Constitution in the 108th Congress
Released: 2004-04-16T00:00:00

Introduction

A victims' rights amendment to the United States Constitution has been introduced in threeessentially identically worded resolutions in the 108th Congress: S.J.Res. 1 , H.J.Res. 48 , and H.J.Res. 10 . (1) TheAmendment is one which the Presidenthas endorsed both in this Congress and the 107th Congress. (2) Comparable provisions different inword if not in spirit were offered in earlier Congresses. (3) This is a brief discussion of the content ofthe Amendment and of some of the issues it raises. (4)

Text of the Proposed Amendment

Resolved by the Senate and House of Representatives of the United States of America inCongress assembled, (two-thirds of each House concurring therein) , That the following article isproposed as an amendment to the Constitution of the United States, which shall be valid to all intentsand purposes as part of the Constitution when ratified by the legislatures of three-fourths of theseveral States , and which shall take effect on the 180th day after ratification of thisarticle : (5)

Article -

SECTION 1. The rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them, are hereby establishedand shall not be denied by any State or the United States and may be restricted only as providedin this article.

SECTION 2. A victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused; therights not to be excluded from such public proceeding and reasonably to be heard at publicrelease, plea, sentencing, reprieve, and pardon proceedings; and the right to adjudicativedecisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and justand timely claims to restitution from the offender. These rights shall not be restricted exceptwhen and to the degree dictated by a substantial interest in public safety or the administrationof criminal justice, or by compelling necessity.

SECTION 3. Nothing in this article shall be construed to provide grounds for a new trial or to authorize any claim for damages. Only the victim or the victim's lawful representative may assertthe rights established by this article, and no person accused of the crime may obtain any form ofrelief hereunder.

SECTION 4. The Congress shall have the power to enforce by appropriate legislation this article. Nothing in this article shall affect the President's authority to grant reprieves or pardons.

SECTION 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven yearsfrom the date of its submission to the States by the Congress. This article shall take effect onthe 180th day after the date of its ratification. (6)

Analysis

Purpose

Proponents of the Amendment have articulated five reasons for passage of the Amendment:

a constitutional amendment will balance the scales of justice;

a constitutional amendment will fix the patchwork of victims' rights laws;

a constitutional amendment will restore rights that existed when the Constitution was written;

a constitutional amendment is necessary because state law is insufficient; and

a constitutional amendment is necessary because federal statutory law is insufficient, 149 Cong.Rec. S82-4 (daily ed. Jan. 7, 2003).

The Need for Greater Balance.

"The scales of Justice are imbalanced. The U.S.Constitution, mainly through amendments, grants those accused of crime many constitutional rights,such as a speedy trial, a jury trial, counsel, the right against self-incrimination, the right to be freefrom unreasonable searches and seizures, the right to subpoena witnesses, the right to confrontwitnesses, and the right to due process under law.

"The Constitution, however, guarantees no rights tocrime victims. For example, victims have no right to be present, no right to be informed of hearings,no right to be heard at sentencing or at a parole hearing, no right to insist on reasonable conditionsof release to protect the victim, no right to restitution, no right to challenge unending delays in thedisposition of their case, and no right to be told if they might be in danger from release or escape oftheir attacker. This lack of rights for crime victims has caused many victims and their families tosuffer twice, once at the hands of the criminal, and again at the hands of the justice system that failsto protect them. The Crime Victims' Rights Amendment would bring balance to the judicial systemby giving victims of violent crime the rights to be informed, present, and heard at critical stagesthroughout their ordeal," 149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7,2003). (7)

The balance argument is hardly new. Close to three quarters of a century ago, the Supreme Court observed that "[t]he law, as we have seen, is sedulous in maintaining for a defendant chargedwith crime whatever forms of procedure are of the essence of an opportunity to defend. . . . Butjustice, though due to the accused, is due to the accuser also. The concept of fairness must not bestrained till it is narrowed to a filament. We are to keep the balance true." (8)

The due process clauses and other defendants' rights components of the Constitution supplied the foundation for the defendant-focused jurisprudence of the 1950's and 1960's. It has also servedas one of the early catalysts for the victims' rights movement. A call for greater constitutionalprotection of victims' rights seems a predictable feature of the belief that the criminal justice systemmust involve a greater balance between the rights of victim and those of the defendant. (9)

Some might suggest that victims already enjoy equal constitutional rights with the accused. (10) The victim who repels an unlawful assault with excessive force may find himself criminally charged. In that case, he is entitled to exactly the same constitutional rights as his attacker. (11)

Moreover, many of the constitutional rights afforded the accused benefit the victim as well. They are designed to ensure that the guilty are convicted and that the innocent are not. The accusedbenefits when the innocent are not convicted; the victim benefits when the guilty are. (12)

The more common response to the balance argument, however, has been that the balance argument "represents a fundamental misunderstanding of the nature and purpose of individualconstitutional rights." (13) In the same vein, one ofthe motives critics attribute to victims' rightsadvocates is a rejection of a basic premise of the American criminal justice system. They suggestvictims believe the criminal justice process constitutes an unjustifiable waste of time in a procedurethat should be reduced to identifying and then punishing suspects; they consider "suspect","accused", "defendant", and "guilty" synonymous terms. No process is too quick; no punishmentsufficiently severe; acquittals are an injustice. (14)

The Need for Uniformity.

"Eighteen states lack state constitutional victims' rights amendments. And the 32 existing state victims' rights amendments differ from each other. Alsovirtually every state has statutory protections for victims, but these vary considerably across thecountry. Only a federal constitutional amendment can ensure a uniform national floor for victims'rights." 149 Cong.Rec. S83 (remarks of Sen. Feinstein)(daily ed. Jan. 7, 2003). (15)

Although seldom expressed, the concern is that the presence of many individual standards contributes to the failure of existing provisions. Diversity breeds uncertainty that leads to a failureto comply and a failure to claim.

Critics respond that a victims' rights amendment would essentially federalize the state criminal justice process, denying the people of a particular state and their elected officials the right to decidethe range of victim rights and services that should be a part of their state criminal justice systems. (16)

Uniformity obviously requires compliance to a single standard imposed by an amendment to the United States Constitution. Some victims' advocates, however, see the Amendment as providinga constitutional minimum beyond which Congress and the states would remain free to establish moreexacting victims' rights, hence the reference to a "uniform national floor." (17) Skeptics may find thatthis does not eliminate the patchwork; it simply changes it. (18)

Restoration of Victims' Historic Rights.

"It is a little know[n] fact that at the time the Constitution was drafted, it was standard practice for victims-not public prosecutors-to prosecutecriminal cases. Because victims were parties to most criminal cases, they enjoyed the basic rightsto notice, to be present, and be heard. Hence, it is not surprising that the Constitution does notmention victims.

"Now, of course, it is extremely rare for a victim toundertake a criminal prosecution. Thus, victims have none of the basic procedural rights they usedto enjoy. Victims should receive some of the modest notice and participation rights they enjoyed atthe time that the Constitution was drafted," 149 Cong.Rec. S83 (remarks of Sen. Feinstein)(daily ed.Jan. 7, 2003).

Opponents suggest that the notice and participation rights enjoyed at the time the Constitution was drafted were modest indeed, a far cry from those of the proposal. In its infancy English criminallaw incorporated many of the features of private justice: outlawry, blood feuds, privatecompensation, (19) and trial by battle, (20) to mention a few. Several of these had disappearedbeforecolonization of the New World; others never really took hold here; still others, private criminalprosecutions among them, disappeared over time. Although the laws of the several Americancolonies were not nearly as homogenous regardless of time or place as we may often believe, itseems clear that well before the founding of the Republic criminal prosecutions were almost alwaysconducted by a public official. (21) United StatesAttorneys or their predecessors, United States DistrictAttorneys, have prosecuted federal crimes from the beginning, 1 Stat. 92 (1789). Privateprosecutions were permitted in some states, but even in such places they appear to have beenunusual. (22)

Moreover, private prosecution brought with it but a meager portion of the rights today associated with victims' rights. A victim might hire a private prosecutor and might expect noticeof the proceedings and their outcome as well as presentation of his views. Yet there has been nosuggestion that the practice gave the victim an enforceable right to be present or to be heard otherthan through his or her attorney.

Inadequacy of State Law Alternatives.

"These state [victims' rights] measures have helped protect crime victims; but they are inadequate for two reasons. First, each amendment is different,and not all states have provided protection to victims. . . . Second, statutory and state constitutionalprovisions are always subservient to the federal constitution; so, in cases of conflict, the defendants'rights, which are already in the U.S. Constitution will always prevail." 149 Cong.Rec. S82 (remarksof Sen. Kyl) (daily ed. Jan. 7, 2003). (23)

The adequacy of alternatives, now and in the future, lies at the heart of the dispute. Proponents find present law wanting. (24) Opponents findpresent law workable and fear an amendment wouldmake matters worse. (25) The specifics of theproposal provide the specifics for much of the debate. The more robust the amendment, the more civil libertarians and the states are likely to object; themore restrained the amendment, the more victims' rights advocates are likely to question itssufficiency.

Inadequacy of Federal Statutory Alternatives.

"The leading statutory alternative to the Victims' Rights Amendment would only directly cover certain violent crimes prosecuted in Federal court. Thus, it would slight more than 99 percent of victims of violent crime. We should acknowledge thatFederal statutes have been tried and found wanting. It is time for us to amend the U.S.Constitution.

"The Oklahoma City bombing case offers anotherreason why we need a constitutional amendment. This case shows how even the strongest Federalstatute is too weak to protect victims in the face of a defendant's constitutional rights. In that case,two Federal victims' statutes were not enough to give victims of the bombing a clear right to watchthe trial and still testify at the sentencing-even though one of the statutes was passed with thespecific purpose of allowing the victims to do just that," 149 Cong.Rec. S84 (remarks of Sen.Feinstein)(daily ed. Jan. 7, 2003). (26)

Existing federal law enjoins federal officials to make "their best efforts" to ensure that crime victims are accorded:

(1) The right to be treated with fairness and with respect for the victim's dignity and privacy.

(2) The right to be reasonably protected from the accused offender.

(3) The right to be notified of court proceedings.

(4) The right to be present at all public court proceedings related to the offense, unless thecourt determines that testimony by the victim would be materially affected if the victim heardother testimony at trial.

(5) The right to confer with attorney for the Government in the case.

(6) The right to restitution.

(7) The right to information about the conviction, sentencing, imprisonment, and releaseof the offender. 42 U.S.C. 10606(b).

Section 10606, however, "does not create a cause of action or defense in favor of any person arising out of the failure to accord to a victim [these] rights," 42 U.S.C. 10606(c).

In other victim related provisions, federal law establishes public safety and the safety of any individual (including victims) as required considerations before bail is granted, 18 U.S.C. 3142(b). It no longer bars victims from federal criminal proceedings simply because they are potentialwitnesses, 18 U.S.C. 3510, but their attendance may bar them from testifying at any subsequentsentencing proceedings as witnesses. (27) It entitlesvictims of federal property crimes and crimes ofviolence to restitution, 18 U.S.C. 3663A, and to present a statement to the court before sentence isimposed, F.R.Crim.P. 32(c)(3)(E).

Overview

The Amendment is more succinct by design than its predecessors. (28) As a consequence it offersa wider range of interpretative choices. In general terms, it defines the participation of crime victimsin state and federal official proceedings generated by the crimes committed against them. It givesthem qualified notification, attendance, articulation, and consideration rights. Official decisionsmust take victims' safety and their interests in avoiding delay and in restitution into account. Victims have a right to be heard on questions of bail, plea agreements, sentencing, and pardons. They have a right to be informed of, and not excluded from, crime-related public proceedings andto be notified of escapes and releases. Congress enjoys legislative authority to enforce theAmendment, but may restrict victims' rights only in the name of public safety, the administrationof criminal justice, or compelling necessity.

Preemptive and Amending Impact

The United States Constitution is the supreme law of the land, U.S.Const. Art. VI, cl.2. When it is said that nothing in victims' rights edicts created by statute or state constitution imperilsdefendants' rights under the United States Constitution, that is correct; nothing could. But anamendment to the United States Constitution stands on different footing. It amends the Constitution. Its very purpose is to make constitutional that which would otherwise not have been. (29) It maysubordinate defendants' rights to victims' rights or subordinate victims' to defendants' rights. It maysubordinate either, both, or neither to prosecutorial discretion. It may require any conflicting lawor constitutional precept, state or federal, to yield. Even in the absence of a conflict, it may preemptthe field, sweeping away all laws, ordinances, precedents, and decisions - compatible andincompatible alike - on any matter touching upon the same subject. Whether it does so or to whatextent it does so is a matter of interpretation. That is, what is its intent? What does it say? Whatis its purpose? What does its history tell us?

The questions are most perplexing when an apparent conflict exists between state and federal law or among the rights and prerogatives of victims, defendants and prosecutors. The interpretativeprinciples of preemption triggered by an apparent conflict between state and federal law are fairlywell developed. "[P]reemption of state law [may occur] either by express provision, by implication,or by a conflict between federal and state law. And yet, despite the variety of these opportunities forfederal preeminence, [the Court has] never assumed lightly that Congress has derogated stateregulation, but instead [has] addressed claims of preemption with the starting presumption thatCongress does not intend to supplant state law. Indeed, in cases . . . where federal law is said to barstate action in fields of traditional state regulation, [the Court has] worked on the assumption thatthe historic police powers of the states were not to be superseded by the Federal Act unless that wasthe clear and manifest purpose of Congress." (30) Conversely, by virtue of the Supremacy Clause,where the subject matter is one which the Constitution relegates to the federal domain, the vitalityof state law is dependent upon the largess of Congress and the Constitution. (31)

A victims' rights amendment to the United States Constitution that relegates the area to the federal domain, confines state authority to that which the amendment permits or allows Congressto permit. Few advocates have explicitly called for a "king-of-the-hill" victims' rights amendment,but the thought seems imbedded in the complaint that existing law lacks uniformity. How else canuniversal symmetry be accomplished but by implementation of a single standard that fills in wherepre-existing law comes up short and shaves off where its generosity exceeds the standard? Yet therecent history of the Amendment and proposals indicate that advocates intended to establish aminimum rather than a uniform standard. (32)

Questions of the Amendment's impact on the rights afforded the accused may be even more difficult to discern. The principles of construction called into play in the case of a conflict betweena victims' rights amendment and rights established elsewhere in the Constitution are similar to thoseused to resolve federal-state conflicts.

Intent of the drafters is considered paramount, but the courts will make every effort to reconcile apparent conflicts between constitutional provisions. (33) In the case of unavoidable conflict betweenprovisions of equal dignity, the latest in time prevails. (34) If there is an unavoidable conflict betweena right granted by an adopted victims' rights amendment and some other portion of the Constitution,the most recently adopted provision will prevail. As discussed below, proposals in the 106th Congresscame to naught over the issue of defendants' versus victims' rights. (35)

Victims' Rights v. Defendants' Rights

Defendants' rights and prosecutors' prerogatives have been the twin Achilles' heels (36) of pastvictims' rights proposals. The challenge has been to strike a balance between the rights of victimsand defendants without impinging on defendants' rights or hamstring law enforcement efforts; todeny defendants' rights trump status without denying the defendants their rights or jeopardizingprosecutorial prerogatives.

Contemporary Practices.

The victims' rights amendments in a few state constitutions concede that they may not be construed to diminish the rights of the accused. (37) Most rights that the United States Constitutionguarantees the accused are binding on the states (38) and thus beyond limitation by state constitutionalamendment in any event.

Past Practices.

Until the Amendment in its present form first appeared in the 107th Congress, none of the proposals addressed the resolution of conflicts between the constitutional rights of defendants andthe rights created in the Amendment. During Senate Judiciary Committee consideration of aproposal in the 108th and 106th Congresses, a modification was offered and defeated thatwould haveprovided that, "Nothing in this article shall limit any right of the accused which may be provided bythis Constitution," S.Rept. 108-191 , at 44; S.Rept. 106-254 at 43.

Amendment in the 108th Congress.

Section 1: The rights of victims of violent crime, being capable of protection without denyingthe constitutional rights of those accused of victimizing them, are hereby established and shallnot be denied by any State or the United States and may be restricted only as provided in thisarticle.

Past proposals contained no mention of the rights of the accused. Consistent with the past, this preamble may represent no more than the announcement of an article of faith. If so, in cases ofunavoidable conflict the rights of the victim being later in time would always trump the rights of theaccused. Alternatively, it may limit the rights protected by the Amendment to those that do notintrude upon the rights of the accused, that is, in cases of unavoidable conflict the rights of theaccused would always trump the rights of the victim. Which reading, if either, is correct? TheAmendment's remaining text offers few clues.

The style is reminiscent of the Second Amendment, (39) but the similarities are not instructive. The Supreme Court has rarely construed the Second Amendment. Moreover the relationshipbetween preambletory clause and the substance of the section are not the same. The SecondAmendment states that the right to bear arms may not be infringed because a well regulated militiais necessary to the security of a free state. The Amendment states that victims' rights are establishedand may not be denied because they need not conflict with the rights of the accused. The SecondAmendment speaks of a rationale; the Amendment of an assurance of compatibility.

The statement of Professor Tribe, who helped draft the Amendment, seems to favor an accused-rights-or-prosecutor's-discretion-trumps-victims-rights solution: "How best to protect thatright [of victims] without compromising either the fundamental rights of the accused or theimportant prerogatives of the prosecution is not always a simple matter, but I think your finalworking draft of April 13, 2002 resolves that problem in a thoughtful and sensitive way . . . That youachieved such conciseness while fully protecting defendant's rights and accommodating thelegitimate concerns that have been voiced about prosecutorial power and presidential authority is nomean feat," 149 Cong.Rec. S85 (daily ed. Jan. 7, 2003)(letter from Laurence H. Tribe to SenatorsDianne Feinstein and Jon Kyl). Victims' rights appear to come in third, if the object was to protectvictims' rights without compromising prosecutorial prerogatives or the rights of the accused. Butthis is the status quo from the perspective of the Amendment's sponsors; it is what the Amendmentseeks to change. It is a construction seemingly at odds with the purpose for the Amendment.

On the other hand, hearing witnesses offered explanations echoed in the Committee report under which prosecutorial prerogatives appear to come in a distant third:

This preamble, authored by Professor Tribe, establishes two important principles about the rights established in the amendment: First, they are not intendedto deny the constitutional rights of the accused, and second, they do not. The task of balancingrights, in the case of alleged conflict, will fall, as it always does, to the courts, guided by theconstitutional admonition not to deny constitutional rights to either the victim or the accused. SenateHearing V ; House Hearing V at 26 (statement of Steven T. Twist)(emphasis in the original). (40)

This may be why the restriction clause in section 2 of the Amendment (41) is said to imposes a lessdemanding standard for law enforcement exceptions than for defendants' rights exceptions. (42)

Victims of Crime

The Amendment creates rights for the victims of violent crime. Its scope turns on the definition of victim, on the definition of violent crime, and on the jurisdiction whose proceedings and decisionsthe Amendment governs. The Amendment's authors apparently contemplate basic coverage ofindividuals and legal entities victimized by any crime that in its nature or the circumstances of itscommission involves the use or threatened use of physical force against the person or property ofanother, S.Rept. 108-191 , at 30-2. In addition, they seem to anticipate that Congress and the statesmay directly expand this basic coverage for the benefit of victims of certain nonviolent crimes andindirectly expand it by the conduct they subsequent decide to outlaw or legalize, id. TheAmendment in section 2 seems to concede continuing legislative authority - at least for Congressand perhaps for the states - to curtail this basic coverage "where and to the degree dictated by asubstantial interest in public safety or the administration of criminal justice, or by compellingnecessity."

On its face the Amendment would appear to apply with respect to proceedings involving a crime - federal, state, territorial or tribal; civilian or military - but probably not with respect tojuvenile proceedings under any of those authorities.

Contemporary Practices.

Who is a Victim.

In common parlance, the concept of victim is fairly broad. It encompasses the sympathetic and not so sympathetic victim - the rape victim and the "ripped off" drug dealer; the casualties of gangwarfare, both bystander and participant; the middleman in a pyramid scheme; (43) the defendant whois acquitted or whose conviction is overturned; (44) and the elderly person defrauded the savings of alifetime.

The term often contemplates parents and other members of the family of a deceased, incapacitated, or juvenile victim. In the case of property crimes, it may include anyone with aninterest in the property, e.g , an owner, a tenant, a mortgage holder, or an insurer. In a commercialsetting, it embodies those who are economically disadvantaged by a crime even if they suffered nodirect injury to an identifiable property interest. In the case of civil rights violations, hate crimes,and terrorism, any member of the group targeted for intimidation may correctly be counted a victim. In the case of public solicitation for prostitution, public drug trafficking, and other crimes withelements of environmental nuisance, anyone who lives in, does business in, or has occasion to visitany affected geographical area might be listed among the victims. (45) The various "Megan's Law"efforts seem to suggest that at least in the public mind, the concept of victim also may encompasspotential victims under some circumstances. (46) The governmental entities that must bear the cost ofinvestigating and prosecuting crime could legitimately be considered its victims. Finally, the conceptof criminal law is based upon the premise that a criminal act is a transgression against the socialorder, against the commonweal, the body politic; a crime is a wrong committed against all of us.

Most state constitutional amendments do not define the classes of crime victims for whom they establish rights. (47) Statutory definitions are diverseand more than a few jurisdictions recognizedifferent definitions for different purposes. The corporate victim of a crime, for example, may beentitled to restitution but not to notice of the release of an offender. (48) Under some victims' rightsstatutes, "victims" may be limited to the victims of felonies or of specific violent crimes. (49) In severalinstances, states have modified their definitions of "victim" to exclude certain classes of victims, e.g. , prisoners, codefendants, and the like. (50)

Rights in What System.

The question of what constitutes a "crime" for purposes of victims' rights is one of several parts. What type of crimes does it cover? Does the Amendment cover state as well as federalcrimes? Does it cover crimes proscribed by the laws of the District of Columbia, or of Puerto Rico,or of any of the other territories or possessions of the United States? (51) Does the Amendment exemptcertain victims either because of the character of the victim (e.g., corporate entity, criminallyaccused) or the status of the accused (e.g., a juvenile, a Native American, or a member of the armedforces)? In most jurisdictions, conduct that would be considered criminal in an adult is considereddelinquency (not criminal conduct) in a juvenile unless the juvenile is tried as an adult. The statesare divided over whether the victims of acts of juvenile delinquency are entitled to the same levelof rights as the victims of the same misconduct when committed by an adult. (52)

Past Proposals.

Who is a Victim.

The drafters of past victims' rights proposals have opted for one of three alternatives: (1) crimes of violence; (53) (2) felonies and crimes ofviolence; (54) (3) crimes of violence and such othercrimes aswere legislatively designated. (55) The vast majorityhave created rights for the victims of both stateand federal crimes: (56)

A victim of a crime of violence, as these terms may be defined by law, shall have the rights to . . . S.J.Res. 3 (106th Cong.)

Each individual who is a victim of a crime for which the defendant can be imprisoned for a period longer than one year or any other crime that involves violence shall the rights to . .. H.J.Res. 64 (106th Cong.).

Section 3 of some of the older proposals declared that "no person accused of the crime may obtain any form of relief hereunder." This obviously referred to those who victimize, but it mighthave disqualify victims who were also accused of a crime. For example, if both parties to a domesticaltercation were charged, neither might be considered qualified. Alternatively, they might each beconsidered the victim of the other's crime, and thus both be entitled to the Amendment's benefits. The language (" the crime") probably could not be reasonably construed to bar claims by those underindictment or other form of criminal charge for other crimes. Thus, for instance, inmates who arethe victims of criminal assaults while incarcerated would appear to qualify as victims under theproposal. (57)

Rights in What System.

All but one of the early proposals included juvenile proceedings; (58) some covered militaryprosecutions without reservation; (59) somecontained explicit reference to habeas proceedings; (60) several lacked any explicit reference to the territorial courts; (61) and one applied only to federalproceedings. (62)

In the 106th Congress, the proposals reached state, federal, and territorial proceedings; juvenile proceedings; and, to the extent permitted by Congress, military proceedings. In doing so, the SenateJudiciary Committee explained, the proposals endorsed the Justice Department's belief that "therights of victims of juvenile offenders should mirror the rights of victims of adult offenders." (63) Theyalso embodied an exception for military proceedings under the view that "[b]ecause of thecomplicated nature of military justice proceedings, including proceedings held in times of war, theextension of victims' rights to the military was left to Congress. The Committee intends to protectvictims' rights in military justice proceedings while not adversely affecting military operations." (65)

The proposal in the 106th Congress stated that:

The rights and immunities established by this article shall apply in Federal and State proceedings, including military proceedings to the extent that the Congress may provide bylaw, juvenile justice proceedings, and proceedings in the District of Columbia and anycommonwealth, territory, or possession of the United States. S.J.Res. 3 (106th Cong.);H.J.Res. 64 (106th Cong.).

Amendment in the 108th Congress.

SECTION 1: The rights of victims of violent crime . . . shall not be denied by any State or the United States and may be restricted only as provided in this article.

SECTION 2: A victim of violent crime shall have the right to . . . .

Who is a Victim.

The Amendment defines neither "victim" nor "violent crime." Nor does it explicitly authorize a legislative definition, although such authority is probably contemplated in Congress' authority toenact appropriate enforcement legislation and perhaps in the reservation for restrictions "dictated bya substantial interest in public safety or the administration of criminal justice, or by compellingnecessity." In the absence of any such implementing statutory illumination, the courts would likelyconstrue the terms in light of the remaining text of the Amendment, the ordinary meaning of thewords, the meaning given the same words elsewhere in the law, implications of Congress' rejectionof proposed alternatives, and explanations within the Amendment's legislative history.

Section 3 continues to carry the language found in previous proposals that denies the Amendment's benefits to those accused of the crime. As noted earlier, this would seem disqualifyneither of the participants in a mutual assault nor inmates victimized during their incarceration.

The courts may also consider the word "victim" limited by the insistence in Section 3 that onlythe victim or the victim's lawful representative may claim the Amendment's benefits. The conceptof "representative" is rather clearly stated in singular terms, as one who speaks in the interest of thevictim rather than in his own interest; (66) parentsand other relatives of a deceased or child victimmight not themselves be considered victims simply by virtue of the relationship and and as discussedbelow perhaps only one of them could be selected as the victim's representative. (67)

The Amendment uses the word "crime" rather than the less inclusive word, favored in many of the earlier proposals and often in existing federal law, "felony." Thus, it seems the Amendmentprotects the rights of victims of violent crimes other than felonies, e.g., misdemeanors. (68) Of course,crimes which are indisputably nonviolent clearly cannot provide the foundation for a claim of rightunder the Amendment, a result which some may find unsatisfactory in some cases. (69)

Looking elsewhere in federal law for guidance, the courts might observe that the term "victim" has been assigned definitions which vary according to the context in which they are used, althoughthe existing federal victims' rights statute might be thought to supply the most instructivedescription: i.e ., "'victim' means a person that has suffered direct physical, emotional, or pecuniaryharm as a result of the commission of a crime, including-(A) in the case of a victim that is aninstitutional entity, an authorized representative of the entity; and (B) in the case of a victim who isunder 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order ofpreference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) a sibling; (vi) anotherfamily member; or (vii) another person designated by the court," 42 U.S.C. 10607(e)(2). (70)

Of course the definition of "violent crime" plays a large role in determining who may be considered a victim for purposes of the Amendment. The definition from the legal dictionaries isvery narrow: " violent offenses . Crimes characterized by extreme physical force such as murder,forcible rape, and assault and battery by means of a dangerous weapon," Black's Law Dictionary1564 (7th ed. 1999). It is a description drawn perhaps from the Federal Bureau ofInvestigation's Uniform Crime Reports which since 1960's have categorized only murder,nonnegligent manslaughter, forcible rape, robbery, and aggravated assault as"violent crimes." (71) These are crimes against theperson. The list includes neither crimesof violence against property nor those that portend violence. It encompasses neitherarson, nor burglary, nor kidnaping.

Elsewhere in federal law, "violent crime" is sometimes thought of as synonymous with a "crime of violence," a concept ordinarily described in more sweeping terms, e.g., "(a) an offense that has as an element of the use, attempted use, or threatened use ofphysical force against the person or property of another, or (b) any other offense thatis a felony and that, by its nature, involves a substantial risk that physical forceagainst the person or property of another may be used in the course of committing theoffense," 18 U.S.C. 16 (emphasis added). Unfortunately, the various definitions of"violent crime" found in federal law are too diverse to yield a single standard. (72) Moreover, many of the earlier proposed victims' rights amendments spoke of "crimes ofviolence as defined by law." The present proposal is the first to speak of "violentcrimes" and does not closely append a "defined by law" reference. The difference mightbe seen as a rejection of the definitions and definitional diversity of the term "crimesof violence" and perhaps of earlier interpretations of the "crimes of violence" phrase.

The issue of how the courts will construe the terms "victim" and "violent crime" becomes less problematic if they can be defined legislatively. A witness at the Househearings in the 107th Congress and again in the 108th Congress suggested that theAmendment comes with an implicit understanding that both Congress and statelegislatures have complete latitude to define both "victim" and "violent crime" as longas they do not violate the Amendment:

It should be noted that States, and the Federal Government, within their respective jurisdictions, retain authority todefine, in the first instance, conduct that is criminal. The power to define "victim" issimply a corollary of the power to define the elements of criminal offenses and, forState crimes, the power would remain with the StateLegislatures.

It is intended that both the word "victim" and the phrase "victim's lawful representative" will be the subject ofstatutory definition by the state legislatures and the Congress, within their respectivejurisdictions. No single rule will govern these definitions, as no single rule governswhat conduct must be criminal. In the absence of a statutory definition the courtswould be free to look to the elements of an offense to determine who the victim is, andto use its power to appoint appropriate lawful representatives, Senate Hearing IV at 181,200; House Hearing IV at 19, 29 (statement of Steven T. Twist, General Counsel, NationalVictims Constitutional Amendment Network); Senate Hearing V ; House Hearing V at 30,48 (statement of Steven T. Twist, General Counsel, National Victims ConstitutionalAmendment Network).

The Senate Judiciary Committee's analysis of the Congress' enforcement authority under similar language in an earlier version of the Amendment made the similar point:

This provision is similar to existing language found in section 5 of the 14th Amendment to the Constitution. This provisionwill be interpreted in similar fashion to allow Congress to 'enforce' the rights, thatis, to ensure that the rights conveyed by the amendment are in fact respected. At thesame time, consistent with the plain language of the provision, the Federal Governmentand the States will retain their power to implement the amendment. For example, theStates will, subject to Supreme Court review, flesh out the contours of the amendmentby providing definitions of 'victims' of crime and 'crimes of violence,'" S.Rept. 106-254 at 41.

Does this mean that either Congress or the states are free to negate the Amendment by definition? May they define victims of violent crimes to include onlythose victims entitled to victims' rights under state law and only to the extent thatstate law permits? May they define victims of violent crimes so narrowly as toextinguish victims' rights under the Amendment? No, asserts the Senate JudiciaryCommittee report on the 108th Congress Amendment. Congress and the states are freeto expand the Amendment's coverage to embrace victims of nonviolent crimes, but theCommittee intends the term "victim of violent crime" to be understood broadly and tobe so interpreted by the courts:

The amendment extends broadly to all victims of a "violent crime." The phrase "violent crime" should be considered in the context of an amendment extendingrights to crime victims, not in other possible narrower contexts. The mostanalogous federal definition is Federal Rule of Criminal Procedure 32(f), whichextends a right of allocution to victims of a "crime of violence" and defines thephrase as one that " involved the use or attempted use of physical force against theperson or property of another. * * * (emphasis added). The Committee anticipatesthat the phrase "violent crime" will be defined in these terms of "involving"violence, not a narrower "elements of the offense" approach employed in othersettings. See, e.g., 18 U.S.C. 16. Only this broad construction will serve to protectfully the interests of all those affected by criminal violence.

Of course, not all crimes will be "violent" crimes covered by the amendment. For example, the amendment does not confer rights on victims of larceny, fraud,and other similar offenses. At the same time, many States have already extendedrights to victims of such offenses and the amendment in no way restricts suchrights. In other words, the amendment sets a national "floor" for the protectingof victims rights, not any sort of "ceiling," S.Rept. 108-191 , at 31, 32.

The Committee's reference to crimes of "physical force against the . . . property of another" as qualifying "violent crimes" seems to support the argument that a victimcovered by the Amendment includes anyone whose property interest might unlawfullybe made the subject of the use of physical force, i.e ., victims may include not onlyindividuals but any legal entity capable of holding an interest in property. Thisreference and other remarks indicate the Committee understands the term "crime ofviolence" to describe crime violent or potentially violent in either its nature or itscircumstances. (73)

Rights in What System.

The Amendment makes little mention of the systems it reaches. It clearly applies to both federal and state criminal justice systems ("The rights of victims of violentcrime . . . are hereby established and shall not be denied by any State or the UnitedStates . . ."). The elimination of the provision found in earlier proposals that addressits coverage elsewhere might be construed as an indication that the Amendment on itsface is inapplicable to juvenile proceedings, to proceedings before military tribunals,or to criminal proceedings in territorial or tribal courts. On the other hand, theomission may be seen as the elimination of redundancy, since each of the systemsfunctions ultimately under the authority of either a state or the United States. (74)

Notice

Notice in the world of victims' rights takes three forms, notice to the victim: (1) of his or her rights, (2) of the status of the criminal investigation and prosecution, as wellas the time, place, and outcome of related judicial proceedings, and (3) of the releaseor escape of the accused or convicted offender. Notice allows victims to assert theirrights, facilitates their participation, assures them that justice is being done, andaffords them the opportunity to take protective measures. The Amendment does notinclude a right to notification of the Amendment's benefits. Its provision fornotification of release or escape applies only prior to conviction, i.e., only with respectto the release or escape of the accused. It does, however, entitle victims to reasonableand timely notice of all public proceedings involving the crime.

Contemporary Practices.

A general right to notice of available rights and services is found in more than a few state codes and constitutions, either in the form of a victims' right or of agovernmental obligation. (75) Existing federal lawimposes the obligation on federalofficials, 42 U.S.C. 10607. Nevertheless, its presence in the Amendment would representa departure from the cast of most U.S. constitutional rights and in past proposals hasgiven at least one member of the Senate Judiciary Committee pause. (76)

Most states give victims the option of being notified when an offender is to be released or has escaped from custody. (77) Existingfederal law, extends the notificationoption only to the release of offenders, 42 U.S.C. 10605(b)(7). State constitutionalamendments ordinarily require notification of court proceedings; (78) several, byconstitution or statute or both, require notification of the arrest of an accused orother information concerning the status of the investigation or prosecution. (79)

Past Proposals.

The resolutions introduced in the 104th Congress offered crime victims the right to notification of related proceedings, of the release or escape, (80) and came with a rightto be informed of the amendment's benefits. (81) The pattern continued in successiveCongresses with some alterations. The resolutions thereafter spoke of notice ofrelated "public proceedings," struggled with the issue of notification of closed parolehearings, (82) and maintained a right to be informedof the amendments' benefits: (83)

A victim . . . shall have the right . . . to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime. . . to the foregoingrights at a parole proceeding that is not public, to the extent those rights areafforded to the convicted offender . . . to reasonable notice of a release or escapefrom custody relating to the crime . . . and to reasonable notice of the rightsestablished by this article. S.J.Res. 3 (106th Cong.); H.J.Res. 64(106th Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of theaccused;

The Amendment differs from its antecedents in five respects. First, it demands that notice be timely as well as reasonable. Second, it drops all references to paroleproceedings. Third, it extends to proceedings "involving the crime" rather than toproceedings "related to the crime." Fourth, the Amendment promises notice of therelease or escape of "the accused." Fifth, there is no longer any declaration that avictim is entitled to notification of his or her rights under the Amendment.

The Amendment's grant of rights is subject to obvious facial limitations:

- the notice rights apply only with respect to public proceedings ;

- the rights attach to those proceedings involving the crime not those related to the crime;

- victims are only entitled to reasonable and timely notice; and

- victims are only entitled to notice of the release or escape of the accused.

Public Proceedings.

The "public proceedings" feature is not new. Yet there has always been some question whether courts and legislative bodies might by closing otherwise publicproceedings curtail victims' notification and other rights that would otherwise bebeyond judicial or legislative reach. The history of past proposals indicates that thismay be the case:

Victims' rights under this provision are also limited to 'public proceedings.' Some proceedings, such as grand juryinvestigations, are not open to the public and accordingly would not be open to thevictim. Other proceedings, while generally open, may be closed in some circumstances. For example, while plea proceedings are generally open to the public, a court mightdecide to close a proceeding in which an organized crime underling would plead guiltyand agree to testify against his bosses. See 28 C.F.R. 50.9. Another example is providedby certain national security cases in which access to some proceedings can berestricted. See 'The Classified Information Procedures Act' 18 U.S.C. App.3. A victimwould have no special right to attend. The amendment works no change in thestandards for closing hearings, but rather simply recognizes that such nonpublichearings take place. S.Rept. 108-191 at 34; see also, S.Rept. 106-254 at 30, S.Rept. 105-409 at 25. (84)

Involving the Crime.

The breadth of the phrase " involving the crime" used to described the public proceedings covered by the notification right may raise questions too. The phraseclearly contemplates more than trial. Pre-trial and post-trial hearings involvingmotions to dismiss, to suppress evidence, to change venue, to grant a new trial, and anyof the host of similar proceedings that flow to or from a criminal trial seem to comewithin the meaning of the term. The Senate reports' discussion of proceedings " relatedto the crime" in earlier versions, for instance, specifically mention appellateproceedings, S.Rept. 106-254 at 31, S.Rept.105-409 at 26.

The same reports indicate that at least at one time covered release proceedings were understood to include those involving "a release [from custody] of a defendantfound not guilty of a crime by reason of insanity and then hospitalized in custody forfurther treatment," Id . at 36 and 30. Crime relatedness, understood in such terms,would presumably carry victim notice rights to a fairly wide range of civil andquasi-civil proceedings, e.g. , habeas and civil forfeiture proceedings, deportation andextradition hearings, and administrative disciplinary reviews (if conducted publiclybefore a tribunal) to name but a few.

It may be for this reason that the phrase was changed to "involving the crime," a phrase that arguably imposes greater limits on the class of proceedings than might beconsidered "related," although not clearly sufficient to excuse notice of the habeas,forfeiture, deportation, or the extradition proceedings. (85) Historical proposals werethought to perhaps embody notice rights for the victims of a defendant's past crimes,and victims of charges that have been dropped or dismissed, as well as victims ofcharges that had resulted in acquittal. (86) Thechange might be considered a repudiationof that construction as well.

The Senate Judiciary Committee, however, indicates that no such repudiation was intended and states simply that the "public proceedings are those 'relating to thecrime,'" S.Rept. 108-191 at 34. In doing so, it might be thought to have embraced earlierdescriptions of proceedings related to the crime, even though the Committee's examplesin the 108th Congress are much more modest in some places, id. ("the right applies notonly to initial hearings on a case, but also rehearings, hearing at an appellate level,and any case on a subsequent remand"). (87)

Reasonable and Timely Notice.

The addition of "timely" unquestionably seems significant, because it would appear to greatly reduce the prospect of "reasonable" but ineffective notice. Yet theCommittee report issued after the change makes no note of it and continues to describethe obligation in the same terms used prior to the change. (88) Under past proposals it wasunclear whether reasonableness was to be judged by the level of official effort or bythe effectiveness of the effort. The Senate reports noted and continue to note thatheroic efforts were not expected but due diligence was, S.Rept. 108-191 at 34; S.Rept.106-254 at 30, S.Rept. 105-409 at 25. Yet the obvious purpose for the right to notice wasto provide a gateway to the Amendment's other rights. Even without the addition ofthe clarifying "timely" requirement, what was reasonable might have been judged bywhether the efforts were calculated to permit meaningful exercise of the Amendment'sother rights. (89)

The Senate reports, however, explain that in rare circumstances notice by publication might be reasonable, (90) although ifjudged by existing due process standardssuch notice might not be adequate in ordinary circumstances. (91) Notice given after aproceeding was conducted might have seemed unreasonable because the want of timelynotice might constitute an effective exclusion from the proceedings or might defeatthe right to make a victim impact statement. (92) The addition of a timeliness requirementseems to reduce the possibility of "reasonable" but untimely notification. (93)

In the context of release notifications, the most vexing reasonableness questions may not involve individual circumstances but general conditions. In some jurisdictions,the Amendment may require notification of a host of victims who would not previouslyhave been entitled to notification and whose identity and location is thereforeunknown to custodial authorities. (94) Wouldpublication notice be consideredreasonable in such cases? Would the existence of an online or other automated systemavailable to the general public and containing release and escape dates retrievableby prisoner name, without more, constitute reasonable notice?

Application may be particularly challenging in the area of bail. The Amendment grants both a right to consideration of the victim's safety and a right to reasonablenotice and attendance. Under normal circumstances it might not be unusual for anaccused to be released on recognizance or bail before authorities could reasonablybe expected to provide victims with timely notice. It may be that the Amendmentcontemplates postponement of the accused's initial judicial appearance until aftervictims can be notified and can be given a reasonable period of time to prepare andpresent their views. At one time, amendment proposals seem to explicitly anticipatethat a failure of timely notice in a bail context could be rectified by recourse to theprovision in the Amendment that permitted the bail decision to be revisited at thebehest of a victim. (95) The Amendment no longercontains that explicit provision, butnothing in the Amendment precludes revisitation - other than abandonment of theearlier explicit provision perhaps.

Release or Escape of the Accused.

For the first time, the Amendment refers to notice of the release or escape of the accused . The implication is that there is no right to notice of a release or escapefollowing conviction, since at that point the defendant is "convicted" rather than"accused." If this is the Amendment's meaning, the consequences of the change areconsiderable. The administrative burdens associated with notifying victims every timean inmate is released from custody are not insignificant, particularly in thosejurisdictions without any comparable requirement of their own. This is especially trueif the Amendment is construed to apply to the future release or escape of prisonersconvicted of crimes committed prior to the effective date of the Amendment.

Nevertheless, the Committee report in the 108th Congress suggests that the Senate Judiciary Committee considers the terms "accused" and "convicted" interchangeableand intended no change from earlier more generously worded proposals:

The release [which triggers a notification requirement] must be one "relating to the crime." This includes not only a release after a criminal conviction butalso, for example, a release of a defendant found not guilty of a crime by reasonof insanity and then hospitalized in custody for further treatment, or a releasepursuant to a habitual sex offender statute, S.Rept. 108-191 at 35.

No Rights Warnings.

Notice of rights had been a feature of the past proposals from the beginning. It followed the lead of several state constitutions and statutes. It was perhaps seen asa victim's counterpart to the Miranda warnings enjoyed by an accused and as aprerequisite if the Amendment were to function effectively. (96) There were objections,however, that the warnings were out of character with the other rights conveyed bythe Constitution and might pose implementation problems - objections that ultimatelyprevailed apparently. (97)

Not to Be Excluded

The Constitution promises the accused a public trial by an impartial jury (98) andaffords him the right to be present at all critical stages of the proceedings againsthim. (99) It offers victims no such prerogatives. Their status is at best that of any othermember of the general public and, in fact, the Constitution screens the accused's rightto an impartial jury trial from the over exuberance of the public. (100)

Moreover, victims are even more likely to be barred from the courtroom during trial than members of the general public. Ironically, the victim's status as a witness,the avenue of most likely access to pre-trial proceedings, is the very attribute mostlikely to result in exclusion from the trial.

Sequestration, or the practice of separating witnesses and holding outside the courtroom all but the witness on the stand, is of ancient origins and "consists merelyin preventing one prospective witness from being taught by hearing another'stestimony." (101) The principle has beenembodied in Rule 615 of the Federal Rules ofEvidence and in state rules that adopt the federal practice. (102)

Victims' advocates contend that it should be fundamental that individuals may attend the entire trial involving the crime visited upon them. Yet an absolute right toattend all proceedings may sometimes be unfair, and in some instances even a violationof due process or the right to trial by an impartial jury.

The Amendment assures victims of the right not to be excluded from any public proceedings involving the crime. It is one area where balancing the interests of victim,defendant, and government may be most challenging. The right brings with it noauxiliary right to transportation to such proceedings, a companion that mightaccompany a right to attend. It applies to only those functions that qualify as official"proceedings." It operates only with respect those proceedings that are "public."

Contemporary Practices.

In response to the debate, about a third of the states now permit victims to attend all court proceedings regardless of whether the victim is scheduled to testify; (103) another group allows witnesses who are victims to attend subject to a showing as towhy they should be excluded; (104) a few leavethe matter in the discretion of the trialcourt; (105) and some have maintained thetraditional rule - witnesses are sequesteredwhether they are victims or not. (106)

Subject to Rule 615 of the Federal Rules of Evidence which permits exclusion of victim/witnesses, the federal statutory victims' bill of rights recognizes the right ofvictims "to be present at all public court proceedings related to the offense, unless thecourt determines that testimony by the victim would be materially affected if thevictim heard other testimony at trial," 42 U.S.C. 10606(b)(4).

In federal capital cases, victims who attend a trial are not disqualified from appearing as witnesses at subsequent sentencing hearings absent a danger of unfairprejudice, jury confusion, of the jury being misled, or as constitutionally required. (107) In other federal criminal cases, victims may be excluded from trial only asconstitutionally required, 18 U.S.C. 3510(a).

Past Proposals.

Almost from the beginning virtually every proposed amendment granted crime victims the right "not to be excluded" from related public proceedings: (108)

A victim . . . shall have the right[] . . . not to be excluded from, any public proceedings relating to the crime. S.J.Res. 3 (106th Cong.); H.J.Res.64 (106th Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have the right . . . not to be excluded from such public proceeding . . . .

It has been suggested that the phrase "not to be excluded" in the Amendment was originally used to avoid the claims that the Amendment entitled victims totransportation to relevant proceedings or to have proceedings scheduled for theirconvenience or to free them from imprisonment, S.Rept. 108-191 at 35-6; S.Rept. 106-254 at 31, S.Rept. 105-409 at 26. (109) In this it wouldbe unlike a defendant's right to attend. Yet like a defendant's right to attend, the use of the phrase has been thought to permitexclusion of the victim for disruptive behavior, excessive displays of emotion, and otherforms of impropriety for which a defendant might be excluded, Id.

Under existing law, the usual rationale for exclusion is to prevent victim/ witnesses from having their testimony colored by the testimony of other earlierwitnesses. (110) Victim exclusion is one of thefeatures of existing law that the Amendmentseeks to overcome. How its command may be implemented is less apparent. In singlevictim cases, both constitutional policies (victim's rights and defendant's due processrights) could be honored simply by having the victim testify first. The two policiesmight also be reconciled by refusing to allow attending victims to testify, since theright not to be excluded does not include the right to testify and the right to be hearddoes not extend to trial testimony. The issue might be resolved alternatively onvictim-defendant equality grounds. The defendant is constitutionally entitled toattend the entire trial even if he is ultimately to be a witness. The Amendment may beseen as an equalizer. If so, it may not preclude defense counsel from commenting upona victim's opportunity to color his or her testimony. (111)

The application of the "public proceeding" limitation may be as uncertain here as in the case of victim notification. There may be some question as to what standardsshould be used to determine whether proceedings should be considered "public" forpurposes of the Amendment and whether the public or confidential character ofproceedings is subject to judicial, legislative or administrative adjustments. A courtmight seek instruction from the law governing the rights of the public to attendjudicial proceedings.

A public trial is among the rights the Sixth Amendment promises the criminally accused. Even where the accused agrees to closed proceedings, First Amendment freepress interests may require open proceedings. When asked whether particularproceedings may be closed to the press, the courts have considered "whether the placeand process have historically been open to the press and general public . . . [and]whether public access plays a significant positive role in the functioning of theparticular process in question," Press-Enterprise Co. v. Superior Court (Press-EnterpriseII) , 478 U.S. 1, 8 (1986). When asked to close particular proceedings over the objectionsof the accused, the courts, using the standards developed in press access cases, havedemanded that "the party seeking to close the hearing must advance an overridinginterest that is likely to be prejudiced, the closure must be no broader than necessaryto protect that interest, the trial court must consider reasonable alternatives toclosing the proceeding, and it must make findings adequate to support the closure." (112)

There may be some related uncertainty over whether the Amendment's attendance right applies to historically public events that are now ordinarily held privately. Forexample, does the Amendment empower immediate family members of a murder victim tobe notified of and attend the execution of the defendant? Historically, capitalpunishment and other types of corporal punishment were publicly administered. (113) Victims and anyone else so inclined might attend. (114) Most state laws now call forexecutions to occur in the presence of official witnesses, rather than being conductedpublicly. Those who attend are either identified by statute (115) or their selection is leftto the discretion of prison authorities. (116) Ahandful permit two or three members of thevictim's immediate family to be present. (117) And in several, although the number ofofficial witnesses may be limited, prison officials enjoy relatively unlimited discretionwhich they would appear free to exercise to the benefit of victims or theirrepresentatives. (118) In cases involving hundredsor thousands of victims, conflicts mayarise should a defendant's privacy right to a dignified death by execution conflict withvictims' rights to attend.

Committee commentary indicates that the Amendment plays no role in what public proceedings can be closed even though that action denies victims notice, attendanceand allocution rights. It suggests that a victim has no ground to object if a decisionis made to close a traditionally public proceeding, "The amendment works no changein the standards for closing hearings, but rather simply recognizes that nonpublichearings take place," S.Rept. 108-191 at 34; S.Rept. 106-254 at 30; S.Rept. 105-409 at 25.

To Be Heard

Unlike the rights to notice and not to be excluded, the right to be heard is a right to participate. Proceedings at which it may be invoked are described with greaterparticularity in the Amendment. Although victim impact statements are a commonsentencing feature, victim participation elsewhere varies considerably fromjurisdiction to jurisdiction and according to the stage of the process at issue.

The Amendment affords victims the right "to be heard at public release, plea, sentencing, reprieve, and pardon proceedings" subject to a rule of reason. It does noton its face give them the right to be heard in closed proceedings or to be heard on otherpre-trial motions, at trial, perhaps on appeal, or with respect to related forfeiture orhabeas proceedings. The history of past, more narrowly drawn provisions indicatesthat the right may embrace all of these and more.

Contemporary Practices.

Public release (bail et al.).

At one time, the victim was not considered a legitimate participant in the bail hearing. In fact, neither the safety nor any other interest of the victim was thoughtto be a relevant consideration. Bail was a guarantee against suspect flight. That wasall. The amount of security required and the conditions imposed for pre-trial releasewere calculated solely to insure the courtroom presence of the accused at theappointed hour. (119) Most states had, and stillhave, right to bail clauses for noncapitaloffenses in their state constitutions. (120) Thosejurisdictions that did not have a right tobail clause had and have a prohibition against excessive bail, (121) like that found in theUnited States Constitution, that some read to include or herald a constitutional rightto bail even where none was explicitly granted. (122)

In many jurisdictions, the defendant-exclusive view slowly gave way to a recognition that public and individual safety are legitimate concerns for a judicialofficer to consider when deciding whether an accused should be released on bail, ormore often, the conditions placed upon the release of the accused. In some instances,the right to bail clause has been amended; (123) in some, the state courts have interpretedthe right to bail to include a witness protection and judicial integrity exception; (124) courts in still other states have held that the right to bail clauses permit imposingvictim or public safety conditions (125) and allowrevocation of bail if the conditions havebeen broken. (126)

Finally, the United States Supreme Court removed the cloud formed by the contention that a refusal to grant pretrial bail, because of the threat to public orindividual safety posed by the accused, might violate either the United StatesConstitution's excessive bail clause or its due process clauses or both. The Courtdeclared that neither clause bars legislative creation of a system that conditionspretrial release upon public safety as well as preventing flight. (127)

Only a few states expressly grant the victim the right to be heard at the defendant's bail hearing either specifically or under a general right to be heard at allproceedings. (128) A few more permitconsultation with the prosecutor prior to the bailhearing. (129) Most allow victims to attend. (130) And virtually all provide either thatvictims should be notified of bail hearings or that victims should be notified of thedefendant's release on bail. (131)

Under federal law, victims of alleged acts of interstate domestic violence or interstate violations of a protective order have a right to be heard at federal bailproceedings concerning any danger posed by the defendant. (132) In other federal cases,victims' prerogatives seem to be limited to the right to confer with the prosecutor, andnotification of, and attendance at, all public court proceedings. (133)

Plea Bargains.

Negotiated guilty pleas account for over ninety percent of the criminal convictions obtained. (134) Plea bargaining offersthe government convictions withoutthe time, cost, or risk of a trial, and in some cases a defendant turned cooperativewitness; it offers a defendant conviction but on less serious charges, and/or with theexpectation of a less severe sentence than if he or she were convicted following acriminal trial, (135) and/or the prospect of otheradvantages controlled, at leastinitially by the prosecutor - agreements not to prosecute family members or friends,or to prosecute them on less serious charges than might otherwise be filed; (136) forfeiture concessions; (137) testimonialimmunity; (138) entry into a witness protectionprogram; (139) and informant's rewards, (140) to mention a few.

For the victim, a plea bargain may come as an unpleasant surprise, one that may jeopardize the victim's prospects for restitution, one that may result in a sentence thevictim finds insufficient, (141) and/or one thatchanges the legal playing field so that thevictim has become the principal target of prosecution. (142)

Some state victims' rights provisions are limited to notification of the court'sacceptance of a plea bargain. (143) More often,however, the states permit the victim toaddress the court prior to the acceptance of a negotiated guilty plea (144) or to conferwith the prosecutor concerning a plea bargain. (145)

Sentencing.

At common law, victims had no right to address the court before sentence was imposed upon a convicted defendant. The victim's right to bring the impact of the crimeupon him to the attention of the court was one of the early goals of the victims' rightsefforts. The Supreme Court has struggled with the propriety of victim impactstatements in the context of capital punishment cases, ultimately concluding thatthey pose no necessary infringement upon the rights of the accused. (146) It is said thatpermitting victim impact statements serves several beneficial purposes: (1) to protectthe victim's interest in having the court order the defendant to make restitution, (147) (2)to increase the possibility that the sentence imposed will reflect the damage done andtherefore the seriousness of the crime, (148) (3)to balance the pleas for the defendantthat have traditionally been heard at that point, (149) and (4) to restore some level ofdignity and respect for the victim. (150)

Critics counter that the use of victim impact statements introduces irrelevancies into the sentencing process, (151) distorts therationale for sentencing thereby leadingto disparate results, (152) leads to putting thevictim on trial, (153) and in cases where thejury determines or recommends the sentence to be imposed, may be unfairlyinflammatory. (154)

Nevertheless, one of the most prevalent of victims' rights among the states is the right to have victim impact information presented to sentencing authorities. There is,however, tremendous diversity of method among the states and federal government. Many call for inclusion in a presentencing report prepared for the court in one way oranother, (155) often supplemented by a right tomake some kind of subsequent presentationas federal law permits. (156) Some are specificas to the information that may beincluded; (157) some permit the victim to addressthe court directly; others do not. (158)

Reprieves and Pardons.

The Constitution vests the President with "the power to grant reprieves and pardons for offences against the United States," U.S.Const. Art.II, ï¿½2, cl.1. (159) As amatter of administrative practice he is assisted by the Pardon Attorney in theDepartment of Justice. (160) Ordinarily, there isno hearing, public or otherwise, held todetermine whether the exercise of the federal pardoning power is appropriate. Suchhearings, however, are more common in the states where executive clemency is oftenmore narrowly defined. In a few, the power is vested in a pardon board. (161) More often,the Governor receives clemency recommendations from a pardon board. (162) Frequently,crime victims are entitled to be heard by the pardon board, (163) usually although notalways as a matter of right. (164)

Past Proposals.

In one form or another, past proposals gave victims the right to be heard before the accused was released on bail, before the court accepted a plea agreement, andbefore the court sentenced a convicted offender, and there were varying efforts topermit victim statements in parole hearings. (165) In the 106th Congress, pardonallocution appeared along with the other rights to be heard when the Senate JudiciaryCommittee reported out the resolution in the proposals. The Justice Departmentobjected on the grounds that it constituted "an unprecedented incursion on thePresident's power to grant executive clemency requests" and in some states uponsimilar powers vested in the governor. (166) Withthe pardon component, the allocutionrights in the 106th Congress proposals declared:

A victim . . . shall have the rights . . .

to be heard, if present, and to submit a statement at all such proceedings to determinea 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 extentthose rights are afford to the convicted offender. H.J.Res. 64 (106thCong.); S.J.Res. 3 (106th Cong.).

to . . . an opportunity to submit a statement concerning any proposed pardon orcommutation of a sentence. S.J.Res. 3 (106th Cong.) (asreported).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have the right to . . . reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings

SECTION 4. . . .Nothing in this article shall affect the President's authority togrant reprieves or pardons

Section 2 has been substantially rewritten. The differences are apparent. The reasonableness element which attached to the pardon rights has been added to theothers. References to parole proceedings and convict-equivalent rights havedisappeared, and a reference to reprieves has surfaced in their place. The right to beheard and make a statement on conditional release, plea and sentence has beenreplaced with the simple right to be heard on release, plea and sentence. The right tomake a statement concerning any proposed pardon or commutation of a sentence hasbecome the right to be heard at public reprieve and pardon proceedings.

Past offerings spoke of a reasonableness element in the right to be heard only with respect to matters of pardon and commutation ("to reasonable notice of and anopportunity to submit a statement concerning"). The explanation of reasonablenessin that context was brief:

The President, Governors, and clemency boards are also free to determine the appropriate way in [which] a victim'sstatement will be considered as part of the process. The fact that a victim objects to(or supports) a clemency application is not dispositive. Instead, the informationprovided by the victim will be considered along with other relevant information to aidthe decisionmaker in making the difficult clemency decision. S.Rept. 106-254 at35.

Written large across every stage of the criminal justice process, the reasonableness element seems to make the victim's views relevant but not dispositive. The same message may be found in the distillation of the right to be heard and submita statement down to the right to be heard. (167) This reasonableness element may alsogive the courts and administrators greater discretion over the circumstances underwhich the right is accommodated than would be possible in the form of a restrictionpermitted by the last sentence in section 2 of the Amendment ("These rights shall notbe restricted except when and to the degree dictated by a substantial interest in publicsafety or the administration of criminal justice, or by compelling necessity").

The reasonableness element may play a role in another matter. The right to be notified is limited to public proceedings "involving the crime." The right not to beexcluded is likewise limited to "such public proceedings [involving the crime]." Theright to be heard suffers no such limitation, at least not facially. Once avictim-offender nexus exists, a court might conclude that it was reasonable for avictim to be heard with regard to the release, plea bargain, sentence, or pardon issuesinvolving the offender, or even a potential witness, on charges otherwise totallyunrelated to the victim.

One hearing witness, however, foresaw the prospect of an opposite, more narrow, interpretation as a result of the changes. In his view, elimination of the reference tothe right to make a statement in favor of a simple right to be heard runs the risk thatthe courts will understand this as a right to make an oral statement before thetribunal. (168) Even under a standard ofreasonableness, this might lead to substantialadministrative inconvenience. (169)

At its most literal construction, the Amendment is likely to convey greater rights than victims enjoy in many, if not most, jurisdictions.

Public Release Proceedings.

Proposals once conveyed a right to be heard at public proceedings relating to a conditional release from custody and, to the extent the inmate enjoyed a right to beheard, at closed parole hearings. The Amendment simply conveys a right to be heardat public release proceedings. The clear implication is that under the Amendmentvictims have no right to be heard at closed parole hearings, regardless of whether theinmate has a right to be heard. (170)

On the other hand, the new formulation may open a wider range of proceedings to victim allocution. There was always some ambiguity over whether conditional releaseproceedings meant proceedings where release might be granted if certain conditionswere met before release or proceedings where release bound the accused or convictedoffender to honor certain conditions after release, or both. In any event, in bygoneproposals the Senate Judiciary Committee read "conditional" in the phrase " conditional release from custody ," as a word of limitation:

The amendment extends the right to be heard to proceedings determining a ' conditional release' from custody. This phraseencompasses, for example, hearings to determine any pretrial or posttrial release(including comparable releases during or after an appeal) on bail, personalrecognizance, to the custody of a third person, or under any other conditions,including pretrial diversion programs. Other examples of conditional release includework release and home detention. Its also includes parole hearings or their functionalequivalent, both because parole hearings have some discretion in releasing offendersand because releases from prison are typically subject to various conditions such ascontinued good behavior. It would also include a release from a secure mental facilityfor a criminal defendant or one acquitted on the grounds of insanity. A victim wouldnot have a right to speak, by virtue of this amendment, at a hearing to determine"unconditional" release. For example, a victim could not claim a right to be heard ata hearing to determine the jurisdiction of the court or compliance with the governingstatute of limitations, even though a finding in favor of the defendant on these pointsmight indirectly and ultimately lead to the 'release' of the defendant. Similarly,there is no right to be heard when a prisoner is released after serving the statutorymaximum penalty, or the full term of his sentence. There would be proceeding to"determine"a release in such situations and the release would also be withoutcondition if the court's authority over the prisoner had expired. S.Rept.106-254 at 32; S.Rept. 105-409 at 27.

Thus by removing the words "conditional" and "from custody," the Amendment perhaps should be understood to allow victims the right to be heard on most pre-trialmotions as well as most post-trial appeals and petitions, or at least any that mightresult in a release of the accused or the convicted offender from jeopardy. Forexample, it might support an argument that the Amendment gives victims the right beheard at trial by the trier of fact (judge or jury) on whether the defendant should orshould not be convicted on any of the charges at issue, i.e ., at least limited trialparticipation.

The Amendment affords the right only to a reasonable extent ("A victim . . . shall have the right to . . . reasonably to be heard at public release, plea, sentencing, reprieve,and pardon proceedings . . ."). In other contexts, the Amendment's reasonablenessdemands are standards of circumstance. What is reasonable is likely to depend uponthe circumstances of individual cases, a limitation of unknown implications.

The Amendment even if conservatively read represents an expansion of victims' rights in most jurisdictions. Its promise of the right to be heard in release proceedings inparticular is more generous than most, although victims' rights to have their interestsconsidered, to be notified, to attend, and in some instances to make presentations atbail proceedings appear more frequently in state statutes and court rules than wasonce the case.

Plea Bargains.

The Amendment assures crime victims of the right to reasonably be heard at proceedings where a plea bargain is accepted. The right only attaches to theacceptance of plea bargains in open court ( i.e. , at public proceedings). (171) The rightclearly does not vest a victim with the right to participate in plea negotiationsbetween the defendant and the prosecutor, which are neither public nor proceedings. By the same token, the right to be heard is not the right to decide; victims must beheard, but their views are not necessarily controlling. (172) It remains to be seen whetherthe existence of the right in open court will lead to more proceedings being closed toavoid the complications of recognizing the right.

Sentencing.

The Amendment guarantees crime victims the right to reasonably be heard at public sentencing proceedings. The language of the Amendment does not specify whatform may or must be used nor does it speak to permissible restrictions on length,content or other limitations that may come within the rule of reason. Neither does itexpressly identify any limitation activated by a conflict with rights of the defendant. Drafters may envision a legislative definition of these limitations, but the Amendmentmay confine such efforts to those marked by "a substantial interest in public safety orthe administration of criminal justice, or by compelling necessity." The right toreasonably be heard may come to be understood to mean the right to be heard underconditions and circumstances where the right is weighed against judicial andadministrative convenience or conflicting defendant interests.

The Senate Judiciary Committee, however, has continuous described this and similar language as somewhat more "victim-friendly." It has noted the language's dualfunction of giving sentencing authorities more complete information and of providingvictims with "a powerful catharsis," S.Rept. 108-191 at 37; S.Rept. 106-254 at 33; S.Rept.105-409 at 28. In light of this second purpose, "a victim will have the right to be heardeven when the judge has no discretion in imposing a mandatory prison sentence," Id . Inprevious reports, the Senate Judiciary Committee added immediately thereafter thatCongress and the states would nevertheless have the prerogative to limit victimstatements to relevant testimony, to define relevancy as they chose, and to otherwiselimit the length and content of victims' statements. (173) The Committee's description ofthe clause in the 108th Congress is much more restrained, more reminiscent of existinglaw:

State and Federal statutes already frequently provide allocution rights to victims. The Federal amendment wold help toinsure that these rights are fully protected. The result is to enshrine and perhapsextend the Supreme Court's decision in Payne v. Tennessee , 502 U.S. 808 (1991), recognizingthe propriety of victim allocution in capital proceedings. Victim impact statementsconcerning the character of the victim and the impact of the crime remainconstitutional. The Committee does not intend to alter or comment on laws existingin some States allowing for victim opinion as to the proper sentence . . . . The victim'sright is to be "heard." The right to make an oral statement is conditioned on thevictim's presence in the courtroom. As discussed above, it does not confer on victims aright to have the government transport them to the relevant proceeding. Nor does itgive victims any right to "filibuster" any hearing,. As with defendants' existing rightsto be heard, a court may set reasonable limits on the length of statements, but shouldnot require the victim to submit a statement for approval before it is offered. No suchrequirement is put on the defendant and none should b imposed on the victim. The DueProcess clause requires that the victim's statement not be "unduly prejudicial." At thesame time, victims should always be given the power to determine the form of thestatement. . . .

Even if not present, the victim isentitled to submit a statement at the specified hearing for the consideration of thecourt. The Committee does not intend that the right to be heard be limited to "written"statements, because the victim may wish to communicate in other appropriate ways. S.Rept. 108-191 at 38 (most internal citationsomitted).

Reprieves and Pardons.

Section 4 seems to limit the Amendment's impact on federal pardons ("Nothing in this article shall affect the President's authority to grant reprieves or pardons"). TheAmendment is likely to have little impact on federal practice, in any event since thefederal pardon process does not involve "public proceedings," and therefore victimswill continue to have no right to be heard with respect to a requested or contemplatedfederal pardon. On the other hand, its impact on the states would vary according tothe extent to which public proceedings are part of the pardon process.

Victim Safety

The Amendment identifies three victims' interests that adjudicative decision makers must take into consideration: victim safety, avoiding unreasonable delay, andjust restitution pursued in a timely manner. The legislative history to date may be readto indicate that the drafters understood the right to attach to decisions made byjudicial and administrative authorities in any adversarial setting. Victims' interestsmust be considered, but are not necessarily controlling.

In the case of victim safety, the decision whether to release an accused on bail and the conditions to be imposed upon release represent perhaps the obvious example ofdecisions where victims' safety must be considered. The right does not attach if thedecision to release the offender is simply a matter of administrative discretionexercised without the necessity of an adversarial proceeding. Thus, the right onlyattaches - with respect to release of an offender following full service of his or hersentence, or on furlough, or work release, or assignment to a half-way house, orfollowing civil commitment - if the jurisdiction provides for release pursuant to anadversarial proceeding. The right does not attach, for instance, to release pursuantto a presidential pardon that features no such proceedings. The range of proceedingswhere the right applies may be broader than past proposals envisioned since they werelimited to decisions concerning "conditional release."

Contemporary Practices.

Victim safety is generally recognized as a valid, and in some jurisdictions a required, pre-trial release consideration. (174) Itis mentioned far less frequently as aconsideration in post-conviction (probation, work release, parole, pardon) ornon-criminal release (release from civil commitment or juvenile custody)determinations, although public safety may be a factor in many of these instances. (175)

Past Proposals.

Three of the proposals in the 104th Congress assured victims of the right to "receive reasonable protection from physical harm or intimidation relating to theproceedings." (176) Each of the others prior tothe 107th Congress assured victims thattheir safety would be considered before conditionally releasing an accused fromcustody: (177)

A victim . . . shall have the right[] . . . to consideration for the safety of the victim in determining any conditional release from custody relating to the crime . H.J.Res.64 (106th Cong.); S.J.Res. 3 (106th Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have . . . the right to adjudicative decisions that duly consider the victim's safety.

The language here is new but many of the concepts are not. The change of the context within which victim safety must be considered - from "determinations" of"conditional release" to "adjudicative decisions" - seems to reflect both expansion andcontraction. The term "adjudicative decisions" conveys the sense of judicialdeterminations, of decisions made by a tribunal following an adversarial process. Definitely more confined than "determinations." On the other hand, removal of thequalifying "conditional release" phrase, seems to extend the right far beyond thepre-trial release context which that phrase might at first imply.

The testimony of witnesses at congressional hearings may confirm that the term "adjudicative decisions" is understood to mean "both court decisions and decisionsreached by adjudicative bodies, such as parole boards. Any decision reached after aproceeding in which different sides of an issue would be presented would be anadjudicative decision." (178) Thus, determinationslike federal pardon decisions that fellwithin the reach of the proposals in earlier Congresses appear beyond the reach of theAmendment, as long as they involve administrative and executive determinationsrather than adjudications.

The Senate Judiciary Committee meant the right in earlier proposals to apply broadly not only to pre-trial release determinations in criminal cases but todeterminations relating to civil commitment and post-conviction determinations aswell. (179) Thus, the elimination of the"conditional release" qualifications of pastproposals may be less significant than might appear simply on the face of the proposalsand the Amendment. Nevertheless, it does represent the elimination of a restriction. Victim safety, for example, may come to play a role in the permissible constraintsplaced upon the accused during the course of a trial.

What of the relative weight to be given victim safety? The phrase, "duly considered" or "due consideration" is probably less generous than "considered" or"consideration." Black's defines "due consideration" as the "degree of attentionproperly paid to something, as the circumstances merit ." (180) The courts have construedthe phrase "duly consider" in the context of various local federal court rules ofcriminal procedure. There the court's obligation to "duly consider" a request for aredacted docket in proceedings ancillary to a grand jury investigation demandsconsideration and an explanation if the request is denied. (181) Even before the additionof the "duly" limitation, victim safety was not thought to constitute either adispositive or necessarily a weighty factor, it was simply a factor. (182) And so itpresumably remains.

Speedy Trial

The second of the victims' interests that must be considered by at least some decision makers is consideration of the victim's interest in avoiding unreasonabledelay. Some have expressed the concern that this vests victims with the right to beheard on scheduling decisions and consequently the right to notification andappearance at proceedings where such matters are raised. The concern may beunfounded in light of the Amendment's specific references to points of attachment fora victim's right to notice, not to be excluded, and to be heard. The legislative historysuggests that perhaps the standards used to judge the defendant's constitutionalright to a speedy trial govern here as well.

Contemporary Practices.

The United States Constitution guarantees those accused of a federal crime a speedy trial; (183) the due process clause of theFourteenth Amendment makes the rightbinding upon the states, (184) whose constitutionsoften have a companion provision. (185) Theconstitutional right is reenforced by statute and rule in the form of speedy trial lawsin both the state and federal realms. (186)

"Ironically, however, the defendant is often the only person involved in a criminal proceeding without an interest in a prompt trial. Delay often works to the defendant'sadvantage. Witnesses may become unavailable, their memories may fade, evidence maybe lost, changes in the law may be beneficial, or the case may simply receive a lowerpriority with the passage of time." (187)

Until recently, victims had no comparable rights, although their advocates contended they had a very real interest in prompt disposition. Some victims sought toput a traumatic episode behind them; some wanted to see justice done quickly; somehoped simply to end the trail of inconveniences and hardship that all too often fell totheir lot as witnesses. (188)

A few states have since enacted statutory or constitutional provisions establishing a victim's right to "prompt" or "timely" disposition of the case in one formor another. (189) The federal statutory victims'bill of rights, 42 U.S.C. 10606, does notinclude a speedy trial provision, but Congress has encouraged the states to include aright to a reasonably expeditious trial among the rights they afford victims. (190)

Past Proposals.

In the beginning, proposals sometimes spoke of a victims' speedy trial right, (191) andin other instances preferred to describe it as the right to have " proceedings resolvedin a prompt and timely manner." (192) Proposalsin the 105th Congress continued the split,some focused on the beginning and completion of trial; others on a finality of theproceedings. (193) In the following Congress, theproposals all called for "considerationof the victim's interest in a trial free from unreasonable delay." (194) In this form, theright was one relevant only in a trial and pre-trial context. The proposals seemed tocarry the implication that the right could only be claimed in conjunction with otherproceedings ( e.g., "considered" in the context of a defense or government motion for acontinuance but not a defendant's motion for a new trial), but not necessarilyproviding grounds for a free standing victim's motion when the question of timing wasnot otherwise before the court:

A victim . . . shall have the right[] . . . to consideration of the interest of the victim that any trial be free from unreasonable delay. S.J.Res. 3 (106th Cong.);H.J.Res. 64 (106th Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have . . . the right to adjudicative decisions that duly consider the victim's . . . interest in avoiding unreasonable delay

Some of the words are new. The phrase "adjudicative decisions" has replaced "trials" and "proceedings"; "duly consider" appears instead of "consideration;" and"avoiding unreasonable delay" stands where "free from unreasonable delay" once was. Yet at least some of the concepts seem to have remanded constant. Reasonable delaysmust be countenanced; unreasonable delays tolerated only if they are outweighed byother interests. On the other hand, the term "adjudicative decisions" appears clearlymore inclusive than "trials" and although it carries judicial coloring perhaps it is notmuch different than "proceedings" except that there is no literal requirement that theadjudications be public. However, since only victims may assert their rights, section 3,and since victims are entitled to heard only at public proceedings, section 2, theAmendment's authors may have intended the adjudications at which victims' interestsmust be considered to be limited to public proceedings.

At least one Congressional witness has concluded that "[a]s used in this clause, 'adjudicative decisions' includes both court decisions and decisions reached byadjudicative bodies, such as parole boards. Any decision reached after a proceeding inwhich different sides of an issue would be presented would be an adjudicative decision," House Hearing V at 42 (statement of Steven J. Twist); see also, Senate Hearing IV at 193; House Hearing IV at 25.

So the decisions of state and federal tribunals must involve consideration of the interests that victims have in avoiding unreasonable delay. That still leaves severalquestions unanswered. Does it mean that victims have a right to be heard prior to anydecision that might either cause or reduce delay? Another hearing witness expressedconcern that the right to consideration of the interest might include the right to voicethe interest: "Does a crime victim have the right to object to the admission of evidenceon the ground that it might lengthen the trial?" House Hearing V at 81 (statement ofJames Orenstein). The Amendment's language does not necessarily create a right toassert the interest. This interest triggers a right to consideration. Other intereststrigger a right to be heard. Courts might conclude the difference is significant.

Or they may conclude that the victim has a right to be heard on the admissibility of evidence, not because of his or her interest in avoiding unreasonable delay butbecause of his or her right to be heard at "public release proceedings," as noted earlier. It may be considered significant that neither the government nor the defendant maybe allowed to bring the victim's interest to the attention of the tribunal, since in thewords of the Amendment elsewhere, "[o]nly the victim or the victim's lawfulrepresentative may assert the right established by this article."

Does a victim always have a recognizable interest in avoiding all unreasonable delay or only in those unreasonable delays that do more than simply offend thevictim? Does a victim only have an interest entitled to due consideration when thevictim suffers some disadvantage because of the unreasonable delay? The answers maylie in what the courts consider unreasonable delay. In earlier versions, it has beensuggested that the test for reasonableness rests in the Supreme Court's speedy trialjurisprudence which weighs the "length of delay, reasons for the delay, defendant'sassertion of his right, and prejudice to the defendant." (195) The Senate JudiciaryCommittee continued to endorse that view in the 108th Congress, "In determining whatdelay is 'unreasonable,' the court can look to the precedents that exist interpretinga defendant's right to a speedy trial, S.Rept. 108-191 at 40.

Restitution

The third victim interest entitled to consideration under some circumstances involves consideration of restitution claims. The Amendment is very different frompast proposals. It does not establish a right to restitution in so many words. It doesnot explicit convey a right to have proceedings reopened for failure to accommodatea victim's right to restitution. Instead for the first time it speaks of just and timelyclaims to restitution, two concepts which could be subject to several interpretations.

Contemporary Practices.

Every jurisdiction authorizes its courts to order convicted defendants to pay victim restitution. (196) Each jurisdiction,however, addresses distinctly questions ofwhen if ever restitution is mandatory; the extent to which restitution orders areproperly subject to plea agreements; whether restitution is available for injuriescaused by acts of juvenile delinquency; which victims are entitled to restitution; whatpriority, if any, restitution takes over forfeiture of the defendant's assets or hispayment of criminal fines; and more. (197)

Past Proposals.

The first victims' rights proposals promised either a right "to an order of restitution from the convicted offender," (198) ora right "to full restitution from theconvicted offender." (199) Subsequent proposalsopted for the right to an order version. (200) The proposals appeared to make restitution orders mandatory as a matter of right. Thescope of the right was unstated. Although the proposals applied to juvenileproceedings, the use of the term "convicted offender" might have been construed tolimit their restitution command to criminal convictions and therefore not reachfindings of delinquency. (201)

Restitution orders in a nominal amount or subject to priorities for criminal fines or forfeiture or other claims against the defendant's assets might have seemedinconsistent with the decision to elevate mandatory victim restitution to aconstitutional right. Yet the Senate reports concluded that the proposal did "notconfer on victims any rights to a specific amount of restitution, leaving the court freeto order nominal restitution . . . . The right conferred on victims [was] one to an 'order'of restitution. With the order in hand, questions of enforcement of the order and itspriority as against other judgments [were] left to the applicable Federal and Statelaw," S.Rept. 106-254 at 37; S.Rept. 105-409 at 31.

The Senate reports, however, have continuously suggested that the right might include the right to a pre-trial restraining order to prevent an accused fromdissipating assets that might be used to satisfy a restitution order, S.Rept. 108-191 at41; S.Rept. 106-254 at 37; S.Rept. 105-409 at 32. The right also might have extended toprevent dissipation in the form of payment of attorneys' fees for the accused, since theaccused has only a qualified right to the assistance of counsel of his choice. (202)

Proposals in the 106th Congress provided:

A victim . . . shall have the right[] . . . to an order of restitution from the convicted offender. S.J.Res. 3 (106th Cong.); H.J.Res. 64(106th Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have . . . the right to adjudicative decisions that duly consider the victim's . . . interest in . . . just and timely claims torestitution from the offender

This appears to be a fairly dramatic withdrawal from the position taken in the proposals of other Congresses. What was a right to a restitution order has become theright to consideration of just and timely victims' claims, appropriate to thecircumstances, weighed against the interests of others, and perhaps only applicableduring proceedings on other matters. As long as the victim's interest in just restitutionwhen asserted in a timely manner is recognized, the Amendment might appear to leavethe law of restitution unchanged. In those jurisdictions where restitution isdiscretionary rather than a matter of right, a victim's interest in restitution appearsto be a factor that must be considered - not a controlling factor, simply a factor.

Others see the language differently. Speaking of this portion of the Amendment, one commentator offered an example to illustrate its reach:

Jane Doe was beaten and raped in a remote wooded area of Vermont. . . . Her injuries were extensive. . . . When her case wasresolved by way of a plea bargain she was not given the right to speak before the court. Incredibly, the sentence imposed did not order the criminal to pay restitution. Todayhe earns $7.50 an hour making furniture inside the prison walls - and none of it goes toher for her damages and injuries because it was not part of the criminal sentence. If thisprovision had been the law, Jane would today be receiving restitution payments eachmonth. House Hearing IV at 27 (statement of Steven J.Twist).

The implication is that in horrific cases, victims have a right to restitution without reference to any other factors. Yet insertion of the word "just" for the first time inthe restitution component of the Amendment presumably calls for consideration ofsuch factors when appropriate. Moreover, it probably precludes restitution claims bythe "ripped-off" drug dealer or others victimized in the course of their own illegalconduct at least in some circumstances. (203)

Past proposals explicitly allowed victims to reopen final proceedings in vindication of their right to restitution. That language is gone and in its place is areference to "timely" claims to restitution. The implications are obvious, but thestatement quoted above seems to suggest that "timeliness" may be judged by the dateof the injury, the date of sentencing, or the date on which the offender has theresources to begin paying restitution ("Today [the offender] earns $7.50 an hour makingfurniture inside the prison walls - and none of it goes to her for her damages andinjuries because it was not part of the criminal sentence. If this provision had been thelaw, Jane would today be receiving restitution payments each month").

Legislative Authority

Section 4 vests Congress with the power to enforce the Amendment through appropriate legislation. In addition, the legislative history points out that, subject toCongress' pre-emptive legislative prerogatives, the state legislatures share withCongress the authority within their own domains to restrict victims' rights in the nameof a substantial interest in public safety or the administration of criminal justice orin response to a compelling necessity. They also continue to enjoy fundamentalauthority to outlaw new forms of misconduct. It is somewhat unclear whether theymay legalize conduct which they had outlawed when the Amendment went into effect. For example, does the Amendment permit a state that outlaws solicitation of variousviolent crimes to reduce the extent of its basic victims' rights coverage by repealingits proscription on solicitation - other than for purposes of public safety, theadministration of criminal justice or compelling necessity? Neither the language ofthe Amendment nor its legislative history seem to provide any clear answer.

Contemporary Practices.

The grant of legislative implementing authority may shield against the appearance of the unexpected and undesirable consequences discovered after ratification of aconstitutional amendment. The difficulty of amending the Constitution argues for alegislative safety valve. Of course, this argument loses considerable force when oneof the principal reasons for enacting a constitutional amendment rather than merelyenacting a statute is to ensure that the rights it grants are not easily denied ordiluted.

One of the perils implicit in opting for extensive legislative powers is the prospect of unfulfilled promises. It is certainly possible to draft a generally wordedconstitutional amendment in anticipation of future legislative refinements. And thesemay be forthcoming. But it may also happen that the refinements must be laboriouslycrafted through the courts because legislative resolution proves either unattainableor less than universally appealing.

Past Proposals.

Early proposals granted Congress and the state legislatures the power to enact implementing legislation within their respective jurisdictions. (204) Over time, some of theproposals began to expand the explicit legislative authority of Congress (205) and thento constrict the explicit legislative authority of the states. (206)

The Senate report in the 105th Congress explained, however, that the loss of state legislative authority was less sweeping than it might have appeared. It asserts that thepower to define the class of victims to whom the proposal would apply was byimplication to be shared by Congress and the states. (207) Subject to preemptive federallegislation, the states were to be permitted to paint the scope of the amendment asbroadly and perhaps as narrowly as they chose. (208) Some Committee members weretroubled by this resolution; (209) some skepticalthat it could hold sway. (210)

Proposals further described legislative authority by limiting the power to curtailthe rights they explicitly established:

Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest.

This intriguing sentence has appeared in one form or another in several proposed amendments in the past. (211) In the evolutionof the permissible restrictions, the firstproposals granted the Congress and the states authority to "implement" in someinstances, (212) "to enforce" in others, (213) and "to enforce" and create exceptions "forcompelling reasons of public safety" in still others. (214) The diversity continued in the105th Congress, when some of the proposed amendments vested the states and Congress(or simply the Congress) with authority to implement and enforce and some simply withthe power to enforce; in either case, attendant authority to createexceptions-whether in the "public interest" or for "public safety or judicial efficiency"or in the name of a "compelling interest"-became more common. (215)

Proposals in the 106th brought uniformity. There were no references to state authority, gone was any express Congressional authority to "implement," onlyCongress' enforcement authority survived. Exceptions could be made but only forreasons of compelling interests. (216) Departurefrom the requirement of earlier versionsthat exceptions be "enacted," implied that exceptions might be crafted eitherlegislatively or judicially.

The use of the term "compelling interest," on the other hand, suggested that the authority to create exceptions might be fairly limited. The Senate report on theversion of S.J.Res. 44 where the language first appeared seemed to confirmboth suggestions. (217) Although the reportidentified one unusual (courtroomattendance rights in a case with hundreds of victims) (218) and two commonplacesituations (right to release notification in domestic and gang violence cases) (219) underwhich exceptions might be warranted, several Committee members found the"compelling interest" standard too restrictive. (220) The Justice Department raised thesame objection. (221) Others might havequestioned whether the standard's amorphousnature made it unsuitable. (222)

The relevant portions of the proposals in the 106th Congress declared:

A victim of a crime of violence, as those terms may be defined by law, shall have the rights . . . . S.J.Res. 3 (106th Cong.).

The Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created onlywhen necessary to achieve a compelling interest. H.J.Res. 64 (106th Cong.);S.J.Res. 3 (106th Cong.).

Amendment in the 108th Congress.

SECTION 4. Congress shall have the power to enforce by appropriate legislation this article. . . .

SECTION 2. . . . These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminaljustice, or by compelling necessity.

In the 108th, some uniformity continues, the states are not mentioned, Congress enjoys explicit legislative authority to enact enforcement mechanisms (but not tomake implementing fixes), but the number of exceptions has grown to include publicsafety, the administration of criminal justice, and compelling necessity. Although, thephrases "substantial interest", "public safety", "administration of criminal justice",and "compelling necessity" probably cannot be considered terms of art, they appearwith varying degrees of regularity in statute and case law.

"Substantial interest" surfaces perhaps most frequently in the application of the Central Hudson test. The regulation of commercial speech is subject to an intermediatelevel of First Amendment scrutiny under a four part standard initially articulatedin Central Hudson Gas & Electric Corp. v. Public Service Comm'n , 447 U.S. 557, 566, 569(1980)(emphasis added): "At the outset, we must determine whether the expression isprotected by the First Amendment. . . . Next, we ask whether the asserted governmentalinterest is substantial . If both inquiries yield positive answers, we must determinewhether the regulation directly advances the governmental interest asserted, andwhether it is not more extensive than is necessary to serve that interest." (223) OneCongressional witness has asserted that "substantial interest" as used in theAmendment is intended to incorporate the third and fourth prongs of the CentralHudson test, i.e. , that the government must not only demonstrate a substantialinterest but show how its action furthers that interest and that its action is no moreintrusive than necessary to protect the interest:

The 'substantial interest' standard is known in constitutional jurisprudence [ E.g., Central Hudson Gas & Ele.Corp. v. PublicService Comm'n of New York , 447 U.S. 557 (1980). ('The state must assert a substantialinterest to be achieved by commercial speech. Moreover, the regulatory techniquemust be in proportion to that interest.' Id. At 564. The interest must be clearlyarticulated and then closely examined to determine whether it is substantial. TheCourt's analysis at 569 is instructive on this point)] and is intended to be high enoughso that only 'essential' [Webster's New Collegiate Dictionary, 1161 (1977)('Substantial. . . 1 a: consisting of or relating to substance b: not imaginary or illusory: REAL, TRUEc: IMPORTANT, ESSENTIAL. . . .'] interests in public safety and the administration ofjustice will qualify as justifications for restrictions of the enumerated rights. SenateHearing V ; House Hearing V at 46 (statement of Steven T. Twist)(capitalization in theoriginal; footnotes of the original in brackets); see also, Senate Hearing IV at 197; House Hearing IV at 28.

The concept of "public safety" may be a bit more amorphous. The Constitution itself refers to public safety in the suspension clause ("The privilege of the writ ofhabeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it," U.S.Const. Art.I, ï¿½9, cl.2 (emphasis added)). In a broadersense, the phrase may refer to the basis under which the states may validly exercisetheir police powers, (224) or to "the welfare andprotection of the general public." (225) TheSupreme Court has recognized a "public safety exception" to the Miranda rule whichpermits admissibility of the statements of defendant in custody notwithstanding theabsence of Miranda warnings when the statements were elicited in the interest of publicsafety. (226) A more recent observation declaredthat "[w]here publication of privateinformation constitutes a wrongful act, the law recognizes a privilege allowing thereporting of threats to public safety ." (227)

There may be some question whether exceptions may be drawn to protect a single individual when no one else in threatened or to render safe areas from which thegeneral public is ordinarily excluded ( e.g. , prisons). One congressional witness hasespoused such a broad application:

In discussing the compelling interest standard of S.J.Res. 3, the Senate Judiciary Report noted, 'In cases ofdomestic violence, the dynamics of victim-offender relationships may require somemodification of otherwise typical victims' rights provisions. This [provision] offers theability to do just that . . . . [Moreover] situations may arise involving intergangviolence, where notifying the member of a rival gang of an offender's impending releasemay spawn retaliatory violence. Again, this provision provides a basis for dealing withsuch situations.'

'Public safety' as used here includesthe safety of the public generally, as well as the safety of identified individuals. [See Bartnicki v. Vopper , 532 U.S 514 (2001)(where a 'public safety' threat was to identifiedschool board members]. Senate Hearing V; House Hearing V at 46 (statement of StevenT. Twist); see also, Senate Hearing IV at 198; House Hearing IV at28.

The outer limits of the term "administration of criminal justice" seem even more uncertain. The Supreme Court apparently understands the "administration of criminaljustice" to describe judicial proceedings associated with the trial of criminal offenses,whether the phrase contemplates official activities ancillary to those proceedings isless clear. (228) One witness in the hearingstranslated the term to mean "the proceduralfunctioning of the [criminal trial] proceeding." (229) Another voiced concern over theimpact on prison administration of such a narrow reading. (230)

The Court has used the term "compelling necessity" in two environments: (1) todescribe the burden a party must bear when seeking disclosure of grand juryinformation, i.e. , "particularized need;" (231) and (2) to describe the burden the governmentmust bear to justify regulatory intrusion upon a fundamental constitutional right, i.e., "compelling interest." (232) Ineither case, the "compelling necessity" standard maybe less burdensome than the "substantial interest" standard that attaches to publicsafety restrictions and perhaps to restrictions in the name of the administration ofcriminal justice ("These rights shall not be restricted except when and to the degreedictated by a substantial interest in public safety or the administration of criminaljustice, or by compelling necessity"). (233)

When interpreting the Amendment, courts might favor the compelling interest option because it alludes to a governmental burden while particularized need is aburden ordinarily shouldered by a private party. On the other hand, the frequent useof "compelling interest" in earlier proposed amendments may indicate that the draftersswitched to "compelling necessity" with a different standard in mind. House witnessesfelt "compelling necessity" called for a demanding "strict scrutiny" standard. (234)

The Senate Judiciary Committee report in the 108th Congress briefly explains its understanding of the restrictions clause. It expects recourse to the clause will occuronly rarely and supplies three examples of when the clause might be called upon - inthe case of crimes with catastrophic consequences ("mass victim cases"); in domesticviolence cases; and in cases of "inter-gang violence," S.Rept. 108-191 at 41.

Many of the Amendment's rights are subject to a rule of reasonableness that seems to afford flexibility in mass victim cases. There is, however, no such explicitlimitation upon the right not to be excluded, and it is here that the Committee believesthe restriction clause might come into play. (235) The Committee is comparably precise inits observation that the clause might be invoked "where notifying the member of a rivalgang of an offenders' impeding release may spawn retaliatory violence," id. The gangexample may serve the added purpose of clarifying the scope of the Amendment's rightto reasonable and timely notice of the release or escape of an accused. When theCommittee identifies gang retaliation as an example of where the restriction clausemay prove beneficial, it suggests that otherwise concern for offender safety may notbe considered in formulating and implementing reasonable victim notificationprocedures.

This has obvious implications in a domestic violence situation and may be what the Committee had in mind when it offered the domestic violence example. Yet, the reportis cryptic as to when the use of the restrictions clause might be appropriate ornecessary in a domestic violence case. It simply declares that, "in some cases ofdomestic violence, the dynamics of victim-offender relationships may require somemodification of otherwise typical victims' rights provisions," id. The report doesconfirm the Committee's understanding of the clause's use of the terms "substantialinterest" and "compelling necessity," refers to the standards developed by the SupremeCourt, with the added observation "that defendants' constitutional rights may wellmeet this standard in many cases," S.Rept. 108-191 at 41-2.

The restriction clause mentions neither Congress nor the states. Earlier versions spoke of state authority in the area. The omission might be considered telling, or it maybe that such a construction is too wildly impractical to have been intended. It may bethat the restrictions clause may only be activated by Congress acting pursuant to theenforcement authority the Amendment confers in section 4. Perhaps, in the absence ofa statute no restriction may be found. On the other hand, the Committee report beginsits discussion of the restrictions clause by noting that the First Amendment notabsolute and that "[c]ourts interpreting the Crime Victims' Rights Amendment will nodoubt give a similar common sense construction to its provisions," S.Rept. 108-191 at 41. The implication is that the courts, in most instances at least initially the state courts,will be the ones to determine whether the circumstances in a particular case warrantthe application of the restrictions clause.

Enforcement

Section 4 of the Amendment empowers Congress to enact legislation to facilitate its enforcement. Section 3 insists that only victims and their representatives may seekto enforce rights under the Amendment; those accused of the crime may not. The reliefavailable may not include a claim for damages or the right to have completed trialsreopened to vindicate victims' rights. Other sections color the relief available bycircumscribing the Amendment's right to notice and to be heard with a rule of reasonand by allowing federal - and possibly state - executive, legislative and judicialbranches to restrict victim's rights in the face of substantial interests in public safetyor the administration of criminal justice or when faced with compelling necessity. Thehistory of the Amendment raises some question of the extent to which indigent victimswould be entitled to the assistance of appointed counsel to assert their rights.

Contemporary Practices.

Most victims' rights statutes and state constitutional amendments limit the means available to enforce them. No jurisdiction seems to have outlawed the failure toafford victims' rights. The denial of a victim's rights does not appear to expose anyofficial to criminal liability. (236) Moreover,officials commonly enjoy immunity fromcivil liability, either directly or by provisions that deny that the victim's rights giverise to a cause of action for their enforcement. (237) Even without theseno-cause-of-action clauses, many victims' rights edicts expressly preclude revisitingdecisions in the criminal justice system in order to correct a denial of victims' rightsor have other provisions designed to prevent offenders from claiming the benefits ofvictims' rights. (238)

In contrast, federal law exposes those who violate rights guaranteed by the United States Constitution to both criminal and civil liability. (239)

Past Proposals.

Historically the enforcement sections of proposals to amend the Constitution have had at least four features. First, they grant victims standing to assert theirrights. Second, they deny defendant's prerogative of claiming the rights of victims. Third, as discussed above, they grant Congress and/or the state legislatures theauthority to enact enforcement legislation. Fourth, they have limited theenforcement options available to victims in the absence of legislation, and arguablylimited the legislative authority to craft enforcement mechanisms. They haveincluded no-cause-of-action clauses, clauses banning review of judicial decisions, andclauses limiting who might call for enforcement. (240) Proposals in the 106th Congresswere similar to predecessors, but opened the door for victims to revisit judicialdeterminations concerning restitution and bail or other forms of conditional release:

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 providegrounds to stay or continue any trial, reopen any proceeding or invalidate anyruling, except with respect to conditional release or restitution or to providerights guaranteed by this article without staying or continuing a trial. Nothingin this article shall give rise to a claim for damages against the United States, aState, a political subdivision, or a public official. H.J.Res. 64 (106thCong.); S.J.Res. 3 (106th Cong.).

The Senate Judiciary Committee anticipated that allowing victims to challenge decisions concerning bail, restitution, and future proceedings would pose nounacceptable threat to the finality of criminal proceedings (unlike the prerogative toan order to reopen, stay, or grant a continuance of a trial), S.Rept. 106-254 at 40. TheDepartment of Justice, however, objected to the prospect of a want of finality inrestitution cases, (241) and some members of theCommittee had earlier expressed concernover the provision's operation in bail cases. (242)

The Committee likewise anticipated that the no-damages clause would "prevent the possibility that the proposal might be construed by courts as requiring theappointment of counsel at State expense to assist victims, Cf., Gideon v. Wainwright , 372U.S. 335 (1963)(requiring counsel for indigent criminal defendants)," S.Rept.106-254 at41. (243) The Committee's observation issignificant because without it the courts mighteasily reach the opposite conclusion. Without it, the evidence seems to bespeak anintent to supply indigents with a legal representative at public expense. TheCommittee's citation to Gideon appears designed to point out that without thelimitation victims, like the accused, would be entitled to the assistance of counselduring proceedings related to the crime. (244) Without the observation, the due processand equal protection clauses might seem to require the appointment of counsel forindigent victims. Even the presence of the damage claim limitation alone might havebeen considered insufficient, since attorneys' fees are not ordinarily considered anelement of damages. (245) Moreover, if anegalitarian right to representation wereembedded in the victims' rights amendment it could be enforced by invoking theinjunctive or other equitable powers of the courts. This would be so even though theprospect of damages (with or without attorneys' fees) had been foreclosed. On theother hand, only a few of the states have seen the necessity to explicitly announcethat their comparable victims' rights laws do not include the right to appointedcounsel. (246)

Recall the proposals of the 106th Congress:

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 providegrounds to stay or continue any trial, reopen any proceeding or invalidate anyruling, except with respect to conditional release or restitution or to providerights guaranteed by this article without staying or continuing a trial. Nothingin this article shall give rise to a claim for damages against the United States, aState, a political subdivision, or a public official. H.J.Res. 64 (106thCong.); S.J.Res. 3 (106th Cong.).

Amendment in the 108th Congress.

SECTION 3. Nothing in this article shall be construed to provide grounds for a new trial or to authorize any claim for damages. Only the victim or the victim'slawful representative may assert the rights established by this article, and noperson accused of the crime may obtain any form of relief hereunder.

The Amendment is clearly not the same as its antecedent in the 106th Congress. It does continue to preclude new trials as an enforcement mechanism. It has replaced aban on causes of action for damages with a ban on claims for damages. Although any right to recover damages against the United States is often referred to as a claimrather than a cause of action, the courts seem unlikely to construe the change as onewhich exposes all but the United States to an action for damages without a moreexplicit indication of such an intent. (247) Thepreservation of the damage ban may beconsidered sufficient to bring with it the construction suggested for earlier bans tothe effect that they contained within them a proscription against requiring theappointment of counsel to assist victims to claim their rights. (248)

Gone from the Amendment is the previous repudiation of "grounds to stay or continue any trial, reopen any proceeding or invalidate any ruling." The Amendmentprecludes new trials and damage claims, but on its face seems to allow the courts toentertain victims' petitions to enforce their rights in virtually any other context. (249) At least one witness expressed reservations on this very ground. (250) Other sections ofthe Amendment, however, may alleviate these concerns.

Section 4 gives Congress the power to enact enforcement legislation. Comparable powers have been said in the past to reside in the states. (251) Section 2 may supply eitheran alternative or supplemental basis for limiting victim's remedies to retrospectiverelief. It bars legislation or judicial action in derogation of the rights that theAmendment creates " except when and to the degree dictated by a substantial interestin public safety or the administration of criminal justice, or by compelling necessity." Refusing to reopen completed judicial proceedings or to entertain disruptiveinterlocutory appeals may be precisely the kind of exception in the name of thesubstantial interests in the administration of criminal response that the sectionenvisions.

Moreover, Section 2 is often more circumspect in the rights it grants than were some of the past proposals. Section 2 cabins the right to heard under a rule ofreasonableness ("the right[] . . . reasonably to be heard at . . . proceedings'), where onceno such express limitation could be found. Victims could once have anticipated thepromise of "right [] to an order of restitution" and of the opportunity to contest afterthe fact any failure to honor that right, H.J.Res. 64/S.J.Res. 3(106th Cong.). The authors of the Amendment's Section 2 decide instead to offer victims"adjudicative decisions that duly consider [their] . . . interest in just and timely claimsto restitution." The concern expressed by the Department of Justice in connection withproposals in the 106th seems have been addressed by the change.

Section 3 of the Amendment has another modification of interest. It words negatively the clause that once granted victim standing: "Only the victim or thevictim's lawful representative may assert the rights established by this article." Thishas been characterized as a grant of victim standing, (252) but it seems to say more. Firstcoupled with the clause that follows ("no person accused of the crime may obtain anyform of relief hereunder"), it appears to bar defendants (unless they are also victims)from claiming the Amendment as either a sword or shield. Second, it makes it difficultfor the government to claim the Amendment on behalf of victims, or at least on behalfof individual victims. Third, it implies a right to have a lawful representative, andperhaps by operation of the equal protection clauses of the Fifth and FourteenthAmendments, for indigent victims to have a representative appointed. (253)

The final clause in Section 3 declares that, "no person accused of the crime may obtain any form of relief hereunder." This seems to mean an individual may not claimthe rights of one whom he victimizes. The presence of the term "the crime," however,indicates that an individual may be entitled to the Amendment's benefits as victim ofone crime notwithstanding the fact that he or she has been accused or convicted of adifferent offense.

References to "a person accused of the crime" rather than "the offender" raises the question of whether the ban (on an accused obtaining any form of relief under theAmendment) disappears upon conviction when the offender is no longer the accused.

But a person accused of the crime and subsequently either convicted or acquitted may still accurately be described as "the accused," yet the individual may still accuratelybe described as "the person accused." The first is a statement of current status; thesecond a statement of historical fact. Later courts, however, may conclude that thedistinction was not intended.

Effective Date

The Amendment goes into effect 180 days after ratification by the states. There is some question whether the Amendment applies to all proceedings and decisionsoccurring after the effective date or only to those involving crimes occurring afterthe effective date.

Contemporary Practices.

Constitutional amendments become effective upon ratification by three-fourths of the states, U.S.Const. Art. V. The Constitution does not mention any period of timewithin which three-fourths of the states must ratify, but most proposed amendmentsinsist upon ratification within seven years. Like any other provision, the constitutionalprovisions for ratification are subject to amendment. Proposed amendments notinfrequently include a delayed effective date in order to allow for the passage ofimplementing legislation.

Past Proposals.

The first victims' rights proposals called for ratification within seven years as part of their enacting clauses. (254) One madeit expressly applicable to all proceedingssubsequent to ratification rather than to proceedings relating to crimes committedafter ratification, S.J.Res. 65 (104th Cong.)("The rights established by thisarticle shall be applicable to all proceedings occurring after the ratification of thisarticle"). Each successive proposal brought these two elements with it (seven yearratification and application to proceedings rather than to crimes occurring afterratification). They each added a third element, a 180 day delayed effective date. (255)

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 thefollowing article is proposed as an amendment to the Constitution of the UnitedStates, which shall be valid to all intends and purposes as part of the constitutionwhen ratified by the legislatures of three-fourths of the several States, within sevenyears from the date of its submission by the Congress.

SECTION 4. This article shall take effect on the 180th day after ratification of this article. The right to an order of restitution established by this article shall not applyto crimes committed before the effective date of this article.

Amendment in the 108th Congress.

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 thefollowing article is proposed as an amendment to the Constitution of the UnitedStates, which shall be valid to all intends and purposes as part of the constitutionwhen ratified by the legislatures of three-fourths of the several States, and whichshall take effect on the 180th day after ratification of this article. (256)

SECTION 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the severalStates within seven years from the date of its submission to the States by the Congress.This article shall take effect on the 180th day after thedate of its ratification . (257)

The House and Senate revisions of the Amendment differ only in that the House includes its effective provision in the enacting clause and the Senate places it section5. It seems a distinction without a difference. Substantively, the 180 day effective dateno longer carries the restitution order exception found in some of the earlierproposals. The special exception may have been thought unnecessary after the timelessand unqualified right to a restitution order was abandoned in favor of a right to dueconsideration of timely and just restitution claims.

On the other hand, past proposals and their accompanying legislative history made it clear that the Amendment applied to proceedings related to crimes occurring afterits effective date. (258) Courts may take specialnote of the Amendment's departure fromthat history, for the change seems to suggest that it is the date of the proceedings andnot the date of the victimizing crime that is critical now. The Senate JudiciaryCommittee apparently concurs for it goes out its way to document its agreement withthe courts that have found no ex post facto impediment to the retroactive applicationof restitution liability changes. (259) Thedifficulties associated with notification rightsof the victims of crimes committed decades ago could be considerable.