[Senate Hearing 106-269]
[From the U.S. Government Publishing Office]
S. Hrg. 106-269
A PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME VICTIMS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
S.J. Res. 3
A BILL PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
TO PROTECT THE RIGHTS OF CRIME VICTIMS
__________
MARCH 24, 1999
__________
Serial No. J-106-10
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
61-438 CC WASHINGTON : 2000
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1, 2
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...57, 59
Ashcroft, Hon. John, U.S. Senator from the State of Missouri..... 71
Feingold, Hon. Russell D., U.S. Senator from the State of
Wisconsin......................................................74, 76
Feinstein, Hon. Dianne, U.S. Senator from the State of California 77
Kyl, Hon. Jon, U.S. Senator from the State of Arizona............ 84
CHRONOLOGICAL LIST OF WITNESSES
Panel consisting of Steven J. Twist, assistant general counsel,
Viad Corp., Phoenix, AZ; Beth A. Wilkinson, Latham and Watkins,
Washington, DC; and Paul G. Cassell, professor of law,
University of Utah College of Law, Salt Lake City, UT.......... 8
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Cassell, Paul G.:
Testimony.................................................... 22
Prepared statement........................................... 25
Feinstein, Hon. Dianne:
Submitted Court Order, (cited as: 958 F.Supp. 512)........... 81
Twist, Stephen J.:
Testimony.................................................... 8
Prepared statement........................................... 11
Wilkinson, Beth A:
Testimony.................................................... 18
Prepared statement........................................... 20
APPENDIX
Proposed Legislation
S.J. Res. 3, a bill proposing an amendment to the Constitution of
the United States to protect the rights of crime victims....... 89
Questions and Answers
Responses of Steven J. Twist to questions from Senators:
Hatch........................................................ 93
Leahy........................................................ 93
Responses of Beth Wilkinson to questions from Senators:
Hatch........................................................ 96
Leahy........................................................ 96
Kyl.......................................................... 98
Responses of Paul Cassell to questions from Senator:
Leahy........................................................ 99
Additional Submissions for the Record
Article: U.S. Department of Justice, ``New Directions from the
Field: Victims' Rights and Services for the 21st Century''..... 108
Article: U.S. Department of Justice, ``The Rights of Crime
Victims--Does Legal Protection Make a Difference?,'' dated
December 1998.................................................. 151
Prepared statements of:
Douglas Beloof and Dean James Huffman on behalf of
Northwestern School of Law of Lewis and Clark College...... 162
James E. Doyle............................................... 163
Marsha A. Kight.............................................. 164
Marsha A. Kight in response to the testimony of Beth A.
Wilkinson.................................................. 167
Anne McCloskey............................................... 169
Karolyn V. Nunnallee......................................... 169
William T. Pizzi............................................. 171
Article prepared by William T. Pizzi and Walter Perron... 181
Roberta Roper on behalf of the National Victim's
Constitutional Amendment Network........................... 199
Joe Sikes on behalf of the Mothers Against Drunk Driving..... 201
Virginia E. Sloan on behalf of the Citizens for the
Constitution............................................... 202
Debra A. Tall on behalf of the Anne Arundel County, Maryland
Police Department.......................................... 215
Laurence H. Tribe, Tyler Professor of Constitutional Law,
Harvard University Law School.............................. 216
David L. Voth on behalf of the Crime Victim Services......... 218
Jan Withers on behalf of the Stephanie Roper Foundation and
Mothers Against Drunk Driving.............................. 219
Marlene A. Young on behalf of the National Organization for
Victim Assistance.......................................... 220
Bruce Fein on behalf of the Citizens for the Fair Treatment
of Victims................................................. 224
Letters to:
Senate Judiciary Committee from Helene Cantrell, Talisheek,
LA, dated Mar. 10, 1999.................................... 225
Senator Barbara Mikulski, from Kay Cummins, co-chair, Victim
Services Advisory Board, Montgomery County, MD, dated Mar.
10, 1999................................................... 225
Representative Paul Ryan, from Senator Joanne Huelsman, and
Eileen Connolly-Keesler, co-chairs, Governor's Council on
Domestic Abuse, Madison, WI, dated Mar. 11, 1999........... 226
Senator Kyl, from John Lyon, victim assistant, Department of
Health and Human Services, Montgomery County, MD, dated
Mar. 8, 1999............................................... 226
Senators Hatch and Leahy, from Sue Osthoff, director,
National Clearinghouse for the Defense of Battered Women,
Philadelphia, PA, dated Mar. 22, 1999...................... 227
Position Paper On Proposed Victim's Rights Amendment..... 227
Senators Hatch and Leahy, from Gordon J. Campbell, executive
director, Victim Services, New York, NY, dated Mar. 23,
1999....................................................... 231
Senator Hatch, from Donna F. Edwards, executive director,
National Network to End Domestic Violence, Washington DC,
dated Mar. 23, 1999........................................ 232
Senator Leahy, from Robert P. Mosteller, professor of law,
Duke University School of Law, Durham, NC, dated Mar. 23,
1999....................................................... 233
Article: The Unnecessary Victims' Rights Amendment,
Professor Robert P. Mosteller.......................... 234
Senator Leahy, from Lynne Henderson, professor of law, Diana
Universty, School of Law Bloomington, Bloomington, IN,
dated Mar. 23, 1999........................................ 247
Summary of Arguments Contained in ``Revisiting Victims'
Rights'' by Lynne Henderson Forthcoming, 1999 Utah Law
Review................................................. 247
Senator John Ashcroft, from Joseph R. Weisberger, chief
justice, Supreme Court of Rhode Island Chairperson, CCJ
Task Force on Victim Rights, Conference of Chief Justices,
Office of Government Relations, Arlington, VA, dated Mar.
19, 1999................................................... 251
S.J. RES. 3--A PROPOSED CONSTITUTIONAL AMENDMENT TO PROTECT CRIME
VICTIMS
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WEDNESDAY, MARCH 24, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Kyl, Ashcroft, Leahy, Kennedy,
Feinstein, and Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. We will begin our hearing this morning.
Today's hearing addresses the very important and complicated
issue of amending the Constitution to protect victims' rights.
I have long been an active supporter of efforts to provide
victims of crime with meaningful participation in the judicial
system. For example, as the principal author of the Federal
Mandatory Victim Restitution Act, I have worked hard to make
criminals pay for the damage their behavior causes.
For years, I fought for comprehensive habeas corpus reform
to provide finality of criminal convictions, an effort which
was finally successful in 1996 with the passage of the
Antiterrorism and Effective Death Penalty Act. And just last
week, I joined the Republicans on this committee in unveiling
the 21st Century Justice Act of 1999. This initiative supports
statutory changes to improve victim participation in Federal
criminal proceedings and to improve procedures for collecting
victim restitution awards.
In addition, the initiative recommends that Congress send a
victims' rights constitutional amendment to the States for
ratification. I intend to support a constitutional amendment to
protect victims' rights. I believe it is the right thing to do.
The question is what form should the amendment take.
Senators Kyl and Feinstein have introduced Senate Joint
Resolution 3, which provides the context for our discussions.
The text of S.J. Res. 3 happens to be identical to S.J. Res.
44, which the committee considered last year. Senators Kyl and
Feinstein, in my opinion, deserve continued credit for tackling
this landmark and very difficult set of issues. I also commend
Senator Biden for his work to date on this issue. He deserves
recognition for being willing to engage in this difficult
debate.
This is the fourth hearing that this committee has had on a
proposed victims' rights amendment. As I explained in my
additional views accompanying last year's committee report on
S.J. Res. 44, there are still issues that we need to examine. I
will not go into those issues here, but I ask that my
additional views be made part of the record and, without
objection, I will do that.
[The information referred to follows:]
Additional Views of Senator Hatch
I support consideration of a constitutional amendment to establish
a guarantee of rights for victims of crime. In considering the text of
S.J. Res. 44 last year, I provided these additional views to supplement
the Committee's Report in order to clarify several concerns I had with
the text of the proposed constitutional amendment to protect crime
victims. This year, S.J. Res. 3 contains the identical text of S.J.
Res. 44. Thus, I again submit my additional views for the record.
As an initial matter, I note that I have long been an active
supporter of efforts to provide victims of crime with meaningful
participation in the judicial system. For example, as the principal
author of the federal Mandatory Victims Restitution Act, I have worked
hard to make criminals pay for the damage their behavior causes. For
years, I fought for comprehensive habeas corpus reform to provide
finality of criminal convictions, an effort which was finally
successful in 1996 with the passage of the Antiterrorism and Effective
Death Penalty Act of 1996.
The Antiterrorism and Effective Death Penalty Act also included
provisions I sponsored to provide the victims of mass crimes like the
Oklahoma City bombing the opportunity to observe criminal trials
through closed circuit television. That law also included a provision
ensuring that the American victims of foreign terrorists could sue the
state sponsors of terrorist acts. I take the issue of victims' rights
seriously, as does all of Congress. This is evidenced by the speed at
which correcting legislation was enacted in the 105th Congress, when
two of the 1996 enactments proved inadequate to safeguard victim's
participation.\1\
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\1\ H.R. 924, the Victim Rights Clarification Act of 1997 (Pub. L.
105-6, codified at 18 U.S.C. Sec. Sec. 3510, 3481, 3593) was introduced
on March 5, 1997 and was signed by the President on March 19, 1997;
H.R. 1225, a bill to make a technical correction to title 28, United
States Code, relating to jurisdiction for lawsuits against terrorist
states, (Pub. L. 105-11) was introduced on April 8, 1997, and was
signed by the President on April 25, 1997.
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This year, I joined the Republicans on this Committee in unveiling
the ``21st Century Justice Act of 1999.'' This initiative supports
statutory changes to improve victim participation in federal criminal
proceedings and to improve procedures for collecting victim restitution
awards. In addition, the initiative recommends that Congress send a
victims' rights constitutional amendment to the States for
ratification.
However, there are few tasks undertaken by Congress more serious
than the consideration of resolutions proposing amendments to our
national charter. With a constitutional amendment, every word and
phrase must be scrutinized carefully. A poor choice of words or of
drafting could significantly alter the meaning of the amendment, lead
to years of unnecessary litigation, or even cause the amendment to fail
in its intended purpose. We must remember that, unlike a statute which
Congress can amend fairly easily, there is no such easy remedy to
correct a mistake in drafting a constitutional amendment. It is with
these thoughts in mind that I provide these additional comments on
specific concerns I continue to have with the text of S.J. Res. 3.
Scope of the Amendment: S.J. Res. 3 includes in its text an
important distinction--not reflected in the amendment's title--from
earlier drafts of the proposed amendment. Previous versions of the
amendment covered all victims of crime, but under S.J. Res. 3, only
victims of violent crimes, as defined by law, would receive
constitutional protection. This distinction, according to advocacy
groups, might remove as many as 30 million victims of non-violent
crimes from the amendment's safeguards.
I believe we must tread carefully when assigning constitutional
rights on the arbitrary basis of whether the legislature has classified
a particular crime as ``violent'' or ``non-violent.'' Consider, for
example, the relative losses of two victims. First, consider the plight
of an elderly woman who is victimized by a fraudulent investment scheme
and loses her life's savings. Second, think of a college student who
happens to take a punch during a bar fight which leaves him with a
black eye for a couple days. I do not believe it to be clear that one
of these victims is more deserving of constitutional protection than
the other. While such distinctions are commonly made in criminal
statutes, the implications for placing such a disparity into the text
of the Constitution are far greater.
I would hope, for example, that courts would not use Congress'
decision to exclude victims of non-violent crimes from the amendment as
evidence that such victims deserve less protection under state
amendments or statutes. The decision by the amendment's sponsors to
exclude victims such as the elderly woman in my example has led
important segments of the victims' rights community to oppose the
current version of this proposed amendment.
On the other hand, in one important respect, the scope of the
proposed amendment may be too broad, as well. It is important to note
that the proposed amendment does not specify at what point the rights
attach, or in other words, at what point a person becomes a ``victim,''
particularly in the absence of legislation. Is one a victim at the time
of the crime, at the time an arrest is made, when charges are filed
against a suspect, when an indictment or information is issued, or at
some later point in the process? This is particularly important to the
issue of dropped or uncharged counts against a defendant who has
committed multiple wrongs.
Frequently, criminal defendants are suspected to have committed
crimes for which they are never charged or for which charges are later
dropped, even though significant evidence may exist that the defendant
did indeed commit the crime. Do the victims of these crimes have rights
under the proposed amendment? If so, are they the same as the rights of
the victims of charged counts, and how will their exercise affect the
rights of victims of charged counts or of the defendant? Such victims,
of course, would have the same rights of notice and allocution relating
to conditional release, the acceptance of negotiated pleas (perhaps
substantially complicating plea bargains), and sentencing. While the
exercise of these rights is unlikely to collide with any defendant's
rights,\2\ the exercise of the right to an order of restitution for the
victim of an uncharged count may indeed collide with the rights of the
defendant.\3\ At a minimum, I believe that deeper consideration ought
to be given these matters before this amendment is sent to the States
for ratification.
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\2\ For instance, evidence admissible at a sentencing hearing or
conditional release hearing is not limited in the same manner as
evidence admissible at the guilt phase, and evidence of uncharged
counts or acquitted conduct may be used. The Supreme Court has made
clear for more than four decades that, as a matter of federal
constitutional law, a sentencing court is, and should be, free to
consider all relevant and reliable evidence. See, e.g., Witte v. United
States, 115 S. Ct. 2199, 2205 (1995); United States v. Tucker, 404 U.S.
443, 446 (1972); Williams v. New York, 337 U.S. 241, 247 (1949).
Evidence that a defendant has committed other crimes, even if they have
not been proved beyond a reasonable doubt, surely is relevant and is
not inherently unreliable. Unconvicted and even uncharged conduct may
also be admitted at sentencing. The Supreme Court long has approved use
of such evidence at sentencing. To identify just one area, the Supreme
Court twice has held--most recently, in a unanimous opinion--that a
district court may enhance a defendant's sentence if the court finds
that the defendant committed perjury on the stand when the defendant
testified. United States v. Dunnigan, 507 U.S. 87, 92-94 (1993); United
States v. Grgyson, 438 U.S. 41 at 50-51 (1978). Moreover, 18 U.S.C.
Sec. 3661 provides that ``No limitation shall be placed on the
information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
sentence.''
\3\ The Committee wrestled with this very issue during
consideration of the Mandatory Victims Restitution Act of 1996 (MVRA).
In the Committee Report describing what would become Section 209 of the
MVRA (Pub. L. 104-132, 110 Stat. 1240, 18 U.S.C. 3551 note), directing
the Attorney General to formulate guidelines to obtain restitution
agreements for uncharged counts in plea agreements, the Committee
noted:
This provision requires the Attorney General promulgate guidelines
for U.S. Attorneys to ensure that, in plea agreements negotiated by the
United States, consideration is given to requesting the defendant to
provide full restitution to all victims of all charges contained in the
indictment or information.
H.R. 665 * * * includes a provision authorizing the courts to order
restitution to parties other than the direct victim of the offense. The
House provision is intended to provide restitution to victims of so-
called dropped or uncharged counts. For example, if a defendant is
known to have committed three assaults, but is charged with, or pleads
to, only two of these offenses, the House bill would permit the court
to order the defendant to pay restitution to the victims of the
remaining offense as well.
The Committee had grave concerns about the constitutionality of the
House provision. It is the Committee's view that permitting the court
to order restitution for offenses for which the defendant has neither
been convicted nor pleaded guilty may violate the Due Process Clause of
the Fifth Amendment.
However, the Committee shares the concern underlying the House
provision that all an offender's victims receive restitution for their
losses. * * * The Committee believes the victim's losses deserve
recognition and compensation.
This provision is intended to address this problem by providing
guidance to U.S. Attorneys to guarantee that the concerns of these
victims are considered. The Committee is sensitive to the discretion
inherent in the prosecutorial function. * * * However, it is the
Committee's intent that this provision be implemented in a manner that
ensures the greatest practicable restitution to crime victims. S. Rept.
104-179, at 23.
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Requirement of Reasonable Notice of the Rights: I have significant
concerns about the necessity and wisdom of the last clause of Section I
of the amendment proposed by S.J. Res. 3, providing that covered
victims shall have the right ``to reasonable notice of the rights
established'' by the amendment. No other constitutional provision
mandates that citizens be provided notice of the rights vested by the
Constitution--not even the court-created Miranda warnings are
constitutionally required. In an analogous context, Justice O'Connor
noted that ``the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what the
individual can exact from the government.'' \4\ This clause in the
proposed victims' rights amendment would create an affirmative duty on
the government to provide notice of what rights the Constitution
provides, turning this formulation on its head.
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\4\ Lyng v. Northwest Indian Cemetary Protective Association, 485
U.S. 439 (1988), at 451 (quoting Sherbert v. Verner, 374 U.S. 398
(1963) at 412 (Douglas, J., concurring).
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Moreover, I do not believe that sufficient consideration has been
given to the practical aspects of this requirement. Which governmental
entity would be required to provide the notice? Would it be the police,
when taking a crime report? The prosecutor, prior to seeking an
indictment or filing an information? Or perhaps the court, at some
other stage in the process? At what point would the right attach--when
the crime is committed? When an arrest is made? And, what is
``reasonable'' notice? Does the term presume that the governmental
entity providing notice must have assimilated the Supreme Court's
latest jurisprudence interpreting victims' rights when giving notice? I
fear that this provision might generate a body of law which will make
Fourth Amendment jurisprudence simple by comparison.
Finally, Congress will be empowered by Section 3 of the proposed
amendment to enforce its provisions, presumably including the question
of how governmental entities must provide victims notice. Will this
permit Congress to micro manage the policies and procedures of our
State and local law enforcement agencies, prosecutors, and courts? I
believe greater consideration must be given to these questions before a
right to notice of the rights guaranteed by the amendment is included
in the Constitution.
Right to Reopen Certain Proceedings and Invalidate Certain
Proceedings: The language of Section 2, which grants victims grounds to
move to reopen proceedings or invalidate rulings related to, inter
alia, the conditional release of defendants or convicts, ought to be
given serious scrutiny. This provision in particular has perhaps the
greatest potential to collide with the legitimate rights of defendants.
All defendants and convicts have a constitutionally protected liberty
interest in conditional release, once such release is granted.
Permitting victims to move to reopen such proceedings or invalidate
such rulings, would, of course, necessitate the re-arrest and detention
of released defendants or convicts, likely implicating their liberty
interest. This is not to say, of course, that the safety and views of
victims ought not be considered in determining conditional releases, as
provided for in the proposed amendment. However, serious
reconsideration should be given to whether it is wise to include in the
amendment the right of victims to unilaterally seek to overturn release
decisions after the fact.
Enforcement Powers: Unlike previous versions of the proposed
amendment, which permitted States to enforce the amendment in their
jurisdictions, S.J. Res. 3 gives Congress exclusive power to ``enforce
this article by appropriate legislation.'' I believe that granting
Congress sole power to enforce the provisions of the victims' rights
amendment, and thus, inter alia, to define terms such as ``victim'' and
``violent crime'' and to enforce the guarantees of ``reasonable
notice'' of public proceedings and of the rights established by the
amendment, will be a significant and troubling step toward
federalization of crime and the nationalization of our criminal justice
system.
Most criminal justice questions are rightly left by the Tenth
Amendment to be decided by the States and the People through their
local governments. The Founders rightly determined that such questions
are best left to those levels of government closest to the people. Even
the bedrock defendants' rights included in the Constitution and
incorporated in the Fourteenth Amendment permit flexible application
adaptable to unique local circumstances. It is possible that the
Victims' Rights Constitutional Amendment will lack this flexibility
that is the hallmark of our federal system, and perhaps in the process
invalidate many State victims rights provisions. Such a prospect should
give us pause.
Establishment of a ``Compelling Interest'' Standard to Enact
Exceptions: I am also concerned that the proposed amendment
inappropriately establishes a particular standard of review to enact
inevitable exceptions to the amendment. First, I share the view of
others on the Committee, and that of the Department of Justice, that
the standard of a ``compelling'' interest for any exceptions to rights
enumerated by the proposed article may be too high a burden.
The compelling interest test is itself derived from existing
constitutional jurisprudence, and is the highest level of scrutiny
given to a government act alleged to infringe on a constitutional
right. The compelling interest test and its twin, strict scrutiny, are
sometimes described as ``strict in theory but fatal in fact.'' \5\ I
truly question whether it is wise to command through constitutional
text the application of such a high standard to all future facts and
circumstances.
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\5\ See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980).
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I do not believe that suggestions of utilizing another standard in
place of the compelling interest'' test offer a solution, however, for
such suggestions would replace one inflexible standard with another.
Moreover, the ``significant interest'' test that some have proposed is
uncharted waters. By adopting such a standard, we would be imbedding
into the Constitution a new and untried term, ensuring years of
litigation to resolve its meaning.
My view is that it is far better to leave the article silent on the
standard of review, rather than enshrine any particular level of
scrutiny in the text of the Constitution. Moreover, I believe it may
not be necessary to provide a clause permitting the enactment of
exceptions at all. It is axiomatic that no right is absolute, even
though no other right guaranteed by the Constitution explicitly permits
the enactment of exceptions. By way of example, the First Amendment
Free Speech guarantee has been interpreted to allow reasonable time,
place and manner restrictions.\6\ The courts have generally utilized a
pragmatic review in establishing whether a particular government act
was a valid exception to a guaranteed right, establishing standards of
review appropriate to the right and the circumstances. It may be best
to follow this course again, leaving exceptions to be developed in the
natural evolution of the law, rather than to attempt with one hand to
empower Congress (and only Congress) to provide exceptions, and with
the other hand constrain that power with a too-rigid standard.
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\6\ See, e.g., Clark v. Communi1y for Creative Non-Violence, 468
U.S. 288 (1984). See also Walz v. Tax Commissioner of New York, 397
U.S. 664, 668-9 (1970) (``The Court has struggled to find a neutral
course between the two Religion Clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme,
would tend to clash with the other.'')
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Reference to ``Immunities'': Section 5 of the proposed amendment
provides for the cases in which the ``rights and immunities''
established by the amendment will apply. In my view, a significant
problem with this section is the use of the term ``immunities,'' which
is new to this version of the amendment and does not refer to any
specific ``immunity'' named in the article. Indeed, the rest of the
article refers only to ``rights,'' and refers nowhere to
``immunities''. It is unclear to what this term is intended to refer.
Considering the problems courts have had in defining and applying this
term elsewhere in the Constitution, its use here is problematic, and
deserves further consideration.
In conclusion, I am strongly in favor of victims' rights, and
believe a federal constitutional amendment to be an appropriate
national response. ``Appropriate,'' however, does not, in my view, mean
``necessary.'' I believe that many of the objectives of the proposed
amendment could in fact be accomplished through a federal statute,
state statutes, or state constitutional amendments. Indeed, our
experience with state constitutional amendments is comparatively young.
It may well be better to allow the jurisprudence to develop on these
before we take the momentous step of amending the federal Constitution.
Finally, I note that a statutory approach would carry less peril of
upsetting established State constitutional amendments now taking root
to guarantee the rights of crime victims. A statute would also be more
readily amendable should experience dictate that changes are needed,
and, of course, would not preclude the later adoption of a
constitutional amendment if the statute indeed proved insufficient or
unable to protect the rights of victims. Indeed, this is the same
course we have taken with the protection of the flag from desecration--
we first enacted a federal statute, and, when the Supreme Court held it
unconstitutional, and thus clearly inadequate to the purpose, have
proposed amending the Constitution.
However, if an amendment is to be considered, we must be sure that
its wording is clear, exact, and unambiguous. The concerns I have
outlined here are but the most serious concerns I have with specific
provisions of S.J. Res. 3. They are, however, emblematic of the textual
problems I feel must be addressed before this amendment is approved by
Congress and submitted to the States for ratification.
The Chairman. Further, we should carefully consider the
numerous Federal and State statutes and the many State
constitutional provisions that currently grant rights to
victims. How the Federal courts have interpreted these
provisions in light of the Federal Constitution will illuminate
our inquiry into these issues, and I look forward to working
with my colleagues to address these issues in a meaningful way.
To help us achieve a consensus on the text of the
amendment, we have three experts in the field of criminal
rights who will testify today. We will hear from Professor Paul
Cassell, a legal scholar from my own home State of Utah who has
worked tirelessly for victims' rights. Professor Cassell has
also worked extensively with this committee on this amendment.
He is a person whom I have a great deal of confidence in and a
great deal of appreciation for, and teaches law in our
University of Utah.
We will also hear from Steve Twist, the former chief
assistant attorney general of Arizona and a longtime advocate
of victims' rights. In addition, Beth Wilkinson will testify.
Ms. Wilkinson is a former Federal prosecutor in the Oklahoma
City bombing case, and has also served in the Department of
Justice.
These experts will shed light on the issues inherent in
victims' rights, and I am sure that they share my view that
victims' rights are too important not to be addressed, and the
Constitution is too important not to be addressed carefully. I
look forward to today's hearing as a careful and considered
step toward a meaningful provision of victims' rights.
Now, shall we turn to Senator Feingold for the minority?
Senator Feingold. Mr. Chairman, I actually want to make a
statement in a few moments in proper order.
The Chairman. We are only going to have----
Senator Feingold. But I do want to make one comment about
the process and how this hearing came about. You and I have a
very good working relationship and I know that will continue,
but I do want to comment that this hearing was originally
noticed at 5:57 p.m., March 17th, just barely complying with
the Senate rule that hearings be noticed one week in advance.
It was noticed as a hearing of the Subcommittee on the
Constitution, on which I am the ranking member. Then a few days
later, we learned that the hearing would be in full committee.
I would like to make two brief points, Mr. Chairman. The
first and most important is that I do not believe we should be
bypassing the relevant subcommittee as we consider legislation
in this committee, and that is especially true when we are
considering a constitutional amendment. We should use the
committee process to deliberate and study the proposed
amendment and consider all the arguments. We presumably have
the subcommittee for a reason, and I don't understand why we
aren't using it in this case, or in any case actually where
amendments to the Constitution are going through the committee.
Second, I do think that there should be a little more
consultation and discussion in the scheduling of hearings. When
deadlines are flirted with as in this case, the usefulness of
the committee process is undermined. I think the 7-day process
is intended as a safeguard. It should not become the norm.
Even if formal notice does not go out until the last
minute, there is no great reason in my mind that members of the
appropriate subcommittees can't be given at least tentative
notice well in advance And especially in light of the length of
some of the materials that were submitted near the end, it is
very difficult to respond and prepare.
But, Mr. Chairman, obviously overall I think you
demonstrate enormous fairness on this committee, so all I can
do is make the plea that I think the subcommittee is the place
where this process should begin on any legislation, but in
particular when we are doing something as potentially profound
as talking about amending the U.S. Constitution.
Thank you, Mr. Chairman.
The Chairman. Well, I appreciate the Senator's comments,
and we will certainly do a better job in the future. I have to
say that I think we have done this three times at full
committee.
Senator Feinstein. Four times.
The Chairman. Is it four times? Both Senators Kyl and
Feinstein have reminded me of that, and so I decided to do that
this time, which I think is not out of line under the
circumstances. But the Senator raises some interesting points.
This is a very important issue and that is one reason why we
are holding it at the full committee. We will work on the
Senator's suggestions.
Well, with that, I think what we will do is when Senator
Leahy arrives, we will be happy to have any statement that he
cares to make put in the record. But at this point, let me call
on those who are going to testify here today.
Senator Kyl. Mr. Chairman, might I just make a unanimous
consent request to insert some additional statements and
letters into the record at this point?
The Chairman. We will put all statements in the record.
Senator Kyl. Thank you. This includes the statement of
Professor Laurence Tribe.
The Chairman. That will be fine. We will put them all in
the record, then.
[The statements and letters referred to are located in the
appendix.]
The Chairman. So our panel will be Professor Paul Cassell,
of the University of Utah College of Law. Steve Twist,
Assistant General Counsel of VIAD Corporation; he is former
chief assistant attorney general of Arizona and is on the
Executive Committee of the National Victims' Constitutional
Amendment Network. Beth Wilkinson is a partner in Latham and
Watkins and a former Federal prosecutor and Department of
Justice official, from Washington DC.
We will proceed in that order, then, if we can.
Senator Feinstein. Mr. Chairman, if I may, the authors of
this are not going to have an opportunity to make a statement?
The Chairman. Well, you can in the question period, yes. To
save time, we need to keep it generally, to the chairman and
the ranking member. But we will give you added leeway--how is
that--when the time comes up? In fact, it may be that I will
have to ask Senator Kyl to chair this in a few short minutes,
and I think he will be glad to give extra leeway--is that OK--
to the Senator from California?
Keep Kennedy right on the time limit.
Senator Kyl. In the spirit of Senator Kennedy, we will be
exceedingly liberal with our----
[Laughter.]
Senator Kennedy. I was going to say something nice about
your performance last Sunday morning. [Laughter.]
Senator Kyl. Well, isn't ``liberal'' a compliment, Senator
Kennedy? [Laughter.]
Senator Kennedy. We will work it out.
The Chairman. He was trying to be so nice to you.
Then if we will, we will begin with you, Mr. Twist, and
then Ms. Wilkinson, and then we will wind up with Paul Cassell.
I wanted you to go first so I could stay and hear you, but
if I don't, I will read what you have to say.
Go ahead.
PANEL CONSISTING OF STEVEN J. TWIST, ASSISTANT GENERAL COUNSEL,
VIAD CORP., PHOENIX, AZ; BETH A. WILKINSON, LATHAM AND WATKINS,
WASHINGTON, DC; AND PAUL G. CASSELL, PROFESSOR OF LAW,
UNIVERSITY OF UTAH COLLEGE OF LAW, SALT LAKE CITY, UT
STATEMENT OF STEVEN J. TWIST
Mr. Twist. Mr. Chairman, distinguished Senators, thank you
very much for the opportunity to speak again with the
committee. My name is Steve Twist. I am an assistant general
counsel at VIAD Corp., in Phoenix, formerly chief assistant
attorney general in Arizona, and a member of the board of
directors of the National Organization for Victim Assistance,
and on the Executive Committee of the National Victims'
Constitutional Amendment Network.
I was honored to be the principal author of the Arizona
constitutional amendment for victims' rights which the voters
adopted in my State in 1990. And as, Mr. Chairman, you noted, I
have been involved in the victims' rights movement for quite
some time.
It is especially fitting that today we remember the victims
of the Jonesboro, AR, school ground murders. One year ago
today, that crime once again seared he conscience of the Nation
with the ever-present reminder of the brutality of violent
crime. And it is fitting also that particularly today we focus
our attention on how victims of those brutal crimes suffer in
the aftermath at the hands of an all too often indifferent
justice system.
Since our last meeting, since your committee's last
hearing, citizens of three States in our country have had the
chance to speak at the polls on the question of whether or not
constitutional rights should be established in State
constitutions for crime victims.
In Montana last November, the voters spoke loudly, passing
an amendment to their constitution which referred to the rights
of victims for restitution by 71 percent of the vote. In
Tennessee, the voters adopted an amendment that again I am
proud to say is patterned largely after the Arizona State
constitutional amendment, and it was adopted by the voters in
Tennessee last November by 89 percent of the vote. And in
Mississippi, the voters went to the polls since our last
hearing, since your committee's last hearing, and adopted a
constitutional amendment for rights for crime victims by 93
percent of the vote.
Those States now join others to make 32 where voters have
had an opportunity to be heard not in a poll, but in a polling
booth, on the question of whether there ought to be
constitutional rights for crime victims. And overwhelming, in
State after State, voters have endorsed the principle of
constitutional rights for crime victims.
Some will review this developing State constitutional law
as a reason not to support a Federal constitutional amendment
for crime victims' rights. Indeed, James Madison was confronted
with the same argument by some that a Federal bill of rights
was unnecessary because the States had State versions of bills
of rights. And when confronted with this argument, Madison
replied succinctly, ``Not all States have them, and some are
inadequate.''
We relive this history here today. Not all States have
constitutional rights for crime victims, and some are not
adequate. Victims in Federal cases have none at all. If you
look at the record before the committee, you will see in
Professor Tribe's testimony, in earlier testimony from Attorney
General Reno and other representatives of the Justice
Department, time and again they repeat the admonition that
statutes are inadequate to the job of securing rights for crime
victims.
So what is to be done? This is now, as, Mr. Chairman, you
have pointed out, our fourth full committee hearing. We have
been involved with lawyers from the White House, lawyers from
the Justice Department, lawyers from U.S. attorneys' offices
around the country, prosecutors, local prosecutors, victims'
rights advocates, in extensive negotiations.
We are now on, I think, the 63rd draft of the amendment, in
each case responding to issues that have been raised. In every
case, we have modified or proposed language to meet every
objection. It is clear that the American people in staggering
numbers have demonstrated again and again at the polls that
they support the principle of constitutional rights for crime
victims. The President supports constitutional rights for crime
victims. The Attorney General supports them; scholars of high
renown and regard, practitioners in the field. In my State,
every single county attorney supported our State constitutional
amendment for crime victims' rights, and supports a Federal
constitutional right.
So we are at a crossroads again. I believe it is a call for
leadership. Leadership here requires crafting an amendment that
is worthy of the American people and worthy of our
Constitution. Mr. Chairman, I completely agree with you that we
have to be prudent and cautious whenever the subject of
amending our Constitution is raised. I think our efforts have
been prudent and cautious and deliberate. And I think, as a
consequence, we have a text now, S.J. Res. 3, that meets the
high standard that is required for constitutional amendments.
So we turn inevitably to the language. In section 1, the
amendment establishes meaningful rights for victims of violent
crime--rights to notice, to no exclusion from public
proceedings; the right to be heard at three critical stages,
whenever a release decision is going to be made, whenever there
is a proceeding regarding a plea agreement, and whenever there
is a proceeding involving sentencing; the right to notice of
escape or release; and, importantly, the right to simply have
the interests of the victim considered in a final conclusion
free from unreasonable delay, in restitution, and in their
rights to safety and to notice of their rights.
These are hardly radical. In fact, in reply to those who
say that the enactment of these constitutional rights would
have the effect of undermining our ability to do justice in the
criminal justice system, I ask them to look to the States, look
to States like Arizona and Utah and Michigan, where States have
had constitutional rights, where the right to be heard at a
plea agreement, where the right to be heard at sentencing, the
right to consultation with prosecutors, the right to notice of
proceedings, and the right to be present at those proceedings,
are all being respected. It has not undermined the
effectiveness of law enforcement or prosecution. Indeed, I
think the case is profoundly made that it has enhanced the
ability of the government to discharge its duty to be fair and
to do justice, justice to both the accused and to the victim.
As I say, the rights are hardly radical.
In section 2 and section 3, these meaningful rights are
made enforceable. With limited exceptions, Section 2
establishes a clear grant of standing for crime victims to
assert their rights, an unequivocal grant of standing. It also
establishes the unequivocal and unambiguous right of a victim
to go into court at the early stages of the case and seek
prospective orders that secure the victims' rights that are
granted in section 1.
This enforcement authority on the part of the victim is
buttressed by the section 3 language which grants to Congress
the power to enforce the amendment by appropriate legislation.
The exceptions to this enforcement power in section 2 are
important, but in the long run not meaningfully distractive of
the power of the victim to enforce the rights granted in
section 1. I know this is an issue about which there is still
some debate, but I think the language that we have worked out
on this point is the best possible compromise.
And so, Mr. Chairman and Senators, the question is now
where do we go? We are happy as a movement to entertain any
specific suggestions, and we are eager to work with the Chair
and members of the committee on any particular issues that
might be raised. And we think we have done that in good-faith.
I think there is now an obligation for us to turn to action on
the amendment, and we look forward to that in the near future,
Mr. Chairman.
Thank you.
The Chairman. Thank you, Mr. Twist. I think you have worked
very closely with the committee and we appreciate it.
[The prepared statement of Mr. Twist follows:]
The Crime Victims' Rights Amendment and Two Good and Perfect Things
by Steven J. Twist
Every good and perfect thing carries within it
the seeds of its own destruction through an
excess of its virtue. Seneca
At the soul of America's justice system lie two ``good and
perfect'' things: the principle that procedural and substantive rights
of the accused must be preserved and protected as a proper restraint on
the power of the state to infringe individual rights to life and
liberty; and the practice of public prosecution, based on the sense
that when a crime occurs, while it surely involves harm to a victim, it
also represents an offense against the state, the body politic, that
tears at the fabric of our peace and community and hence creates a harm
that is greater than simply the harm to the victim involved.
These two ``good and perfect things'' have served America well. The
first respects each individual as an end, as ``created equal, [and]
endowed by their Creator with certain unalienable Rights [to] Life,
Liberty and the pursuit of Happiness.'' \1\ Rights of habeas corpus
\2\, a speedy and public \3\ jury \4\ trial, to know the nature and
cause of the accusation \5\, to confront adverse witnesses \6\ and have
compulsory process \7\, to counsel \8\, due process \9\ and equal
protection \10\, and rights against unreasonable searches and seizures
\11\, double jeopardy \12\, self incrimination,\13\ excessive bail or
fines \14\, cruel and unusual punishments \15\, bills of attainder \16\
and ex post facto laws \17\, these rights form a zone of protection
around the law abiding, as well as the lawless, and serve to deter the
abuses of government power with which the history of the world is all
too familiar.
---------------------------------------------------------------------------
\1\ The Declaration of Independence para. 2 (U.S. 1776).
\2\ U.S. Const. art. 1, Sec. 9, cl. 2.
\3\ U.S. Const. amend. VI.
\4\ U.S. Const. art. III, Sec. 2, cl. 6.
\5\ U.S. Const. amend. VI.
\6\ U.S. Const. amend. VI.
\7\ U.S. Const. amend. VI.
\8\ U.S. Const. amend. VI.
\9\ U.S. Const. amend. V; XIV.
\10\ U.S. Const. amend. XIV.
\11\ U.S. Const. amend. IV.
\12\ U.S. Const. amend. V.
\13\ U.S. Const. amend. V.
\14\ U.S. Const. amend. VIII.
\15\ U.S. Const. amend. VIII.
\16\ U.S. Const. art. I, Sec. 9, cl. 3.
\17\ U.S. Const. art. I, Sec. 9, cl. 3.
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These fundamental rights \18\ formed the core of the essential
fairness shown to accused and convicted criminals that became, and
rightly so, a hallmark of our civilization. And through the course of
history, while certainly not always faithful to them, we have seen
their inexorable expansion even as we have seen repeated sacrifices at
their altar. And so Justice Cardozo could write in 1934:
---------------------------------------------------------------------------
\18\ Because of their fundamental nature, these rights have been
applied to the states via Fourteenth Amendment incorporation doctrine.
See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).
The law, as we have seen, is sedulous in maintaining for a
defendant charged with crime whatever forms of procedure are of
the essence of an opportunity to defend. Privileges so
fundamental as to be inherent in every concept of a fair trial
that could be acceptable to the thought of reasonable men will
be kept inviolate and inviolable, however crushing may be the
pressure of incriminating proof.\19\
---------------------------------------------------------------------------
\19\ Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 121
(1934).
And indeed there have been many times in the history of our country
when the ``pressure of incriminating proof has been ``crushing,'' yet
the criminal has been freed so that the ``fundamental privileges'' of
the law-abiding could be preserved.\20\
---------------------------------------------------------------------------
\20\ Arizona v. Hicks, 480 U.S. 321, 329 (1987) (``but there is
nothing new in the realization that the Constitution sometimes
insulates the criminality of a few in order to protect the privacy of
us all'').
---------------------------------------------------------------------------
The second ``good and perfect thing'' springs not from the rights
of the individual so much as from the rights of the community. Private
prosecutions, whereby the victim or the victim's relatives or friends,
brought and prosecuted criminal charges against the accused wrongdoer,
were the norm in the American justice system at the time of the
colonial revolution and the drafting of the Constitution.\21\ The
origin of private prosecution has been traced to early English common
law, but even today the civilized British retain the right privately to
bring criminal charges.\22\
---------------------------------------------------------------------------
\21\ John D. Bessler, The Public Interest and The
Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 515-21
(1994).
\22\ Id. at 515.
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In America, however, while some vestiges of private prosecutions
continue to this day \23\ there was a ``meteoric rise of public
prosecutions'' \24\ and the office of public prosecutor grew in
stature. The origin of the office remains an ``historical enigma,''
\25\ but it certainly is consistent with the views that we often
express about the nature of crime and its assault on the social
compact. Former Chief Justice Weintraub, of the New Jersey Supreme
Court, expressed a classic formulation of these views in 1971:
---------------------------------------------------------------------------
\23\ Id. at 518.
\24\ Id. at 516.
\25\ Id. at 517.
The first right of the individual is to be protected from
attack. That is why we have government, as the preamble to the
Federal Constitution plainly says. In the words of Chicago v.
Sturgess, 222 U.S. 313, 322, 32 S. Ct. 92, 93, 56 L. Ed. 215,
---------------------------------------------------------------------------
220 (1911):
Primarily, governments exist for the maintenance of social
order. Hence it is that the obligation of the government to
protect life, liberty, and property against the conduct of the
indifferent, the careless, and the evil-minded, may be regarded
as lying at the very foundation of the social compact.\26\
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\26\ State v. Bisaccia, 279 A.2d 675, 677 (1971).
To protect the social compact, government assumed the burden of
maintaining the social order and marshaled for itself the powers of
state to achieve its end. A virtuous goal. A ``good and perfect
thing.''
But are there in these two good and perfect things ``seeds of
destruction''? I suspect so, and to preserve the essential goodness of
them, I believe we must seek ways to temper the excesses of that
virtue.
In combination, these two ideas, the centrality of both defendants'
rights and state power, have been responsible for diminishing the role
of the victim to that of just another witness for the state; just
another piece of the evidence. In focusing on the centrality of the
rights of the accused we have forgotten about the rights of the
accuser. In stressing the centrality of the state, we have neglected
the pain of the injured. We do these things at our own peril. For a
justice system that abandons the innocent loses moral authority and
will soon lose the confidence of those it is meant to serve.
Chief Justice Weintraub's opinion in Bisaccia was highly critical
of Mapp's exclusionary rule,\27\ but in expressing his criticism, he
had an insight that stretched beyond merely the Fourth Amendment to the
core of the principle of state centrality when, after noting the
passage from the U.S. Supreme Court about the primary function of
government, he wrote, ``When the truth is suppressed and the criminal
set free, the pain of suppression is felt, not by the inanimate state
or by some penitent policeman, but by the offender's next victims for
whose protection we hold office.'' \28\ Here, in a few short words, is
the sum of the ``excess virtue'' of the principle of state centrality.
It goes too far when it ignores the pain of its victims.
---------------------------------------------------------------------------
\27\ Mapp v. Ohio, 367 U.S. 643 (1961).
\28\ Mapp, 367 U.S. at 589-90.
---------------------------------------------------------------------------
Justice Cardozo, saw the dark horizon of the principle of the
centrality of defendants' rights almost 65 years ago when he continued
after the passage just quoted above: ``But justice, though due to the
accused, is due to the accuser also. The concept of fairness must not
be strained till it is narrowed to a filament. We are to keep a true
balance.'' \29\
---------------------------------------------------------------------------
\29\ Snyder, 291 U.S. at 122; also reaffirmed in Payne v.
Tennessee, 501 U.S. 808, 827 (1991).
---------------------------------------------------------------------------
Here also, stated succinctly, is the sum of the ``excess virtue''
of the principle of the centrality of defendants' rights. A justice
system which affords its only rights to accused and convicted
offenders, but preserves and protects none for its crime victims, has
lost its essential balance. It is a system which continues to lose the
confidence of the public and its claim to respect.
The idea of a federal Constitutional Amendment for Victims' Rights
has a pedigree born of these same considerations. In 1982, the
President's Task Force on Victims of Crime identified the need for a
constitutional amendment in similar terms:
In applying and interpreting the vital guarantees that
protect all citizens, the criminal justice system has lost an
essential balance. It should be clearly understood that this
Task Force wishes in no way to vitiate the safeguards that
shelter anyone accused of crime; but it must be urged with
equal vigor that the system has deprived the innocent, the
honest, and the helpless of its protection.
The guiding principles that provide the focus for
constitutional liberties is that government must be restrained
from trampling the rights of the individual citizen. The
victims of crime have been transformed into a group
oppressively burdened by a system designed to protect them.
This oppression must be redressed. To that end it is the
recommendation of this Task Force that the Sixth Amendment to
the Constitution be augmented.\30\
---------------------------------------------------------------------------
\30\ President's Task Force on Victims of Crime, Final Report 114
(1982). [hereinafter President's Task Force].
The Crime Victims' Rights Amendment, as passed by the Senate
Judiciary Committee,\31\ is a modest proposal that embodies these goals
and will preserve for victims a reasonable, but not intrusive, role in
the matter of their case, and protect minimal rights to fair treatment.
The rights it proposes may be grouped into two general categories:
procedural and substantive.
---------------------------------------------------------------------------
\31\ S.J. Res. 44, 105th Cong. (1998).
---------------------------------------------------------------------------
In the procedural category, the Amendment includes the rights:
1. to reasonable notice of any public proceedings relating to
the crime;
2. to not be excluded from any public proceedings relating to
the crime;
3. to be heard, if present, at all public proceedings to
determine a conditional release from custody;
4. to submit a statement at all public proceedings to
determine a release from custody;
5. to be heard, if present, at all public proceedings to
determine an acceptance of a negotiated plea;
6. to submit a statement at all public proceedings to
determine an acceptance of a negotiated plea;
7. to be heard, if present at all public proceedings to
determine a sentence;
8. to submit a statement at all public proceedings to
determine a sentence;
9. to reasonable notice of a parole proceeding that is not
public, to the extent those rights are afforded to the
convicted offender;
10. to not be excluded from a parole proceeding that is not
public, to the extent those rights are afforded to the
convicted offender;
11. to be heard, if present at a parole proceeding that is
not public, to the extent those rights are afforded to the
convicted offender;
12. to submit a statement at a parole proceeding that is not
public, to the extent those rights are afforded to the
convicted offender;
13. to reasonable notice of a release from custody relating
to the crime;
14. to reasonable notice of escape from custody relating to
the crime;
15. to reasonable notice of the rights established by this
article; and
16. to standing to assert the rights established by this
article.
In the substantive category, the Amendment includes the rights:
17. to consideration for the interest of the victim in a
trial free from unreasonable delay;
18. to an order of restitution from the convicted offender;
and
19. to consideration for the safety of the victim in
determining any release from custody.
These rights are hardly radical, and are reflected in state laws
around the country.\32\ Yet it is important to underscore why these
rights are vital to victims. The right to be ``informed'' of
proceedings is fundamental to the notions of fairness and due process
that ought to be at the center of any criminal justice process. Victims
have a legitimate interest in knowing what is happening to ``their''
case, and such information can sometimes allay a victim's fears about
the whereabouts of a suspect or defendant.\33\ On the other hand,
holding criminal justice hearings without notifying victims can have
devastating effects. For example, the Director of Parents Against
Murdered Children recently testified at a Senate Hearing that many of
the concerns of the family members she works with ``arise from not
being informed about the progress of the case. * * * [V]ictims are not
informed about when a case is going to court or whether the defendant
will receive a plea bargain.'' \34\ What is most striking about this
testimony is that it comes on the heels of a concerted effort by the
victims' movement to obtain notice of hearings. In 1982, the
President's Task Force on Victims of Crime recommended that victims be
kept appraised of criminal justice proceedings.\35\ Since then many
state provisions have been passed requiring that victims be notified of
court hearings.\36\ But those efforts have not been fully successful.
As the Department of Justice recently reported:
---------------------------------------------------------------------------
\32\ See Douglas Evan Beloof, The Third Model of Criminal Process:
The Victim Participation Model, Utah L. Rev. (forthcoming 1999).
\33\ See Paul G. Cassell, Balancing the Scales of Justice: The Case
for and Effects of Utah's Victims Rights Amendment, 1994 Utah L. Rev.
1373, 1389.
\34\ A Bill Proposing an Amendment to the Constitution of the
United States to Protect the Rights of Crime Victims: 1996: Hearings on
S.J Res. 52 Before the Senate Comm. on the Judiciary, 104th Cong. 35-36
(1996) [hereinafter Hearings]. (statement of Rita Goldsmith).
\35\ President's Task Force, supra note 31 at 83.
\36\ U.S. Dept. of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services in the 21st
Century 13 (1998). See, e.g., Ariz. Const. Art. II, Sec. 2.1.(A)(3);
Utah Code Ann. Sec. Sec. 77-38-3 to -4.
While the majority of states mandate advance notice to crime
victims of criminal proceedings and pretrial release, many have
not implemented mechanisms to make such notice a reality. * * *
Victims also complain that prosecutors do not inform them of
plea agreements, the method used for disposition in the
overwhelming majority of cases in the United States criminal
justice system.'' \37\
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\37\ U.S. Dept. of Justice, supra note 37, at 13.
The Victims Rights Amendment will also guarantee that victims have
the right to attend court proceedings. This also builds on the
recommendations for the President's Task on Victims of Crime, which
concluded that victims ``no less than the defendant, have a legitimate
interest in the fair adjudication of the case, and should therefore, as
an exception to the general rule provided for the exclusion of
witnesses, be permitted to be present for the entire trial'' \38\
Allowing victims to attend trials has a variety of benefits for
Victims.\39\ The victim's presence may help to heal the psychological
wounds from the crime.\40\ Giving victims the right to be present also
helps them to reassert control over their own lives, a dignity that
criminals have often impaired by the criminal act.\41\ Victims can even
further the truth-finding process ``by alerting prosecutors to
misrepresentations in the testimony of other witnesses.'' \42\ While
some have argued that a victim's exclusion is needed to avoid the
possibility of tailored testimony,\43\ this concern can be addressed in
other ways such as having the victim testify first or relying on pre-
trial statements to police officers or the grand jury. After several
hearings on the Victims Rights Amendment, the Senate Judiciary
Committee recently concluded that there is ``no convincing evidence
that a general policy [of] excluding victims from courtrooms is
necessary to ensure a fair trial.'' \44\
---------------------------------------------------------------------------
\38\ President's Task Force, supra note 31, at 80.
\39\ See generally Paul G. Cassell, The Victim's Right to Attend
Trials: The Emerging National Consensus (unpublished manuscript on file
with Utah Law Review).
\40\ Ken Eikenberry, The Elevation of Victims' Rights in Washington
State: Constitutional Status, 17 Pepp. L. Rev. 19, 41, (1989).
\41\ See Lee Madigan and Nancy C. Gamble, The Second Rape:
Society's Continued Betrayal of the Victim 97 (1989).
\42\ U.S. Dept. of Justice, supra note 37, at 15.
\43\ See, e.g., Robert Mosteller, The Unnecessary Amendment, Utah
L. Rev. (forthcoming 1999).
\44\ S. Rep. No. 105-409 at 14 (1998).
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Victims also should be given the right to be heard at appropriate
points in the criminal justice process. The Victims Rights Amendment
does not propose to make victims ``co-equal parties in the criminal
justice process'' \45\ free to speak whenever they wish. Instead, the
proposed Amendment extends victims the right to be heard where they
have useful information to provide. One such point is a hearing to
determine whether to accept plea bargains. As Professor Beloof has
explained in his excellent casebook on victims' rights:
---------------------------------------------------------------------------
\45\ Cf. Lynne Henderson, Victim's Rights in Theory and Practice,
Utah L. Rev. (forthcoming 1999). (critiquing this possibility).
The victim's interest in participating in the plea bargaining
process are many. The fact that they are consulted and listened
to provides them with respect and an acknowledgment that they
are the harmed individual. This in turn may contribute to the
psychological healing of the victim. The victim may have
financial interests in the form of restitution or compensatory
fine which need to be discussed with the prosecutor. * * * The
victim may have a particular view of what * * * sentence [is]
appropriate under the circumstances. * * * Similarly, because
judges act in the public interest when they decide to accept or
reject a plea bargain, the victim is an additional source of
information for the court.\46\
---------------------------------------------------------------------------
\46\ Douglas E. Beloof, Victims in Criminal Procedure 464 (1999).
Victims also deserve to be heard at bail hearings. By informing courts
of the risks posed by criminal defendant, victims allow judges to reach
appropriate decisions on pretrial release. This is not to say that
victims should be able to dictate to judges whether and on what terms a
defendant should be released. But it is to say that victims should
have, while not a veto, at least a voice in the process. The failure of
the system to hear from victims of crime at this stage has sometimes
lead to tragic consequences from release decisions, consequences that
might well have been averted if the judge had heard from the affected
victims.\47\ Finally, victims should be heard before a judge imposes
sentence. This furthers fundamental due process, for ``[w]hen the court
hears, as it may, from the defendant, his lawyer, his family and
friends, his minister, and others, simple fairness dictates that the
person who has borne the brunt of the defendant's crime be allowed to
speak.'' \48\ While all states now recognize some form of a victim's
right to be heard at sentencing, shortfalls remain.\49\ A federal
constitutional amendment would clearly vindicate a victim's right to be
heard in all these areas.
---------------------------------------------------------------------------
\47\ See Hearings, supra note 35, at 25-26 (statement of Katherine
Prescott).
\48\ President's Task Force, supra note 31, at 77; see also Paul
Cassell, Barbarians at the Gates, Utah L. Rev. (forthcoming 1999).
\49\ See U.S. Dept. of Justice, supra note 37, at 17.
---------------------------------------------------------------------------
Victims also should be given the right to be notified whenever a
defendant or a convicted offender is released or escapes. Without such
notice, victims are placed at grave risk of harm. As the Department of
Justice recently explained, ``Around the country, there are a large
number of documented cases of women and children being killed by
defendants and convicted offenders recently released from jail or
prison. In many cases, the victims were unable to take precautions to
save their lives because they had not been notified of the
release.''\50\ The risk of attack is particularly serious in cases
involving domestic violence.\51\ By providing victims with a right to
``reasonable notice,'' the constitutional amendment would help alert
such victims to potential dangers.
---------------------------------------------------------------------------
\50\ See id. at 14.
\51\ See Jeffrey A. Cross, Note, The Repeated Sufferings of
Domestic Violence Victims Not Notified of Their Assailant's Pre-Trial
Release from Custody: A Call for Mandatory Domestic Violence Victim
Notification Legislation, 34 J. Family L. 915 (1996).
---------------------------------------------------------------------------
Victims should also be given a right to a trial ``free from
unreasonable delay.'' In today's criminal justice system, defendants
are often able to prolong the start of trials for no good reason. Let
me make plain that I am not speaking here of delays for legitimate
reasons. But there can be no doubt that in a number of cases defendants
have sought--and obtained--delay for delay's sake. The Senate Judiciary
Committee recently concluded that ``efforts by defendants to
unreasonably delay proceedings are frequently granted, even in the face
of State constitutional amendments and statutes requiring otherwise.''
\52\ Such practices should be eliminated by plainly recognizing a
victim's interest in a trial brought to a conclusion without
``unreasonable delay.'' This right does not conflict with defendants'
rights; defendants have, of course, long enjoyed their own right to a
``speedy trial.'' \53\
---------------------------------------------------------------------------
\52\ S. Rep., supra note 45, at 19.
\53\ U.S. Const. amend. VI. Professor Mosteller suggests that this
argument refutes a ``straw man'' because a conflict potentially exists
not with the defendant's right to a speedy trial, but with his right to
a fair trial which might require delay. See Mosteller, supra note 44,
at 23. But, in my view, Professor Mosteller never explains how a
victims' right to a trial free from ``unreasonable'' delay could
conflict with a defendant's interest in having a reasonable time to
prepare.
---------------------------------------------------------------------------
Similar arguments could be offered in support of all of the other
provisions of the Amendment, but I will not tarry any longer on the
subject here. Indeed, it is interesting to observe that even the
Amendment's most ardent critics usually say they support most of the
rights in principle. If there is one thing certain in the victims'
rights debate, it is that these words, ``I'm all for victims' rights
but * * *,'' are heard repeatedly.\54\ But while supporting the rights
``in principle,'' opponents in practice end up supporting, if anything,
mere statutory fixes that have proven inadequate to the task of
vindicating the interests of victims. As Attorney General Reno
testified before the House Committee on the Judiciary, ``* * * efforts
to secure victims' rights through means other than a constitutional
amendment have proved less than fully adequate.'' \55\ The best federal
statutes have proven inadequate to the needs of even highly publicized
victim injustices, as Professor Cassell's writing about the plight of
the Oklahoma City bombing victims has ably demonstrated.\56\ In my
state, the statutes were inadequate to change the justice system. And
now, despite its successes, we realize that our state constitutional
amendment will also prove inadequate to fully implement victims'
rights. While the amendment has improved the treatment of victims, it
does not provide the unequivocal command that is needed to completely
change old ways. In our state, as in others, the existing rights too
often ``fail to provide meaningful protection whenever they come into
conflict with bureaucratic habit, traditional indifference, sheer
inertia or the mere mention of an accused's rights--even when those
rights are not genuinely threatened.'' \57\ The experience in my state
is, sadly, hardly unique. A recent study by the National Institute of
Justice found that ``even in States where victims' rights were
protected strongly by law, many victims were not notified about key
hearings and proceedings, many were not given the opportunity to be
heard, and few received restitution.'' \58\ The victims most likely to
be affected by the current haphazard implementation are, perhaps not
surprisingly, racial minorities.\59\
---------------------------------------------------------------------------
\54\ See, e.g., A Bill Proposing an Amendment to the Constitution
of the United States to Protect the Rights of Crime Victims: Hearings
on S.J Res 6 Before the Senate Comm. On the Judiciary, 105th Cong. 45
(1997) [hereinafter Hearings] (statement of Roger Pilon): ``Although I
am opposed to amending the Constitution for the purpose of protecting
the rights of crime victims, I want to make it very clear at the outset
that I fully support the basic aims of this proposal'' (Emphasis
added.); Hearings, at 140-41 (reprinted letters from law Professors):
``Although we commend and share the desire to help crime victims,
amending the Constitution to do so is both unnecessary and dangerous.''
(Emphasis added.); Letter from The Conference of Chief Justices, (May
16, 1997) (on file with the author): ``The Conference is in favor of
according the victims of crimes all rights that are consistent with * *
* public safety * * * [w]e believe * * * state efforts provide a
significantly more prudent and flexible approach for testing and
refining novel legal concepts.'' (Emphasis added.) (Parenthetically,
that the Conference can believe that crime victims' rights to be
informed, present, and heard, or the other rights that were enumerated
in S.J. Res. 6, are ``novel legal concepts'' is evidence of how much
crime victims lack in our criminal justice system and how far we have
yet to go to achieve basic justice for them.); Letter from the National
Legal Aid and Defender Association to Congressman Hyde, (August 19,
1996) (on file with the author): ``Like so many other groups, NLADA
strongly supports the proposed constitutional amendment's goals of
protecting victim's rights.'' (Emphasis added.); Hearings, supra note
8, at 100 (prepared statement of Bruce Fein): ``I concur with the
sentiments that animate the proposal. But I believe a constitutional
amendment would detract from the sacredness of the covenant. * * *''
(Emphasis added.); Hearings, Supra note 8, at 96 (prepared statement of
James B. Raskin): ``I am intrigued by Senator Kyl's proposed
constitutional amendment because it shows us the way that the best
intentions often go astray when we try to constitutionalize at the
national level public policies that can be much more easily and
straightforwardly implemented by the states or by statute. (Emphasis
added.)
\55\ Proposals to Provide Rights to Victims of Crime: Hearing on
H.J Res 71 and H.R. 1322 Before the House Comm. On the Judiciary, 105th
Cong. 27 (1997) (statement of Janet Reno, Attorney General).
\56\ See Paul G. Cassell, Barbarians at the Gates, supra note 49;
see also Hearings, supra note 55, at 103 (testimony of Paul Cassel).
\57\ Laurence H. Tribe and Paul G. Cassell, Embed the Rights of
Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
\58\ U.S. Dept. of Justice, National Institution of Justice, The
Rights of Crime Victims--Does Legal Protection Make a Difference? 10
(Dec. 1998).
\59\ National Victim Center, Statutory and Constitutional
Protection of Victims' Rights: Implementation and Impact on Crime
Victims: Sub-Report on Comparison of White and Non-White Crime Victim
Responses Regarding Victims' Rights 5 (1997).
---------------------------------------------------------------------------
The precise reasons that victims fail to be afforded all their
rights today are complex. Some of the other participants in this
symposium have ventured their attempts at explanations,\60\ and others
have offered their ideas elsewhere.\61\ There is much wisdom in the
problems they have identified, and I only want to add that part of the
problem is due to perceived conflicts between victims' rights and
defendant's rights. Our courts have already stated the obvious, that
``the Supremacy Clause requires that the Due Process Clause of the U.S.
Constitution prevail over state constitutional provisions.'' \62\ Of
course victims' rights advocates do not seek to diminish the
constitutional rights of those accused of offenses, and nothing in the
proposed Victims' Rights Amendment would do so. Even a cursory review
of the rights proposed must lead one to the conclusion, as Professor
Tribe has concluded, that ``no actual constitutional rights of the
accused or of anyone else would be violated by respecting the rights of
victims in the manner requested.'' \63\ But without parity in the
Constitution, crime victims will always be second-class citizens and
their rights will never be accorded the respect and protection they
would and should otherwise receive. They will simply be left out of our
``adversary'' system.\64\ Thus, it is the consensus view of victims'
advocates recently assembled by the Department of Justice that ``[a]
victims' rights constitutional amendment is the only legal measure
strong enough to rectify the current inconsistencies in victims' rights
law that vary significantly from jurisdiction to jurisdiction on the
state and federal levels. Such an amendment would ensure that rights
for victims are on the same level as the fundamental right of accused
and convicted offenders. Most supporters believe that it is the only
legal measure strong enough to ensure that the rights of victims are
fully enforced across the country.'' \65\
---------------------------------------------------------------------------
\60\ See Susan Bandes, Victim Standing, Utah L. Rev. (forthcoming
1999) (noting standing barriers to victim participation); Cassell,
supra, note 57; (discussing multiple reasons for failure to respect
victims rights); William T. Pizzi, Victims Rights: Rethinking our
``Adversary System'', Utah L. Rev. (forthcoming 1999) (discussing how
victims are frozen out of the adversary system); Beloof, supra note 33;
(noting how existing two-party paradigms are blind to victims).
\61\ See Edna Erez, Victim Impact Statements and Sentencing,
British J of Criminology (forthcoming 1999) (reviewing socialization of
lawyers to discount victim participation); Andrew J. Karmen, Who's
Against Victims Rights? The Nature of the Opposition to Pro-Victim
Initiatives in Criminal Justice, 8 St. John's J. of Legal Comment 157
(1992). (noting that victims' rights conflict with existing
bureaucratic ``turf'' in the system).
\62\ State v. Riggs, 942 P.2d 1159, 1162 (Ariz. 1997).
\63\ Letter from Laurence H. Tribe, Professor of Law, Harvard
University, to Senators Hatch and Biden and Representatives Hyde and
Conyers, (September 11, 1996) (on file with author).
\64\ For an excellent elaboration of this point, see Pizzi, supra
note 61.
\65\ U.S. Dept. of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services for the 21st
Century 10 (1998).
---------------------------------------------------------------------------
The criminal justice system we have evolved since our founding is
now simply inadequate to meet the needs of the whole people. It has
come to be respectful, perhaps more than ever, of the rights of those
accused or convicted of crimes. It serves the interests of the
professionals in the system fairly well: the judges, lawyers, and
police, probation, and jail officers. But it does not serve the whole
of the people well because it forgets the victim.
When James Madison took to the floor and proposed the Bill of
Rights during the first session of the First Congress, on June 8, 1789,
``his primary objective was to keep the Constitution intact, to save it
from the radical amendments others had proposed. * * *'' \66\ In doing
so he acknowledged that many Americans did not yet support the
Constitution.
---------------------------------------------------------------------------
\66\ Robert A. Goldwin, From Parchment To Power: How James Madison
Used the Bill of Rights to Save the Constitution, p. 73 (AEI Press
1997).
Prudence dictates that advocates of the Constitution take
steps now to make it as acceptable to the whole people of the
United States, as it has been found acceptable to a majority of
them.''
The fact is, Madison said, there is still ``a great number''
of the American people who are dissatisfied and insecure under
the new Constitution. So, ``if there are amendments desired of
such a nature as will not injure the constitution, and they can
be ingrafted so as to give satisfaction to the doubting part of
our fellow-citizens,'' why not, in the spirit of ``deference
and concession,'' adopt such amendments? \67\
---------------------------------------------------------------------------
\67\ Goldwin, supra note 67 at 79.
Madison adopted this tone of ``deference and concession'' because
he realized that the Constitution must be the ``will of all of us, not
just a majority of us.'' \68\ By adopting a bill of rights, Madison
thought, the Constitution would live up to this purpose. He also
recognized how the Constitution was the only document which could
likely command this kind of influence over the culture of the country.
Our goals are perfectly consistent with the goals that animated James
Madison. There is a view in the land that the Constitution today does
not serve the interests of the whole people in matters relating to
criminal justice. And the way to restore balance to the system, in ways
that become part of our culture, is to amend our fundamental law.
---------------------------------------------------------------------------
\68\ Goldwin, supra note 67 at. 100.
[The Bill of Rights will] have a tendency to impress some
degree of respect for them, to establish the public opinion in
their favor, and rouse the attention of the whole community * *
* [they] acquire, by degrees, the character of fundamental
maxims * * * as they become incorporated with the national
sentiment. * * * \69\
---------------------------------------------------------------------------
\69\ James Madison, The Papers of James Madison 1, 198 (1979).
Critics of Madison's proposed amendments claimed they were
unnecessary, especially so in the United States, because states had
bills of rights. Madison responded with the observation that ``not all
states have bills of rights, and some of those that do have inadequate
and even `absolutely improper' ones.'' \70\ Our experience in the
victims' rights movement is no different.
---------------------------------------------------------------------------
\70\ Madison, supra note 69 at 106.
---------------------------------------------------------------------------
Professor Tribe has observed this failure: ``* * * there appears to
be a considerable body of evidence showing that, even where statutory
or regulatory or judge-made rules exist to protect the participatory
rights of victims, such rights often tend to be honored in the breach.
* * *'' \71\ As a consequence he has concluded that crime victims'
rights ``are the very kinds of rights with which our Constitution is
typically concerned.'' \72\
---------------------------------------------------------------------------
\71\ Laurence H. Tribe, Victims' Rights, Unpublished paper June 27,
1996, p. 1.
\72\ Tribe, supra note 72 at 1.
---------------------------------------------------------------------------
After years of struggle, we now know that the only way to make
respect for the rights of crime victims ``incorporated with the
national sentiment,'' is to make them a part of ``the sovereign
instrument of the whole people,'' the Constitution. The moment for
constitutional rights for crime victims, properly understood, is
neither an attack on the rights of defendants, nor on the power of
public prosecutors, but rather is a movement to save these two good and
perfect things in the American justice system by tempering their
excessive virtue with true balance. Indeed the amendment just might
save the very things its critics fear it will destroy.
The Chairman. Ms. Wilkinson.
STATEMENT OF BETH A. WILKINSON
Ms. Wilkinson. Thank you, Mr. Chairman. I would like to
thank all of the members of the Judiciary Committee for taking
up this important subject and for allowing me to share my
thoughts on the victims' rights amendment.
I come before you this morning as someone who understands
the delicate balancing act between victims' rights and the
pursuit of justice. I spent 2\1/2\ years as part of the
Government team that successfully prosecuted Timothy McVeigh
and Terry Nichols for the Oklahoma City bombing.
As you know, 168 people, including 19 children, were killed
on that day, April 19, 1995. And for the survivors and the
hundreds of relatives of the victims, the emotional struggle
was enormous. I grew to understand their grief firsthand.
During the process, it became clear to me that we had to listen
to the victims, and yet balance their concerns with the need
for a just trial. This experience transformed my views on the
rights of victims, making me more sensitive to the issues that
victims face throughout the judicial system.
Early in my career when I was a captain in the U.S. Army
working on the Noriega prosecution and other criminal cases, I
first encountered issues surrounding victims' rights. As a an
assistant U.S. attorney in the Eastern District of New York,
and later as the principal deputy chief of the Terrorism and
Violent Crimes Section for the Department of Justice, I came to
know the trauma victims confront when they take the stand and
testify about the impact of a heinous crime.
I also know the frustration that they feel when the
criminal justice system seems to move at a glacial pace toward
the resolution of a criminal matter. But I also know, and I
have seen, the relief and satisfaction that they experience
when a criminal trial ends with a fair and just conviction of
the guilty.
It is because of my experiences as a prosecutor in the
Oklahoma City bombing trials and my involvement with numerous
other terrorism and violent crime cases that I respectfully
oppose the proposed victims' rights amendment in its current
form. And I urge you to consider statutory alternatives to
protect the rights of victims.
I firmly believe that the rights of victims must be
recognized and honored throughout the criminal process.
However, their most important right, the right to the just
conviction of the guilty, must remain paramount. I spent many,
many hours with the mothers and the fathers who lost their
children in the America's Kids Daycare Center that was located
in the Alfred P. Murrah Building. I talked to the husbands and
the wives of law enforcement agents who were killed by McVeigh
and Nichols. I listened to the people who were injured on April
19th and heard them describe the horror of being trapped in the
dark, collapsed and frightening remains of the Murrah building.
Because of people like Marsha Kight, who attended the trial
day in and day out and is here with us today, I had the honor
of witnessing the courage of the survivors and the families as
the horrific story unfolded before them once again at trial.
While victims and family members often expected vastly
different results from the judicial system, they uniformly
asked me and the other members of the prosecution team to do
two things on their behalf; first, to prove to them and to the
jury that the defendants were guilty beyond a reasonable doubt.
They wanted to make sure that we had charged the right people,
a concern, I submit, of every crime victim.
Second, they asked us to prosecute the cases in a fair and
just manner so that the convictions would be upheld on appeal.
No victim of a crime, especially those who have suffered
through such a gut-wrenching trial and penalty phase, want to
see a conviction overturned and face a retrial of the
defendants.
In the Oklahoma City bombing trials, we endeavored to
achieve these goals, and I am proud to say in the end both
McVeigh and Nichols' convictions were supported by overwhelming
evidence and have thus far been upheld on appeal. Achieving
this result was not easy, and it could have been substantially
impaired if the current version of the victims' rights
amendment had been in place.
For example, just months after the bombing, the prosecution
team who was responsible for determining the most effective
strategy for convicting those most culpable determined that it
was in the best interests of the case to accept a guilty plea
from Michael Fortier. While not a participant in the conspiracy
to bomb the building and the people inside of it, Fortier knew
of McVeigh and Nichols' plans and he failed to prevent the
bombing.
If the victims had had a constitutional right to address
the court at the time of the plea, I have no doubt that many of
them would have vigorously and emotionally opposed any plea
bargain between the Government and Fortier. From their
perspective, their opposition would have been reasonable. Due
to the secrecy rules of the grand jury, we could not explain to
the victims why Fortier's plea and cooperation was important to
the prosecution of McVeigh and Nichols.
What if the judge had rejected the plea based on the
victims' opposition, or at least forced the Government to
detail why Fortier's testimony was essential to the
Government's case? Timothy McVeigh's trial could have turned
out differently. Significant prosecutorial resources would have
been diverted from the investigation and prosecution of McVeigh
and Nichols to pursue the case against Fortier, and we would
have risked losing the evidence against McVeigh and Nichols
that only Fortier could provide. In the end, the victims would
have been much more disappointed if Timothy McVeigh had been
acquitted than they were that Michael Fortier was permitted to
plead guilty.
In criminal cases, it is not that the victims should not
have a right to speak out about the case and its impact on
their lives. They should, and they do. It is the timing of
their statements and their input that should be carefully
examined.
Victims were able to attend Michael Fortier's plea. Their
testimony regarding the plea and the impact of Fortier's crimes
on them and their families was appropriately expressed at the
time of Fortier's sentencing. It was then, after the
convictions of McVeigh and Nichols, that the court listened to
the victims express their views on the just sentence for
Michael Fortier.
Without compromising the victims' rights to address the
court and the defendants, the current constitutional framework
permitted the prosecution team to obtain Fortier's testimony
and the other defendants' convictions and allow the victims to
testify during the sentencing hearing of the defendants.
Some point to the Oklahoma City bombing trials as support
for this proposed victims' rights amendment, but I believe that
the trials prove that the interests of victims can be
vindicated without a constitutional amendment. This Congress
passed a statute that worked--the Victims' Rights Clarification
Act of 1997. On its very first application at the McVeigh
trial, no victim was precluded from testifying during the
penalty phase who had sat through the Government's case-in-
chief. Just 3 months later, at the Nichols trial, all of the
survivors and the families were able to view the trial and
testify during the penalty phase if they so desired, thanks to
the recent congressional statute.
There are many things that can and should be done to assure
that victims are part of the criminal process. Most
importantly, the justice system needs additional resources to
fund victim-related programs. We also must educate prosecutors,
law enforcement agents and judges about the impact of crimes so
they better understand the importance of addressing victims'
rights from the outset.
I learned these important lessons from the victims of the
Oklahoma City bombing. The survivors and family members of the
Oklahoma City tragedy waited patiently and with dignity for a
just result. Their eloquent statements and testimony during the
trials, the penalty phases and the sentencing hearings, coupled
with the trial judge's vigilant protection of the defendants'
rights, resulted in the vindication of the victims' most
important right, the fair and just conviction of the guilty.
Thank you very much, Mr. Chairman.
The Chairman. Well, thank you, Ms. Wilkinson.
[The prepared statement of Ms. Wilkinson follows:]
Prepared Statement of Beth A. Wilkinson
Thank you Mr. Chairman. I would like to thank all of the members of
the Judiciary Committee for taking up this important subject and
allowing me to share my thoughts on the proposed Victims' Rights
Amendment.
I come before you this morning as someone who understands the
delicate balancing act between victims rights and the pursuit of
justice. I spent 2\1/2\ years as part of the government team that
successfully prosecuted Timothy McVeigh and Terry Nichols for the
Oklahoma City bombing. As you know, the bombing killed 168 people,
including 19 children. For the survivors and the hundreds of relatives
of the victims, the emotional struggle was enormous. I grew to
understand their grief first hand. Starting with the day I was assigned
to the case, I met with the victims and their families to discuss the
losses they had suffered and to prepare them for their testimony. As a
member of the prosecution team, I spoke to several hundred victims and
their families at pretrial informational meetings during which we
fielded questions, pertaining to the key issues in the case. Everyday
in the courtroom I spoke to the victims, listening to their thoughts
and opinions about the trial. During the process it became clear to me
that we had to listen to the victims yet balance their concerns with
the need for a just trial.
This experience transformed my views on the rights of victims
making me more sensitive to the issues that victims face throughout our
judicial system. Early in my career, when I was a Captain in the Army
working on the Noriega prosecution and other criminal cases, I first
encountered the issues surrounding victims rights. As an Assistant
United States Attorney for the Eastern District of New York , and
later, as the principal deputy chief of the Terrorism and Violent Crime
Section of the Criminal Division, I came to know the trauma victims
confront when they take the stand and testify about the impact of a
heinous crime. I also know the frustration they feel when the criminal
justice system seems to move at a glacial pace toward the resolution of
a criminal case. But I also know the relief and satisfaction they
experience when a criminal trial ends with the fair and just conviction
of the guilty.
It is because of my experience as a prosecutor in the Oklahoma City
bombing trials and my involvement with numerous other terrorism and
violent crime cases, that I respectfully oppose the Victim's Rights
Amendment in its current form and urge you to consider statutory
alternatives to protect the rights of victims. I firmly believe the
rights of victims must be recognized and honored throughout the
criminal process, however, their most important right--the right to the
just conviction of the guilty--must remain paramount.
I spent many, many hours with the mothers and fathers who lost
their children in the America's Kids Daycare Center that was located in
the Alfred P. Murrah Building. I talked to the husbands and wives of
law enforcement agents who were killed by Timothy McVeigh and Terry
Nichols. I listened to the people who were injured that day and heard
them describe the horror of being trapped in the dark, collapsed and
frightening remains of the Murrah building.
While victims and family members often expected vastly different
results from the judicial system, they uniformly asked me and the rest
of the prosecution team to do two things on their behalf. First, prove
to them and the jury that the defendants were guilty beyond a
reasonable doubt. They wanted to make sure we had charged the right
people, a concern, I submit, of every crime victim. Second, they asked
us to prosecute the cases in a fair and just manner so that the
convictions would be upheld on appeal. No victim of a crime, especially
those who suffered through such a gut-wrenching trial and penalty
phase, wants to see a conviction overturned and face a re-trial of a
defendant.
In the Oklahoma City bombing trials, we endeavored to achieve these
goals and, in the end, both the McVeigh and Nichols convictions were
supported by overwhelming evidence and upheld on appeal. Achieving this
result was not easy and could have been substantially impaired if the
Victims Rights Amendment had been in place.
For example, just months after the bombing, the prosecution team,
which was responsible for determining the most effective strategy for
convicting those most culpable, McVeigh and Nichols, determined that it
would be in the best interest of the case to accept a guilty plea from
Michael Fortier. While not a participant in the conspiracy to bomb the
building and the people inside of it, Fortier knew of McVeigh and
Nichols' plans and he failed to prevent the bombing. If the victims had
had a constitutional right to address the Court at the time of the
plea, I have no doubt that many would have vigorously and emotionally
opposed any plea bargain between the Government and Fortier. From their
perspective, their opposition would have been reasonable. Due to the
secrecy rules of the grand jury, we could not explain to the victims
why Fortier's plea and cooperation was important to the prosecution of
Timothy McVeigh and Terry Nichols.
What if the judge had rejected the plea based on the victims'
opposition or at least forced the government to detail why Fortier's
testimony was essential to the Government's case? Timothy McVeigh's
trial could have turned out differently. Significant prosecutorial
resources would have been diverted from the investigation and
prosecution of McVeigh and Nichols to pursue the case against Fortier
and we would have risked losing the evidence against McVeigh and
Nichols that only Fortier could have provided. In the end, the victims
would have been much more disappointed if Timothy McVeigh had been
acquitted than they were when Michael Fortier was permitted to plead
guilty.
In criminal cases, it is not that the victims should be not have a
right to speak out about the case and its impact on their lives: they
should and they do. It is the timing of their statements and their
input that should be carefully examined. Victims were able to attend
Michael Fortier's plea. Their testimony regarding the plea and the
impact of Fortier's crimes on them and their families was appropriately
expressed at the time of Fortier's sentencing. It was then, after the
convictions of Timothy McVeigh and Terry Nichols that the Court
listened to the victims express their views on the just sentence for
Michael Fortier. Without compromising the victims' right to address the
Court and the defendants, the current constitutional framework
permitted the prosecution team to obtain Fortier's testimony and the
other defendants' convictions and allowed the victims to testify during
the sentencing hearings of the defendants.
Some point to the Oklahoma City bombing trials as support for the
proposed Victims' Rights Amendment, but in fact I believe that the
trials proved that the interests of victims can be vindicated without a
constitutional amendment. When the victims found themselves having to
choose between attending the trial and testifying about the impact of
the crime, Congress responded with the Victim Rights Clarification Act
of 1997, enabling the victims to view the trial and speak during the
penalty phase of the proceedings. The statute worked. No victims were
precluded from testifying. Indeed 37 witnesses appeared over two and a
half days during the sentencing hearing for Timothy McVeigh. The
jurors, who had to decide whether to sentence McVeigh to life or death,
listened to the testimony of each of those witnesses.
. There are many things that can and should be done to assure that
victims are part of the criminal process. All crime victims should
receive notice of public proceedings in a case and be permitted to
attend if they so choose. We kept the victims of the Oklahoma City
bombing informed by establishing a victim-witness unit which maintained
contact with all of the victims and their family members. We also sent
letters detailing the progress of the case, and met with people on a
regular basis to answer questions and prepare them for the difficult
testimony and issues that would arise at trial. Through interviews of
family members and survivors in preparation for the trial, we gained
insight into the needs of those who grieved. Over time, the victims
learned to trust our judgment and to believe that we would pursue
justice without compromising their interests.
An amendment to the Constitution, or even a statute guaranteeing
the rights of victims, could not mandate some of the most needed
reforms to the criminal justice system. We must educate prosecutors,
law enforcement and judges about the impact of crimes so that they
better understand the importance of addressing victims' rights from the
outset. I learned those lessons from the victims of the Oklahoma City
bombing.
The survivors and the family members of the Oklahoma City bombing
waited patiently and with dignity for a just result. Their eloquent
statements and testimony during the trials,penalty phases and
sentencing hearings coupled with the trial judge's vigilant protection
of the defendant's rights resulted in the vindication of the victim's
most important right--the fair and just conviction of the guilty.
The Chairman. Professor Cassell.
STATEMENT OF PAUL G. CASSELL
Mr. Cassell. Thank you, Mr. Chairman and distinguished
members of the committee. I appreciate the opportunity to be
here today to urge you to pass this victims' rights amendment
and send it on its way speedily to the States for ratification
there.
Around the country, a clear consensus has developed that
victims of crime deserve protection in our criminal justice
process. Thirty-one States now have State constitutional
amendments protecting the rights of crime victims, and all
States have some form of statutory recognition of the rights of
victims to be involved in the process.
Now, where these rights have been implemented, the results
have been to improve the criminal justice system. Victims who
are kept informed about the process can be more effective in
helping the prosecution. They can help judges by providing
information about whether to release a defendant on bail or
what the appropriate sentence is. And this involvement in the
process helps victims themselves to cope with debilitating
psychological injuries inflicted by terrible crimes.
So it is not surprising to find that those who take a
global view of an effective criminal justice system strongly
support the victims' rights amendment. For example, the
Attorney General testified before this committee that ``The
President and I have concluded that a victims' rights amendment
would benefit not only crime victims, but also law enforcement.
Victims will be that much more willing to participate in the
process if they perceive that we are striving to treat them
with respect and to recognize their central place in any
prosecution.''
Yet, while a clear consensus has developed that victims
deserve these rights, disturbing evidence continues to mount
that victims are too often denied these rights in court rooms
around the country. Hard statistical evidence of these denials
comes from a National Institute of Justice study released just
three months ago. The study concluded that, ``Enactment of
State laws and State constitutional amendments alone appears to
be insufficient to guarantee full provision of victims' rights
in the process.''
For example, even in two States the National Institute of
Justice identified as providing strong protection for crime
victims, fewer than 60 percent of victims were notified of
sentencing hearings, and fewer than 40 percent were notified of
the pre-trial release of the defendant. A follow-on analysis of
this same data found, perhaps not surprisingly, that those who
are worse off today are racial minorities who are
disproportionately affected by the haphazard administration and
provision of victims' rights.
Now, these conclusions are simply the latest in a long line
of findings that the criminal justice system is not providing
the rights that have been promised to victims. Perhaps most
noteworthy among these is the conclusions of the U.S.
Department of Justice, who carefully reviewed this issue and,
as the Attorney General reported to this committee, found that
State efforts are simply not sufficiently consistent,
comprehensive, or authoritative to safeguard victims' rights.
Similarly, Harvard law professor Laurence Tribe, after
looking at all the evidence, has concluded that State
protections provide too little protection whenever they come
into conflict with bureaucratic habit, traditional
indifference, sheer inertia, or any mention of the accused's
rights, even when those rights are not genuinely threatened.
It is against this backdrop that we should consider claims
by Ms. Wilkinson and others that victims' rights can be fully
protected by statutes. Indeed, the very case that she
discusses, the Oklahoma City bombing case, proves the need for
an amendment. Now, in many ways this case should have been a
model, here where ample resources devoted to a prosecution, the
public was watching, and this was in the Federal system, a
model for protecting victims' rights, one would think.
Yet, in spite of this, at a number of points in the process
victims' rights were not respected, and indeed a good
illustration is the very point that Ms. Wilkinson talks about,
the plea agreement that the Government entered with Mr.
Fortier. Now, under the Act that this Congress passed in 1990,
the Victims' Rights and Restitution Act, the Department was
required to use its best efforts to confer with victims about
that plea agreement and to notify them of the plea hearing.
Yet, the Department failed to do so, and the result of the
surprise plea bargain was, quite predictably, hostility in the
victims' community. Now, based on this hostility, prompted in
no small part by the Department's failure to trust the victims,
Ms. Wilkinson builds conjecture upon conjecture to say that the
prosecution of Timothy McVeigh and Terry Nichols would have
been impaired if the victims' rights amendment had been in
place.
Now, this conjecture assumes irrationality both on the part
of crime victims and on the part of Federal judges. Had Ms.
Wilkinson and her colleagues trusted the victims and explained
to the victims why this plea agreement was necessary, they
would have supported the agreement. And we needn't speculate
about this. We have with us today Marsha Kight, one of the
leaders of the victims' community in Oklahoma City, and she has
released a statement to this committee that the great majority
of victims would have supported that plea agreement had the
Government taken the time to talk to them about it.
And there is also no need to speculate about how a victim's
right to be heard on plea agreements would operate in practice.
Today, approximately 36 States already have on their books
provisions allowing victims to be heard at plea agreements, and
yet the sky has not fallen. In fact, to the contrary, it has
improved the plea bargaining process.
Now, even if the victims oppose a plea agreement, we should
remember that the final decision is made by a judge. And if
this plea agreement with Mr. Fortier was so critical, certainly
a Federal judge would have accepted it, and indeed the Federal
judge did accept it. So, if anything, the situation with
Michael Fortier's plea agreement shows the need for the Federal
amendment, not any problems with it.
Now, this is not the only illustration of a problem in the
Oklahoma City bombing case that arose without constitutional
protection for victims' rights. The committee is well aware of
the difficulties that victims had in enforcing their rights to
attend trial. The trial judge sua sponte ordered that any
victims in the case who were going to testify at the penalty
phase would have to be sequestered and could not watch the
proceedings.
And in reaching this ruling, the court was apparently
entirely unaware of the 1990 statute, the Victims' Rights and
Restitution Act, that gave victims the right to attend
hearings. Even after we filed a motion calling the statute to
the attention of the judge, based on a vague reference to a
defendant's constitutional rights, he refused to enforce its
provisions.
I then represented Marsha Kight and 89 other victims in the
Tenth Circuit, and we were thrown out of the Tenth Circuit on
the grounds that we lacked standing to even be heard to present
our case that these victims of the bombing should have the
opportunity to watch the trial. And I should point out to this
committee that that decision remains on the books, and in all
six States in the Tenth Circuit it is the law today that
neither victims of crime nor the Department of Justice has any
standing to go into court and enforce these rights.
Congress then passed, as you know, the 1997 Victims' Rights
Clarification Act to address this specific problem, and we
presented that law, then, to the judge immediately after this
committee and Congress had approved it. And yet the judge
deferred ruling on the validity of that law, deferring his
ruling until after the trial, forcing the victims once again to
make the painful choice about whether to watch the trial and to
risk losing the opportunity to testify at the impact phase of
the trial.
Ms. Wilkinson has testified that the statute worked, but
the prosecutors at the time, including, I believe, Ms.
Wilkinson, were forced to advise victims that if they went into
the trial and watched, they would be creating substantial
uncertainty and risk about whether they would be denied the
opportunity to testify at the penalty phase. And some of the
victims decided not to run that risk and lost forever the
rights promised to them by Congress to watch the trial.
Now, these again are not the only examples of problems in
this case. At the sentencing of Timothy McVeigh, victims were
not given the opportunity to make a statement. When Timothy
McVeigh was sentenced, no order of restitution was imposed
against him, an apparent oversight by both the Department of
Justice and perhaps the court as well.
If this is the treatment of victims in the very best of
circumstances, when the spotlight is on and the Nation is
watching, the committee can well imagine what the treatment is
like of victims in ordinary, day-to-day criminal justice
hearings. It is time to end this glaring mistreatment of
victims. Our criminal justice system provides ample rights for
criminal defendants. It should do the same for their innocent
victims as well.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Cassell follows:]
Prepared Statement of Paul G. Cassell
Mr. Chairman and Distinguished Members of the Committee, I am
pleased to be here today.
I am a Professor of Law at the University of Utah College of Law,
where I teach a course devoted exclusively to the rights of crime
victims. I have represented crime victims (always on a pro bono basis)
on a number of legal issues and written and lectured on the subjects of
crime victims rights, as explained at greater length in my attached
biography. I serve on the executive board of the National Victim
Constitutional Amendment Network, an organization devoted to bringing
constitutional protection to crime victims across the country.
I have previously provided extensive testimony to this Committee
supporting the Crime Victims' Rights Amendment.\1\ I will not reiterate
all that I have said there, but did want to briefly note that a strong
national consensus appears to be developing that the rights of crime
victims deserve protection and that a federal constitutional amendment
is the only way to fully guarantee that protection. A substantial
majority of the states have passed amendments to their own state
constitutions protecting victims' rights and more amendments are passed
at every national election. The amendments provide strong evidence that
the citizens of this country believe that victims should be respected
in the criminal process.
---------------------------------------------------------------------------
\1\ See The Victims Right Amendment: Hearings Before the Senate
Comm. on the Judiciary, 105th Cong., 2nd Sess. (Apr. 28, 1998); Crime
Victims' Rights Amendment: Hearing Before the Senate Comm. on the
Judiciary, 105th Cong., 1st Sess. (Apr. 16, 1997); The Victims' Bill of
Rights Amendment: Hearings Before the Senate Comm. on the Judiciary,
104th Cong., 2d Sess. (April 23, 1996).
---------------------------------------------------------------------------
Unfortunately, however, the state amendments and related federal
and state legislation are generally recognized by those who have
carefully studied the issue to have been insufficient to fully protect
the rights of crime victims. The United States, Department of Justice
has concluded that current protection of victims is inadequate, and
will remain inadequate until a federal constitutional amendment is in
place. As the Attorney General explained:
efforts to secure victims' rights through means other than a
constitutional amendment have proved less than fully adequate.
Victims rights advocates have sought reforms at the State level
for the past 20 years. * * * However, these efforts have failed
to fully safeguard victims' rights. These significant State
efforts simply are not sufficiently consistent, comprehensive,
or authoritative to safeguard victims' rights.\2\
---------------------------------------------------------------------------
\2\ A Proposed Constitutional Amendment to Protect Victims of
Crime: Hearing Before the Sen. Judiciary Comm., 105th Cong., 1st Sess.
41 (Apr. 16, 1997) (statement of Attorney General Janet Reno).
A number of legal commentators have reached similar conclusions. For
example, Harvard Law Professor Laurence Tribe has explained that the
existing statutes and state amendments ``are likely, as experience to
date sadly shows, to provide too little real protection whenever they
come into conflict with bureaucratic habit, traditional indifference,
sheer inertia, or any mention of an accused's rights regardless of
whether those rights are genuinely threatened.'' \3\ Similarly, Texas
Court of Appeals Justice Richard Barajas has explained that ``[i]t is
apparent * * * that state constitutional amendments alone cannot
adequately address the needs of crime victims.'' \4\
---------------------------------------------------------------------------
\3\ Laurence Tribe, The Amendment Could Protect Basic Human Rights,
Harv. L. Bull., Summer 1997, at 19, 20.
\4\ Chief Justice Richard Barajas & Scott Alexander Nelson, The
Proposed Crime Victims' Federal Constitutional Amendment: Working
Toward a Proper Balance, 49 Baylor L. Rev. 1, 13 (1997).
---------------------------------------------------------------------------
That only a federal amendment will protect victims is the view of
those in perhaps the best position to know: crime victims and their
advocates. The Department of Justice recently convened a meeting of
those active in the field, including crime victims, representatives
from national victim advocacy and service organization, criminal
justice practitioners, allied professionals, and many others. Their
report--published by the Office for Victims of Crime and entitled ``New
Directions from the Field: Victims' Rights and Services for the 21st
Century''--concluded that ``[t]he U.S. Constitution should be amended
to guarantee fundamental rights for victims of crime.'' \5\ The report
went on to explain,
---------------------------------------------------------------------------
\5\ U.S. Dep't of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services for the 21st
Century 9 (1998).
A victims' rights constitutional amendment is the only legal
measure strong enough to rectify the current inconsistencies in
victims' rights laws that vary significantly from jurisdiction
to jurisdiction on the state and federal levels. * * * Today,
many victims do not report crime or participate in the criminal
justice system for a variety of reasons, including fear of
revictimization by the system and retaliation by the offender.
Victims will gain confidence in the system if their rights are
recognized and enforced, their concerns for safety are given
serious consideration, and they are treated with dignity and
respect.\6\
---------------------------------------------------------------------------
\6\ Id. at 10-12.
These impressionist conclusions find strong support in a December,
1998 report from the National Institute of Justice (NIJ) finding that
many victims are denied their rights and concluding that ``enactment of
State laws and State constitutional amendments alone appears to be
insufficient to guarantee the full provision of victims' rights in
practice.'' \7\ The report found numerous examples of victims not
provided rights to which they were entitled. For example, even in
several states identified as giving ``strong protection'' to victims
rights, fewer than 60 percent of the victims were notified of the
sentencing hearing and fewer than 40 percent were notified of the
pretrial release of the defendant.\8\ A follow-up analysis of the same
data found that racial minorities are less likely to be afforded their
rights under the patchwork of existing statutes.\9\
---------------------------------------------------------------------------
\7\ Nat'l Inst. of Justice, Research in Brief, The Rights of Crime
Victims--Does Legal Protection Make a Difference? 1 (Dec. 1998).
\8\ Id. at 4 exh. 1.
\9\ National Victim Center, Statutory and Constitutional Protection
of Victims' Rights: Implementation and Impact on Crime Victims: Sub-
Report on Comparison of White and Non-White Crime Victim Responses
Regarding Victims Rights 5 (1997).
---------------------------------------------------------------------------
For reasons such as these, the Victims Rights Amendment has
attracted considerable bi-partisan support, as evidenced by its
endorsement by the President\10\ and strong approval in this Committee
at the end of the 104th Congress.\11\ Based on this vote, the widely-
respected Congressional Quarterly has identified the Amendment as
perhaps ``the pending constitutional amendment with the best chance of
being approved by Congress in the foreseeable future.'' \12\
---------------------------------------------------------------------------
\10\ See Announcement by President Bill Clinton on Victims Rights,
available in LEXIS on Federal News Service, June 25, 1996.
\11\ See S. Rep. No. 105-409 at 37 (Amendment approved by 11-6
vote).
\12\ Dan Carney, Crime Victims Amendment Has Steadfast Support, But
Little Chance of Floor Time, Cong. Quart., July 30, 1998.
---------------------------------------------------------------------------
As the Victims' Rights Amendment has moved closer to passage,
defenders of the old order have manned \13\ the barricades against its
adoption. In Congress, the popular press, and the law reviews, they
have raised a series of philosophical and practical objections to
protecting victims' rights in the Constitution. These objections run
the gamut, from the structural (the Amendment will ``change[] basic
principles that have been followed throughout American history'' \14\)
to the pragmatic (it will ``lay waste to our criminal justice system.''
\15\) to the esthetic (it will ``trivialize'' the Constitution \16\).
In some sense, such objections are predictable. The prosecutors,
defense attorneys, and judges who labor daily in the criminal justice
vineyards have long struggled to hold the balance true between the
state and the defendant. To suddenly find third parties--no, third
persons who are not even parties--threatening to storm the courthouse
gates provokes, at least from some, an understandable defensiveness. If
nothing else, victims promise to complicate life in the criminal
justice system. But more fundamentally, if these victim pleas for
recognition are legitimate, what does that say about how the system has
treated them for so many years?
---------------------------------------------------------------------------
\13\ I use the term ``man'' provocatively because certain aspects
of the defense resist efforts by feminists to provide justice to
victims of rape and domestic violence, who are disproportionately
women. See, e.g., Beverly Harris Elliott, President of the National
Coalition Against Sexual Assault, Balancing Justice: How the Amendment
Will Help All Victims of Sexual Assault, www.nvc.org/newsltr/
sexass2.htm; Joan Zorza, Victims' Rights Amendment Empowers All
Battered Women (www.nvc.org/newsltr/battwom.htm); see also infra notes
248-52 and accompanying text (discussing woman and children who have
died from lack of notice of an offender's release).
\14\ A Proposed Constitutional Amendment to Protect Victims of
Crime: Hearings before the Sen. Comm. on the Judiciary, 105th Cong, 1st
Sess. 141 (1997) (hereinafter 1997 Sen. Judiciary Comm. Hearings)
(letter from various law professors opposing the Amendment).
\15\ Proposals for a Constitutional Amendment to Provide Rights for
Victims of Crime: Hearings Before the House Judiciary Comm, 104th
Cong., 2d Sess. 143 (1996) (hereinafter 1996 House Judiciary Comm.
Hearings) (statement of Ellen Greenlee, President, National Legal Aid
and Defender Association).
\16\ A Proposed Constitutional Amendment to Establish a Bill of
Rights for Crime Victims: Hearings Before the Sen. Judiciary Comm.,
104th Cong., 2d Sess. 101 (1996) (hereinafter 1996 Sen. Judiciary Comm.
Hearings) (statement of Bruce Fein).
---------------------------------------------------------------------------
My aim here focus on how victims' rights would specifically operate
under the Victims Rights Amendment. In particular, my testimony
analyzes the objections that the Amendment's opponents have raised.\17\
It should come as no great surprise that claims the Amendment
simultaneously would ``change basic principles that have been followed
throughout American history,'' ``lay waste to our criminal justice
system,'' and--for good measure--``trivialize'' the Constitution'' are
not all true. My testimony attempts to demonstrate that, in fact, none
of these contradictory assertions is supported. A fair-minded look at
the Amendment confirms that it will not ``lay waste'' to the system,
but instead will build upon and improve it--retaining protection for
the legitimate interests of prosecutors and defendants, while adding
recognition of equally powerful interests of crime victims.
---------------------------------------------------------------------------
\17\ My testimony draws heavily on an article that will appear
shortly in a symposium issue of the Utah Law Review devoted to the
rights of crime victims. See Paul G. Cassell, Barbarians at the Gates?
A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L.
Rev.--(forthcoming). I extend my thanks to the editors of the law
review for allowing me to use some of that material here.
---------------------------------------------------------------------------
The objections to the Victims' Rights Amendment conveniently divide
into three categories, which this testimony analyzes in turn. Part I
reviews normative objections to the Amendment--that is, objections to
the desirability of the rights. The Part begins by reviewing the
defendant-oriented objections leveled against a few of the rights,
specifically the victim's right to be heard at sentencing, the victim's
right to be present at trial, and the victim's right to a trial free
from unreasonable delay. These objections lack merit. Part I concludes
by refuting the prosecution-oriented objections to victims' rights,
which revolve primarily around alleged excessive consumption of scarce
criminal justice resources. These claims, however, are inconsistent
with the available empirical evidence on the cost of victims rights
regimes in the states.
Next, Part II considers what might be styled as justification
challenges--challenges that a victims' amendment is unjustified because
victims already receive rights under the existing amalgam of state
constitutional and statutory provisions. This claim of an
``unnecessary'' amendment \18\ misconceives the undeniable practical
problems that victims face in attempting to secure their rights without
federal constitutional protection.
---------------------------------------------------------------------------
\18\ See, e.g., Robert P. Mosteller, The Victims' Rights Amendment:
The Unnecessary Amendment, 1999 Utah L. Rev.--(hereinafter Mosteller,
Unnecessary Amendment); see also Robert P. Mosteller, Victims' Rights
and the United States Constitution: An Effort to Recast the Battle in
Criminal Litigation, 85 Geo. L.J. 1691 (1997) (hereinafter Mosteller,
Recasting the Battle).
---------------------------------------------------------------------------
Part III then turns to structural objections to the Amendment--
claims that victims' rights are not properly constitutionalized.
Contrary to this view, protection of the rights of citizens to
participate in governmental processes is a subject long recognized as
an appropriate one for a constitutional amendment. Moreover,
constitutional protection for victims also can be crafted in ways that
are sufficiently flexible to accommodate varying circumstances and
varying criminal justice systems from state to state.
Finally, concludes by examining the nature of the opposition to the
Victims' Rights Amendment. Victims are not barbarians seeking to
dismantle the pillars of wisdom from previous ages. Rather, they are
citizens whose legitimate interests require recognition in any proper
system of criminal justice. The Victims' Rights Amendment therefore
deserves this Committee's full support.
I. Normative Challenges
The most basic level at which the Victims Rights' Amendment could
be disputed is the normative one: victims' rights are simply
undesirable. Few of the objections to the Amendment, however, start
from this premise. Instead, the vast bulk of the opponents flatly
concedes the vitality of victim participation in the criminal justice
system. For example, the senators on this Committee who dissented from
supporting the Amendment \19\ began by agreeing that ``[t]he treatment
of crime victims certainly is of central importance to a civilized
society, and we must never simply `pass by on the other side.'' ' \20\
Additionally, various law professors who sent a letter to Congress
opposing the Amendment similarly begin by explaining that they
``commend and share the desire to help crime victims'' and that
``[c]rime victims deserve protection. * * *'' \21\
---------------------------------------------------------------------------
\19\ Unless otherwise specifically noted, I will refer to the
minority views of Sens. Leahy, Kennedy, and Kohl as the ``dissenting
senators,'' although a few other senators also briefly offered their
dissenting views.
\20\ S. Rep. No. 105-409 at 50 (minority views of Sens. Leahy,
Kennedy and Kohl).
\21\ 1997 Law Professors Letter, reprinted in 1997 Sen. Judiciary
Comm. Hearings, supra note 14, at 141.
---------------------------------------------------------------------------
The principal critics of the Amendment agree not only with the
general sentiments of victims' rights advocates but also with many of
their specific policy proposals. Strong evidence of this agreement
comes from the federal statute proposed by the dissenting members of
this Committee, which would extend to victims in the federal system
most of the same rights provided in the Amendment.\22\ Other critics,
too, have suggested protection for victims in statutory rather than
constitutional terms.\23\ In parsing through the relevant congressional
hearings and academic literature, many of the important provisions of
the Amendment appear to garner wide acceptance. Few disagree, for
example, that victims of violent crime should receive notice that the
offender has escaped from custody and should receive restitution from
an offender. What is most striking, then, about debates over the
Amendment is not the scattered points of disagreement, but rather the
abundant points of agreement.\24\ This harmony suggests that the
Amendment satisfies a basic requirement for a constitutional
amendment--that it reflect values widely shared throughout society.
There is, to be sure, normative disagreement about some of the proposed
provisions in the Amendment, disagreements analyzed below. But the
natural tendency to focus on points of conflict should not obscure the
substantial points of widespread agreement.
---------------------------------------------------------------------------
\22\ See S. 1081, 105th Cong., 1st Sess. 1997; see also S. Rep. No.
105-409 at 77 (minority views of Sens. Leahy, Kennedy and Kohl)
(defending this statutory protection of victims rights).
\23\ See, e.g., 1997 Law Professors Letter (``crime victims deserve
protection, but this should be accomplished by statutes, not a
constitutional amendment. * * *''), reprinted in 1997 Sen. Judiciary
Comm. Hearings, supra note 14, at 141.
\24\ See generally Stephen J. Twist, The Crime Victims' Rights
Amendment and Two Good and Perfect Things, 1999 Utah L. Rev.--
(forthcoming) (noting frequency with which opponents of the Victims'
Rights Amendment endorse the goals in the amendment).
---------------------------------------------------------------------------
While near consensus has been reached on the desirability of many
of the values reflected in the Amendment, critics dispute a few rights
are disputed on grounds that can be conveniently divided into two
groups. Some rights are challenged as unfairly harming defendants'
interests in the process, others as harming prosecutors'. That the
Amendment has drawn fire from some on both sides might suggest that it
has things about right in the middle. Contrary to these criticisms,
however, the Amendment does not harm the legitimate interests of either
side.
a. defendant-oriented challenges to victims' rights
Perhaps the most frequently-repeatedly claim against the Amendment
is that it would harm defendants' rights. Often this claim is made in
general terms, relying on little more than the reflexive view that
anything good for victims must be bad for defendants. But, as the
general consensus favoring victims' rights suggests, rights for victims
need not come at the expense of defendants. Strong supporters of
defendants' rights agree. Professor Laurence Tribe, for example, has
concluded that the proposed Amendment is ``a carefully crafted measure,
adding victims' rights that can coexist side by side with
defendant's.'' \25\ Similarly, Senator Joseph Biden agrees that ``I am
now convinced that no potential conflict exists between the victims'
rights enumerated in the [proposed Amendment] and any existing
constitution right afforded to defendants.'' \26\ A recent summary of
the available research on the purported conflict of rights supports
these views, finding that victims' rights do not harm defendants:
---------------------------------------------------------------------------
\25\ See Laurence H. Tribe & Paul G. Cassell, Embed the Rights of
Victims in the Constitution, L.A. Times, July 6, 1998, at B5. For a
more detailed exposition of Professor Tribe's views, see 1996 House
Judiciary Comm. Hearings, supra note 15, at 238 (letter from Professor
Tribe).
\26\ S. Rep. 105-409 (additional views of Sen. Biden).
Studies show that there ``is virtually no evidence that the
victims' participation is at the defendant's expense.'' For
example, one study, with data from thirty-six states, found
that victim-impact statutes resulted in only a negligible
effect on sentence type and length. Moreover, judges
interviewed in states with legislation granting right to the
crime victim indicated that the balance was not improperly
tipped in favor of the victim. One article studied victim
participation in plea bargaining found that such involvement
helped victims ``without any significant detrimental impact to
the interests of prosecutors and defendants.'' Another national
study in states with victims' reforms concluded that: ``Victim
satisfaction with prosecutors and the criminal justice system
was increased without infringing on the defendant's rights.''
\27\
---------------------------------------------------------------------------
\27\ Richard Barajas & Scott Alexander Nelson, The Proposed Crime
Victims' Federal Constitutional Amendment: Working Toward a Proper
Balance, 49 Baylor L. Rev. 1, 18-19 (1987) (quoting Deborah P. Kelly,
Have Victim Reforms Gone Too Far--or Not Far Enough?, 5 Crim. Just.,
Fall 1991, at 22; Sarah N. Welling, Victim Participation in Plea
Bargains, 65 Wash. U.L.Q. 301, 355 (1987)).
Given these empirical findings, it should come as no surprise that
claims that the Amendment would injure defendants rest on a predicted
parade of horribles, not any real world experience. Yet the experience
suggests that the parade will never materialize, particularly given the
redrafting of the proposed amendment to narrow some of the rights it
extends.\28\ A careful examination of the most-often advanced claims of
conflict with defendants' legitimate interests reveals that any
purported conflict is illusory.\29\
---------------------------------------------------------------------------
\28\ As originally proposed, the Amendment extended victims a broad
right ``to a final disposition of the proceedings relating to the crime
free from unreasonable delay.'' S.J. Res. 6 (1995). It now provides
victims a narrower right to ``consideration of the interest of the
victim that any trial be free from unreasonable delay.'' S.J. Res. 3
(1999). This narrower formulation, limited to a ``trial,'' avoids the
objection that an open-ended right to a speedy disposition could
undercut a defendant's post-trial, habeas corpus rights, particularly
in capital cases. See, e.g, 1997 Senate Judiciary Comm. Hearings, supra
note 14, at 155 (statement of Mark Kappelhoof, ACLU Legislative
Counsel).
As originally proposed, the Amendment also promised victims a broad
right to ``be reasonably protected from the accused.'' S.J. Res. 6
(1995). It now provides victims a right to ``have the safety of the
victim considered in determining a release from custody.'' S.J. Res. 3
(1999). This narrower formulation was apparently designed, in part, to
respond to the objection that the Amendment might be construed to hold
offenders ``beyond the maximum term or even indefinitely if they are
found to pose a danger to their victims.'' See 1997 Senate Judiciary
Comm. Hearings, supra note 14, at 155 (statement of Mark Kappelhoof,
ACLU Legislative Counsel).
Professor Mosteller has argued that these particular changes, and
several others like them, were designed to move the Amendment away from
providing aid to victims to instead provide nothing but a benefit to
prosecutors. Robert P. Mosteller, Victims' Rights and the Constitution:
Moving from Guaranteeing Participatory Rights to Benefiting the
Prosecution, 29 St. Mary's L.J. 1053, 1058 (1998). This strikes me as a
curious view, given the way in which these changes responded to
concerns expressed by advocates of defendants' rights, including
Mosteller himself. See Mosteller, Recasting the Battle, supra note 18,
at 1707 n.58. More generally, it should be clear that the proposed
Amendment is not predicated on the idea of providing benefits to
prosecutors. Not only has the Amendment been attacked as harming
prosecution interests, see infra notes 121-41 and accompanying text,
but it does not attempt to achieve such favorite goals of prosecutors:
overturning the exclusionary rule. Cf. Cal. Const. art. I, Sec. 28
(victims initiative restricting exclusion of evidence); Or. Const.,
art. I, Sec. 42 (same), invalidated, Armatta v. Kitzhaber, 959 P.2d
49(Or. 1998) (initiative violated single subject rule). See generally
President's Task Force on Victims of Crime, Final Report 24-26 (1982)
(urging abolition of exclusionary rule on victim-related grounds).
\29\ Until the opponents of the Amendment can establish any
conflict between defendants' rights under the Constitution and victims'
rights under the Amendment, there is no need to address the subject of
how courts should balance the rights in case of conflict. Cf S. Rep.
105-409 at 22-23 (explaining reasons for rejecting balancing language
in the Amendment).
---------------------------------------------------------------------------
1. The right to be heard
Some opponents of the Amendment object that the victim's right to
heard will interfere with a defendant's efforts to mount a defense. At
least some of these objections appear to misunderstand the scope of the
Amendment. For example, to prove that a victim's right to be heard is
undesirable, objectors sometimes claim (as was done in the minority
report of this Committee) that the proposed Amendment ``gives victims a
constitutional right to be heard, if present, and to submit a statement
at all stages of the criminal proceeding.'' \30\ From this premise, the
objectors then postulate that the Amendment would make it ``much more
difficult for judges to limit testimony by victims at trial'' and
elsewhere to the detriment of defendants.\31\ Yet, far from extending
victims the right to be heard at ``all'' stages of a criminal case
including the trial, the Amendment explicitly limits the right to
public ``proceedings to determine a conditional release from custody,
an acceptance of a negotiated plea, or a sentence. * * *'' \32\ At
these three kinds of hearings--bail, plea, and sentencing--victims have
compelling reasons to be heard and can be heard without adversely
affecting defendant's rights.
---------------------------------------------------------------------------
\30\ S. Rep. 105-409 at 66 (minority views of Sens. Leahy, Kennedy
and Kohl) (emphasis added).
\31\ Id. (minority views of Sens. Leahy, Kennedy and Kohl).
\32\ S.J. Res. 3, Sec. 1 (1999).
---------------------------------------------------------------------------
Proof that victims can properly be heard at these points comes from
a legislative proposal by several dissenting members of this Committee.
While criticizing the right to be heard in the constitutional
amendment, these senators simultaneously sponsored federal legislation
to extend to victims in the federal system precisely the same
rights.\33\ They urged their colleagues to pass their statute in lieu
of the Amendment because ``our bill provides the very same rights to
victims as the proposed constitutional amendment. * * *'' \34\ In
defending their bill, they saw no difficulty with giving victims a
chance to be heard,\35\ a right that already exists in many states.\36\
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\33\ See S. 1081, 105th Cong., 1st Sess. Sec. 101 (right to be
heard on the issue of detention); Sec. 121 (right to be heard on merits
of plea agreement); Sec. 122 (enhanced right of allocution at
sentencing).
\34\ S. Rep. 105-409 at 50 (minority views of Sens. Leahy and
Kennedy).
\35\ See, e.g., Cong. Rec., July 29, 1997, at S8275 (statement of
Sen. Kennedy); Statement of Sen. Patrick Leahy on the Introduction of
the Crime Victims Assistance Act, July 29, 1997.
\36\ See Paul G. Cassell, Balancing the Scales of Justice: The Case
for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L.
Rev. 1373, 1394-96.
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A more detailed critique of the victim's right to be heard is found
in a recent prominent article by Professor Susan Bandes.\37\ Like most
other opponents of the Amendment, she concentrates her intellectual
fire on the victims' right to be heard at sentencing, arguing that
victim impact statements are inappropriate narratives to introduce in
capital sentencing proceedings. While rich in insights about the
implications of ``outsider narratives,'' the article provides no
general basis for objecting to a victim's right to be heard at
sentencing. Her criticism of victim impact statements is limited to
capital cases, a tiny fraction of all criminal trials.\38\
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\37\ See Susan Bandes, Empathy, Narrative, and Victim Impact
Statements, 63 U. Chi. L. Rev. 361 (1996).
\38\ See id. at 392-93. In a recent conversation, Professor Bandes
stated that though her article focused on the capital context, she did
not intend to imply that victim impact statements ought to be
admissible in non-capital cases. Indeed, based on the proponents'
argument that victim impact statements by relatives and friends are
needed because the homicide victim is, by definition, unavailable, she
believes such statements would seem even less defensible in non-
homicide cases. This extension of her argument seems unconvincing, as
the case for excluding victim statements is stronger for capital cases
than for others. Not only are noncapital cases generally less fraught
with emotion, but the sentence is typically imposed by a judge, who can
sort out any improper aspects of victim statements. For this reason,
even when victim impact testimony was denied in capital case to juries,
courts often concluded that judges could hear the same evidence. See
Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987); State v.
Card, 825 P.2d 1081, 1089 (Idaho 1991); State v. Johnson, 594 N.E.2d
253, 270 (Ill. 1992); State v. Beaty, 762 P.2d 519, 531 (Ariz. 1988),
cert. denied, 491 U.S. 910 (1989); State v. Post, 513 N.E.2d 754, 759
(Ohio 1987). It is also hazardous to generalize about such testimony
given the vast range of varying circumstances presented by noncapital
cases. See generally Stephen J. Schulhofer, The Trouble with Trials;
the Trouble with Us, 105 Yale L.J. 825, 848-49 (1995) (noting
differences between victim participation in capital and noncapital
sentencings and concluding ``wholesale condemnation of victim
participation under all circumstances is surely unwarranted'').
---------------------------------------------------------------------------
Professor Bandes' objection is important to consider carefully
because it presents one of the most thoughtfully developed cases
against victim impact statements.\39\ Her case, however, is ultimately
unpersuasive. She agrees that capital sentencing decisions ought to
rest, at least in part, on the harm caused by murderers. She explains
that, in determining which murderers should receive the death penalty,
society's ``gaze ought to be carefully fixed on the harm they have
caused and their moral culpability for that harm. * * *'' \40\ Bandes
then contends that victim impact statements divert sentencers from that
inquiry to ``irrelevant fortuities'' about the victims and their
families.\41\ But in moving on to this point, she apparently assumes
that a judge or jury can comprehend the full harm caused by a murder
without hearing testimony from the surviving family members. That
assumption is simply unsupportable. Any reader who disagrees with me
should take a simple test. Read an actual victim impact statement from
a homicide case all the way through and see if you truly learn nothing
new about the enormity of the loss caused by a homicide. Sadly, the
reader will have no shortage of such victim impact statements to choose
from. Actual impact statements from court proceedings are accessible in
various places.\42\ Other examples can be found in moving accounts
written by family members who have lost a loved one to a murder. A
powerful example is the collection of statements from families
devastated by the Oklahoma City bombing collected in Marsha Kight's
affecting Forever Changed: Remembering Oklahoma City April 19,
1995.\43\ Kight's compelling book is not unique, as equally powerful
accounts from the family of Ron Goldman,\44\ children of Oklahoma
City,\45\ Alice Kaminsky,\46\ George Lardner Jr.,\47\ Dorris Porch and
Rebecca Easley,\48\ Mike Reynolds,\49\ Deborah Spungen,\50\ John
Walsh,\51\ and Marvin Weinstein \52\ make all too painfully clear.
Intimate third party accounts offer similar insights about the
generally unrecognized yet far-ranging consequences of homicide.\53\
---------------------------------------------------------------------------
\39\ Several other articles have also focused on and carefully
developed a case against victim impact statements. See, e.g., Lynne N.
Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937, 986-
1006 (1985); Donald J. Hall, Victims' Voices in Criminal Court: The
Need for Restraint, 28 Am. Crim. L. Rev. 233 (1991). Because Professor
Bandes' is the most current, I focus on it here as exemplary of the
critics' position.
\40\ See Bandes, supra note 37, at 398 (emphasis added).
\41\ See id. at 398-99.
\42\ See, e.g., Booth v. Maryland, 482 U.S. 496, 509-515 (1987); A
Federal Judge Speaks Out for Victims, Am. Lawyer, Mar. 20, 1995, at 4
(statement by federal judge Michael Luttig at the sentencing of his
father's murderers); United States v. McVeigh, 1997 WL 296395 (various
victim impact statements at sentencing of Timothy McVeigh); United
States v. Nichols, 1997 WL at 790551 (various victim impact statements
at sentencing of Terry Nichols).
\43\ Marsha Kight, Forever Changed: Remembering Oklahoma City,
April 19, 1995 (1998).
\44\ The Family of Ron Goldman, His Name is Ron (1997).
\45\ Nancy Lamb and Children of Oklahoma City, One April Morning:
Children Remember the Oklahoma City Bombing (1996).
\46\ Alice R. Kaminsky, The Victim's Song (1985).
\47\ George Lardner Jr., The Stalking of Kristin: A Father
Investigates the Murder of His Daughter (1995).
\48\ Dorris D. Porch & Rebecca Easley, Murder in Memphis: The True
Story of a Family's Quest for Justice (1997).
\49\ Mike Reynold & Bell Jones, Three Strikes and You're Out * * *
A Promise to Kimber: The Chronicle of America's Toughest Anti-Crime Law
(1996).
\50\ Deobrah Spungen, And I Don't Want to Live This Life (1984).
\51\ John Walsh, Tears of Rage: From Grieving Father to Crusader
for Justice: The Untold Story of The Adam Walsh Case (1997). Professor
Henderson describes Walsh as preaching a ``gospel of rage and
revenge.'' Lynne Henderson, Victims Rights in Theory and Practice, 1999
Utah L. Rev.--(forthcoming). This seems to me to misunderstand Walsh's
efforts, which Walsh has explained as making sure that his son Adam
``didn't die in vain.'' Walsh, supra, at 305. Walsh's Herculean efforts
to establish the National Center for Missing and Exploited Children,
see id, at 131-58, is a prime example of neither rage nor revenge, but
rather a desirable public policy reform springing from a tragic crime.
\52\ Milton J. Shapiro with Marvin Weinstein, Who Will Cry for
Staci? The True Story of a Grieving Father's Quest for Justice (1995).
\53\ See, e.g., Shelley Neiderbach, Invisible Wounds: Crime Victims
Speak (1986); Gary Kinder, Victim (1982); Joseph Wambaugh, The Onion
Field (1973); Deborah Spungeon, Homicide: The Forgotten Victims (1998);
Janice Harris Lord, No Tine for Goodbyes: Coping with Sorrow, Anger and
Injustice After a Tragic Death (4th ed. 1991).
---------------------------------------------------------------------------
Professor Bandes acknowledges the power of hearing from victims'
families. Indeed, in a commendable willingness to present victim
statements with all their force, she begins her article by quoting from
victim impact statement at issue in Payne v. Tennessee, a statement
from Mary Zvolanek about her daughter's and granddaughter's deaths and
their effect on her three-year-old grandson:
He cries for his mom. He doesn't seem to understand why she
doesn't come home. And he cries for his sister Lacie. He comes
to me many times during the week and asks me, Grandmama, do you
miss my Lacie. And I tell him yes. He says, I'm worried about
my Lacie.\54\
\54\ Bandes, supra note 37, at 361 (quoting Payne v. Tennessee, 501
U.S. 808, 814-15 (1991)).
Bandes quite accurately observes that the statement is
``heartbreaking'' and ``[o]n paper, it is nearly unbearable to read.''
\55\ She goes on to argue that such statements are ``prejudicial and
inflammatory'' and ``overwhelm the jury with feelings of outrage.''
\56\ In my judgment, Bandes fails here to distinguish sufficiently
between prejudice and unfair prejudice from a victim's statement. It is
a commonplace of evidence law that a litigant is not entitled to
exclude harmful evidence, but only unfairly harmful evidence.\57\
Bandes appears to believe that a sentence imposed following a victim
impact statement rests on unjustified prejudice; alternatively, one
might conclude simply that the sentence rests on a fuller understanding
of all of the murder's harmful ramifications. Why is ``heartbreaking''
and ``nearly unbearable to read'' about what it is like for a three-
year-old to witness the murder of his mother and his two-year-old
sister? The answer, judging from why my heart broke as I read the
passage, is that we can no longer treat the crime as some abstract
event. In other words, we begin to realize the nearly unbearable
heartbreak--that is, the actual and total harm--that the murderer
inflicted.\58\ Such a realization may hamper a defendant's efforts to
escape a capital sentence. But given that loss is a proper
consideration for the jury, the statement is not unfairly detrimental
to the defendant. Indeed, to conceal such evidence from the jury may
leave them with a distorted, minimized view of the impact of the
crime.\59\ Victim impact statements are thus easily justified because
they provide the jury with a full picture of the murder's
consequences.\60\
---------------------------------------------------------------------------
\55\ Id. at 361.
\56\ Id. at 401.
\57\ See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence
Sec. 4.5. at 197 (1995).
\58\ Cf. Erez, Who's Afraid of the Victim?, supra note 69, at [13]
(``legal professionals [in South Australia] who have been exposed to
[victim impact statements] have commented on how uninformed they were
about the extent, variety and longevity of various victimization, how
much they have learned * * * about the impact of crime on victims'').
\59\ See Brooks Douglas, Oklahoma's Victim Impact Legislation: A
New Voice for Victims and Their Families, 46 Okla. L. Rev. 283, 289
(1993) (offering an example of a jury denied the truth about the full
impact of a crime).
\60\ In addition to allow assessment of the harm of the crime,
victim impact statements are also justified because they provide ``a
quick glimpse of the life which the defendant choose to extinguish.''
Payne v. Tennessee, 501 U.S. at 822 (internal quotations omitted). In
the interests of brevity, I will not develop such an argument here, nor
will I address the more complicated issues surrounding whether a
victim's family members may offer opinions about the appropriate
sentence for a defendant. See id. at 830 n.2 (reserving this issue); S.
Rep. No. 105-409 at 28-29 (indicating that the Victims' Rights
Amendment does not alter laws precluding victim opinion as to the
proper sentence).
---------------------------------------------------------------------------
Bandes also contends that impact statements ``may completely
block'' the ability of the jury to consider mitigation evidence.\61\ It
is hard to assess this essentially empirical assertion, because Bandes
does not present direct empirical support.\62\ Clearly many juries
decline to return death sentences even when presented with powerful
victim impact testimony, with Terry Nichols' life sentence for
conspiring to set the Oklahoma City bomb a prominent example. Indeed,
one recent empirical study of decisions from jurors who actually served
in capital cases found that facts about adult victims ``made little
difference'' in death penalty decisions.\63\ A case might be crafted
from the available national data that Supreme Court decisions on victim
impact testimony did, at the margin, alter some cases. It is arguable
that the number of death sentences imposed in this country fell after
the Supreme Court prohibited use of victim impact statements in 1987
\64\ and then rose when the Court reversed itself a few years
later.\65\ This conclusion, however, is far from clear \66\ and, in any
event, the likelihood of a death sentence would be, at most, marginal.
The empirical evidence in non-capital cases also finds little effect on
sentence severity. For example, a study in California found that
``[t]he right to allocution at sentence has had little net effect * * *
on sentences in general.'' \67\ A study in New York similarly reported
``no support for those who argue against [victim impact] statements on
the grounds that their use places defendants in jeopardy.'' \68\ A
recent comprehensive review of all of the available evidence in this
country and elsewhere by a careful scholar concludes ``sentence
severity has not increased following the passage of [victim impact]
legislation.'' \69\ It is thus unclear why we should credit Bandes'
assertion that victim impact statements seriously hamper the defense of
capital defendants.
---------------------------------------------------------------------------
\61\ Bandes, supra note 37, at 402.
\62\ The only empirical evidence Bandes discusses concerns the
alleged race-of-the-victim effect found in the Baldus study of Georgia
capital cases in the 1980's. This study, however, sheds no direct light
on the effect of victim impact statements on capital sentencing, as
victim impact evidence apparently was not, and indeed could not have
been at that time, one of the control variables. See Ga. Code Ann.
Sec. Sec. 17-10-1.1, -1.2 (Mich. Supp. 1986) (barring victim impact
testimony). Had victim impact evidence been one of the variables, it
seems likely that any race-of-the-victim effect would have been reduced
by giving the jurors actual information about the uniqueness and
importance of the life taken, thereby eliminating the jurors' need to
rely on stereotypic, and potentially race-based, assumptions. In any
event, there is no need to ponder such possibilities at length here
because the race-of-the-victim ``effect'' disappeared when important
control variables were added to the regression equations. See McCleskey
v. Zant, 580 F. Supp. 338, 366 (D. Ga. 1984), aff'd in part and rev'd
in part, 753 F.2d 877 (11th Cir. 1986), aff'd, 481 U.S. 279 (1987).
\63\ Stephen P. Garvey, Aggravation and Mitigation in Capital
Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1556 (1998). The
study concluded that jurors would be more likely to impose death if the
victim was a child, id, and that ``extreme caution'' was warranted in
interpreting its findings. Id. It should be noted that the study data
came from cases between roughly 1986 and 1993, when victim impact
statements were not generally used. See id. at 1554. However, it is
possible that a victim impact statement may have been introduced in a
few of the cases in the data set after the 1991 Payne decision. EMAIL
from Prof. Stephen P. Garvey to Prof. Paul G. Cassell, Feb. 11, 1999
(on file with author).
Garvey's methodology of surveying real juries about real cases
seems preferable to relying on mock jury research, which suggests that
victim impact statements may affect jurors' views about capital
sentencing. See Edith Greene, The Many Guises of Victim Impact Evidence
and Effects on Jurors' Judgments,--Psychology, Crime & Law--
(forthcoming 1999); Edith Greene & Heather Koehring, Victim Impact
Evidence in Capital Cases: Doe the Victim's Character Matter?, 28 J.
Applied Social Psychology 145 (1998); James Luginbuhl & Michael
Burkhead, Victim Impact Evidence in Capital Trial: Encouraging Votes
for Death, 20 Am. J. Crim. Just. 1 (1995); but cf. Ronald Mazzella &
Alan Feingold, The Effects of Physical Attractiveness, Race,
Socioeconomic Status, and Gender of Defendants and Victims on Judgments
of Mock Jurors: A Meta-Analysis, 1994 J. Applied Social Psychology 1315
(1994) (meta-analysis of previous research finds that effects of victim
characteristics on juror's judgments were generally inconsequential).
Whether mock jury simulations capture real world effects is open to
question generally. See Paul G. Cassell, The Guilty and the
``Innocent'': An Examination of Alleged Cases of Wrongful Conviction
from False Confession,--Harv. J.L. & Pub. Pol'y--, --(forthcoming
1999); Free v. Peters, 12 F.3d 700, 705-06 (7th Cir. 1994) (en banc).
The concerns about the realism of mock jury research apply with
particular force to emotionally-charged death penalty verdicts. See
Mark Costanzo & Sally Costanzo, Jury Decision Making in the Capital
Penalty Phase, 16 Law & Human Behavior 185, 191 (1992) (``the very
nature of the [death] penalty decision may render it an inappropriate
topic for jury simulation studies'').
\64\ See Booth v. Maryland, 482 U.S. 496 (1987).
\65\ See Payne v. Tennessee, 501 U.S. 808 (1991).
\66\ A full discussion of the data is found in Appendix B of my
forthcoming article in the Utah Law Review, supra note 17.
\67\ See U.S. Dep't of Justice, Nat'l Inst. of Justice, Victim
Appearances at Sentencing Hearings Under the California Victim's Bill
of Rights 61 (1987) () (hereinafter NIJ Sentencing Study).
\68\ Robert C. Davis & Barbara E. Smith, The Effects of Victim
Impact Statements on Sentencing Decisions: A Test in an Urban Setting,
11 Just. Quart. 453, 466 (1994); accord Robert C. Davis et al., Victim
Impact Statements: Their Effects on Court Outcomes and Victim
Satisfaction 68 (1990).
\69\ Edna Erez, Wno's Afraid of the Big Bad Victim? Victim Impact
Statements as Victim Empowerment and Enhancement of Justice,--Crim. L.
Rev.--(forthcoming 1999) (hereinafter Erez, Who's Afraid of the
Victim?); accord Edna Erez, Victim Participation in Sentencing: And the
Debate Goes On * * *, 3 Int'l Rev. of Victimology 17, 22 (1994)
(``[r]esearch on the impact of victims' input on sentencing outcome is
inconclusive. At best it suggests that victim input has only a limited
effect'') (hereinafter Erez, Victim Participation). For further
discussion of the effect of victim impact statements, see, e.g., Edna
Erez & Pamela Tontodonato, The Effect of Victim Participation in
Sentencing on Sentence Outcome, 28 Criminology 451, 467 (1990); Susan
W. Hillenbrand & Barbara E. Smith, Victims Rights Legislation: An
Assessment of Its Impact on Criminal Justice Practitioners and Victims,
A Study of the ABA Criminal Justice Section Victim Witness Project 159
(1989); see also Edna Erez & L. Roeger, The Effect of Victim Impact
Statements on Sentencing Patterns and Outcomes: The Australian
Experience, 23 J. Crim. Justice 363 (1995) (Australian study); R.
Douglas et al., Victims of Efficiency: Tracking Victim Information
Through the System in Victoria, Australia, 3 Int'l Rev. of Victimology
95 (1994) (same); Edna Erez, Victim Impact Statements and Sentencing
Outcomes and Process: The Perspectives of Legal Professionals, 39
British J. of Criminology 216 (forthcoming 1999) (same).
---------------------------------------------------------------------------
Even if such an impact on capital sentences were proven, it would
be susceptible to the reasonable interpretation that victim testimony
did not ``block'' jury understanding, but rather presented information
about the full horror of the murder or put in context mitigating
evidence of the defendant. Professor David Friedman has suggested this
conclusion, observing that ``[i]f the legal rules present the defendant
as a living, breathing human being with loving parents weeping on the
witness stand, while presenting the victim as a shadowy abstraction,
the result will be to overstate, in the minds of the jury, the cost of
capital punishment relative to the benefit.'' \70\ Correcting this
misimpression is not distorting the decision-making process, but
eliminating a distortion that would otherwise occur.\71\ This
interpretation meshes with empirical studies in non-capital cases
suggesting that, if a victim impact statement makes a difference in
punishment, the description of the harm sustained by the victims is the
crucial factor.\72\ The studies thus indicate that the general tendency
of victim impact evidence is to enhance sentence accuracy and
proportionality rather than increase sentence punitiveness.\73\
---------------------------------------------------------------------------
\70\ David D. Friedman, Should the Characteristics of Victims and
Criminals Count?: Payne v. Tennessee and Two Views of Efficient
Punishment, 34 Boston College L. Rev. 731, 749 (1993).
\71\ See id.
\72\ See Erez & Tontodonato, supra note 69, at 469.
\73\ See Erez, Perspectives of Legal Professionals, supra note 69,
at [30] (South Australian study); see also Edna Erez, Victim
Participation in Sentencing: Rhetoric and Reality, 18 J. Crim. Justice
19 (1990).
---------------------------------------------------------------------------
Finally, Bandes and other critics argue that victim impact
statements result in unequal justice.\74\ Justice Powell made this
claim in his since-overturned decision in Booth v. Maryland, arguing
that ``in some cases the victim will not leave behind a family, or the
family members may be less articulate in describing their feelings even
though their sense of loss is equally severe.'' \75\ This kind of
difference, however, is hardly unique to victim impact evidence.\76\ To
provide one obvious example, current rulings from the Court invite
defense mitigation evidence from a defendant's family and friends,
despite the fact that some defendants may have more or less articulate
acquaintances. In Payne, for example, the defendant's parents testified
that he was ``a good son'' and his girlfriend testified that he ``was
affectionate, caring, and kind to her children.'' \77\ In another case,
a defendant introduced evidence of having won a dance choreography
award while in prison.\78\ Surely this kind of testimony, no less than
victim impact statements, can vary in persuasiveness in ways not
directly connected to a defendant's culpability.\79\ Yet it is
routinely allowed. One obvious reason is that if varying persuasiveness
were grounds for an inequality attack, then it is hard to see how the
criminal justice system could survive at all. Justice White's powerful
dissenting argument in Booth went unanswered, and remains unanswerable:
``No two prosecutors have exactly the same ability to present their
arguments to the jury; no two witnesses have exactly the same ability
to communicate the facts; but there is no requirement * * * the
evidence and argument be reduced to the lowest common denominator.''
\80\
---------------------------------------------------------------------------
\74\ See, e.g., Bandes, supra note 37, at 408.
\75\ 482 U.S. at 505, overruled in Payne v. Tennessee, 501 U.S. 808
(1991).
\76\ See Paul Gewirtz, Victims and Voyeurs at the Criminal Trial,
90 Nw. U.L. Rev. 863, 882 (1996).
\77\ Payne, 501 U.S. at 826.
\78\ See Boyde v. California, 494 U.S. 370, 382 n.5 (1990). See
generally Comment, Retribution's ``Harm'' Component and the Victim
Impact Statement: Finding a Workable Model, 18 U. Dayton L. Rev. 389,
416-17 (1993).
\79\ Cf. Walton v. Arizona, 497 U.S. 639, 674 (1990) (Scalia, J.,
concurring) (criticizing decisions allowing such varying mitigating
evidence on equality grounds).
\80\ Booth, 482 U.S. at 518 (White, J., dissenting).
---------------------------------------------------------------------------
Given that our current system allows almost unlimited mitigation
evidence on the part of the defendant, an argument for equal justice
requires, if anything, that victim statements be allowed. Equality
demands fairness not only between cases, but also within cases.\81\
Victims and the public generally perceive great unfairness in a
sentencing system with ``one side muted.'' \82\ The Tennessee Supreme
Court stated the point bluntly in its decision in Payne, explaining
that ``[i]t is an affront to the civilized members of the human race to
say that at sentencing in a capital case, a parade of witnesses may
praise the background, character and good deeds of a Defendant. * * *
without limitation as to relevancy, but nothing may be said that bears
upon the character of, or the harm imposed, upon the victims.'' \83\
With simplicity but haunting eloquence, a father whose ten-year-old
daughter Staci was murdered, made the same point. Before the sentencing
phase began, Marvin Weinstein asked the prosecutor to speak to the jury
because the defendant's mother would have the chance to do so. The
prosecutor replied that Florida law did not permit this. Here was
Weinstein's response to the prosecutor:
---------------------------------------------------------------------------
\81\ Gewirtz, supra note 76, at 880-82; see also Beloof, supra note
89 (noting this value as part of a third model of criminal justice);
President's Task Force on Victims of Crime, Final Report 16 (1982).
\82\ Id. at 520 (Scalia, J., dissenting); accord President's Task
Force on Victims of Crime, Final Report 77 (1982); Gewirtz, supra note
76, at 825-26.
\83\ Tennessee v. Payne, 791 S.W.2d 10, 19 (1990), aff'd, 501 U.S.
808 (1991).
What? I'm not getting a chance to talk to the jury? He's not
a defendant anymore. He's a murderer! A convicted murderer! The
jury's made its decision. * * * His mother's had her chance all
through the trial to set there and let the jury see her cry for
him while I was barred.\84\ * * * Now she's getting another
chance? Now she's going to sit there in that witness chair and
cry for her son, that murderer, that murderer who killed my
little girl! Who will cry for Staci? Tell me that, who will cry
for Staci? \85\
---------------------------------------------------------------------------
\84\ Weinstein was subpoenaed by the defense as a witness and
therefore required to sit outside the courtroom. See Shapiro, supra
note 52, at 215-16.
\85\ Id. at 319-20.
There is no good answer to this question,\86\ a fact that has led to a
change in the law in Florida and, indeed, all around the country. Today
the laws of the overwhelming majority of states admit victim impact
statements in capital and other cases.\87\ These prevailing views lend
strong support to the conclusion that equal justice demands the
inclusion of victim impact statements, not their exclusion.
---------------------------------------------------------------------------
\86\ A narrow, incomplete answer might be that neither the
defendant's mother nor the victim's father should be permitted to cry
in front of the jury. But assuming an instruction from the judge not to
cry, the question would still remain why the defendant's mother could
testify, but not the victim's father.
\87\ See, e.g., Ariz. Rev. Stat. Sec. 13-4410(C), -4424, -4426; Md.
Code (1957, 1993 Repl. Vol.), Art. 41, S 4-609(d); N.J. Stat. Ann.
2C:11-3c(6); Utah Code Ann. 76-3-207(2). See generally State v.
Muhammad, 678 A.2d 164, 177-78 (N.J. 1996) (collecting state cases
upholding victim impact evidence in capital cases); Payne v. Tennessee,
501 U.S. at 821 (Congress and most states allow victim impact
statements). These laws answer Bandes' brief allusion to the principle
of nulla poena sine lege (the requirement of prior notice that
particular conduct is criminal). See Bandes, supra note 37, at 396
n.177. Because murderers are now plainly on notice that impact
testimony will be considered at sentencing, the principle is not
violated. Murderers can also fully foresee the possibility of victim
impact testimony. Murder is always committed against ``a `unique'
individual, and harm to some group of survivors is a consequence of a
successful homicidal act so foreseeable as to be virtually
inevitable.'' Payne v. Tennessee, 501 U.S. at 838 (Souter, J.,
concurring). Moreover, it is unclear the extent to which nulla poena
sine lege is designed to regulate sentencing decisions. The principle
is one that ``condemns judicial crime creation,'' Bynum v. State, 767
S.W.2d 769, 773 n.5 (Tex. Ct. Crim. Apps. 1989), not crafting of
appropriate penalties for a previously-defined crime like capital
murder.
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These arguments sufficiently dispose of the critics' main
contentions.\88\ Nonetheless, it is important to underscore that the
critics generally fail to grapple with one of the strongest
justifications for admitting victim impact statements: avoiding
additional trauma to the victim. For all the fairness reasons just
explained, gross disparity between defendants' and victims' rights to
allocute at sentencing creates the risk of serious psychological injury
to the victim.\89\ As Professor Doug Beloof has nicely explained, a
justice system that fails to recognize a victim's right to participate
threatens ``secondary harm''--that is, harm inflicted by the operation
of government processes beyond that already caused by the
perpetrator.\90\ This trauma stems from the fact that the victim
perceives that the system's resources ``are almost entirely devoted to
the criminal, and little remains for those who have sustained harm at
the criminal's hands.'' \91\ As two noted experts on the psychological
effects of crime have concluded, failure to offer victims a chance to
participate in criminal proceedings can ``result in increased feelings
of inequity on the part of the victims, with a corresponding increase
in crime-related psychological harm.'' \92\ On the other hand, there is
mounting evidence that ``having a voice may improve victims' mental
condition and welfare.'' \93\ For some victims, making a statement
helps restore balance between themselves and the offenders. Others may
consider it part of a just process or may want to communicate the
impact of the offense to the offender.\94\ This multiplicity of reasons
explains why victims and surviving family members want so desperately
to participate in sentencing hearings, even though their participation
may not necessarily change the outcome.\95\
---------------------------------------------------------------------------
\88\ Professor Bandes and others also have suggested that the
admission of victim impact statements would lead to offensive
minitrials on the victim's character. See, e.g., Bandes, supra note 37,
at 407-08. However, a recent survey of the empirical literature
concludes that ``[c]oncern that defendants would challenge the content
of [victim impact statements] thereby subjecting victims to unpleasant
cross examination on their statements has also not materialized'').
Erez, Who's Afraid of the Victim?, supra note 69, at 6. In neither the
McVeigh nor Nichols trials, for example, did aggressive defense
attorneys cross-examine the victims at any length about the impact of
the crime.
\89\ For general discussion of the harms caused by disparate
treatment, see Lee Madigan & Nancy C. Gamble, The Second Rape:
Society's Continued Betrayal of the Victim 97 (1989); Linda E. Ledray,
Recovery from Rape 125 (2d ed. 1994); Marlene A. Young, A
Constitutional Amendment for Victims of Crime: The Victims'
Perspective, 34 Wayne L. Rev. 51, 58 (1987); Deborah P. Kelly, Victims,
34 Wayne L. Rev. 69, 72 (1987); Douglas Evan Beloof, A Third Model of
Criminal Process: The Victim Participation Model, 1999 Utah L. Rev.--
(forthcoming).
\90\ See generally Douglas Evan Beloof, Constitutional Civil Rights
of Crime Victim Participation: The Emergence of Secondary Harm as a
Rational Principle, in Beloof, supra note 124, at [10-18] (explaining
concept of secondary harm); Spungeon, supra note 11, at 10 (explaining
concept of secondary victimization).
\91\ Task Force on the Victims of Crime and Violence, Final Report
of the APA Task Force on the Victims of Crime and Violence, 40 Am.
Psych. 107 (1985).
\92\ Kilpatrick and Otto, Constitutionally Guaranteed Participation
in Criminal Proceedings for Victims: Potential Effects on Psychological
Functioning, 34 Wayne L. Rev. 7, 21 (1987) (collecting evidence on this
point); Erez, Who's Afraid of the Victim?, supra note 69, at [9]
(``[t]he cumulative knowledge acquired from research in various
jurisdictions * * * suggests that victims often benefit from
participation and input''); Ken Eikenberry, The Elevation of Victims'
Rights in Washington State: Constitutional Status, 17 Pepperdine L.
Rev. 19, 41 (1989); see also Jason N. Swensen, Survivor Says Measure
Would Dignify Victims, Deseret News (Salt Lake City), Oct. 21, 1994, at
B4 (noting anguish widow suffered when denied chance to speak at
sentencing of husband's murderer).
\93\ Erez, Who's Afraid of the Victim?, supra note 69, at [10].
\94\ Id. see also S. Rep. 105-409 at 17.
\95\ Erez, Who's Afraid of the Victim?, supra note 69, at [10]
(``the majority of victims of personal felonies wished to participate
and provide input, even when they thought their input was ignored or
did not affect the outcome of their case. Victims have multiple motives
for providing input, and having a voice serves several functions for
them'').
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The possibility of the sentencing process aggravating the grievous
injuries suffered by victims and their families is generally ignored by
the Amendment's opponents. But this possibility should give us great
pause before we structure our criminal justice system to add the
government's insult to criminally-inflicted injury. For this reason
alone, victims and their families, no less than defendants, should be
given the opportunity to be heard at sentencing.
2. The right to be present at trial
The victim's right to be present at trial creates the most
frequently alleged conflict between the Amendment and the defendant's
rights.\96\ The most detailed and careful explication of this view is
Professor Mosteller's, advanced in various articles\97\ and recently
relied upon by the dissenting senators of this Committee.\98\ In brief,
Mosteller believes that fairness to defendants requires that victims be
excluded from the courtroom, at least in some circumstances, to avoid
the possibility that they might tailor their testimony to that given by
other witnesses. While I admire the clarity and doggedness with which
Mosteller has set forth his position, I respectfully disagree with his
conclusions for reasons to be articulated at length elsewhere.\99\ Here
it is only necessary to note that even this strong opponent of the
Amendment finds himself agreeing with the value underlying the victim's
right. He writes: ``Many victims have a special interest in witnessing
public proceedings involving criminal cases that directly touched their
lives.'' \100\ This view is widely shared. For instance, the Supreme
Court has explained that ``[t]he victim of the crime, the family of the
victim, [and] others who have suffered similarly * * * have an interest
in observing the course of a prosecution.'' \101\ Victim concern about
the prosecution stems from the fact that society has withdrawn ``both
from the victim and the vigilante the enforcement of criminal laws, but
[it] cannot erase from people's consciousness the fundamental, natural
yearning to see justice done--or even the urge for retribution.'' \102\
---------------------------------------------------------------------------
\96\ Technically the right is ``not to be excluded.'' See infra
notes 130-33 and accompanying text (explaining reason for this
formulation).
\97\ See Mosteller, Unnecessary Amendment, supra note 18; see also
Mosteller, Recasting the Battle, supra note 18, at 1698-1704.
\98\ S. Rep. 105-409 at 66 & n.44.
\99\ See Paul G. Cassell, The Victim's Right to Attend the Trial:
The Emerging National Consensus (working paper--to be submitted for
publication shortly); see also 1996 Sen. Judiciary Comm. Hearings,
supra note 16, at 73-81 (explaining why victim's right to attend does
not conflict with defendant's rights).
\100\ Mosteller, Recasting the Battle, supra note 18, at 1699.
\101\ Gannett Co. v. DePasquale, 443 U.S. at 428 (Blackmun, J.,
concurring in part and dissenting in part).
\102\ Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571
(1980) (plurality opinion); see also William Pizzi, Rethinking Our
System, 1999 Utah L. Rev.--(forthcoming) (noting importance of victim
right to attend trials).
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Professor Mosteller also seems to concede that defendants currently
have no constitutional right to exclude victims from trials,\103\
meaning that his argument rests purely on policy. Mosteller's policy
claim is not the general one that most victims ought to be excluded,
but rather the much narrower one that ``victims' rights to attend * * *
proceedings should be guaranteed unless their presence threatens
accuracy and fairness in adjudicating the guilt or innocence of the
defendant.'' \104\ On close examination, it turns out that, in
Mosteller's view, victims' attendance threatens the accuracy of
proceedings not in a typical criminal case, but only in the atypical
case of a crime with multiple victims who are all eyewitness to the
same event and who thus might tailor their testimony if allowed to
observe the trial together.\105\ This is a rare circumstance indeed,
and it is hard to see the alleged disadvantage in this unusual
circumstance outweighing the more pervasive advantages to victims in
the run-of-the-mine cases.\106\ Moreover, even in rare circumstances of
multiple victims, other means exist for dealing with the tailoring
issue. For example, the victims typically have given pretrial
statements to police, grand juries, prosecutors, or defense
investigators that would eliminate their ability to change their
stories effectively.\107\ In addition, the defense attorney may argue
to the jury that victims' have tailored their testimony even when they
have not \108\--a fact that leads some critics of the Amendment to
conclude this provision will, if anything, help defendants rather than
harm them. The dissenting senators, for example, make this harms-the-
prosecutor argument,\109\ although at another point they appear to
present a contrary harms-the-defendant claim.\110\ In short, the
critics have not articulated a strong case against the victim's right
to be present.
---------------------------------------------------------------------------
\103\ See Mosteller, Recasting the Battle, supra note 18, at 1701
n.29.
\104\ Mosteller, Recasting the Battle, supra note 18, at 1699; see
also Mosteller, Unnecessary Amendment, supra note 18.
\105\ Mosteller, Recasting the Battle, supra note 18, at 1700; see
also Mosteller, Unnecessary Amendment, supra note 18.
\106\ See Eraz, supra note 201, at 29 (criticizing tendency of
lawyers ``to use an atypical or extreme case to make their point'' and
calling for public policy in the victims area to be based on more
typical cases). Cf. Robert P. Mosteller, Popular Justice, 109 Harv. L.
Rev. 487, 487 (1995) (critiquing George P. Fletcher's book With Justice
for Some: Victims' Rights in Criminal Trials (1995) for ``ignor[ing]
how the criminal justice system operates in ordinary'' cases).
\107\ See Cassell, supra note 99.
\108\ See S. Rep. 105-409 at 82 (additional views of Sen. Biden).
\109\ S. Rep. 105-409 at 61 (minority views of Sens. Leahy,
Kennedy, and Kohl) (``there is also the danger that the victim's
presence in the courtroom during the presentation of other evidence
will cast doubt on her credibility as a witness. * * * Whole cases * *
* may be lost in this way'').
\110\ Id. at 65 (minority views of Sens. Leahy, Kennedy, and Kohl)
(``Accuracy and fairness concerns may arise * * * where the victim is a
fact witness whose testimony may be influenced by the testimony of
others'').
---------------------------------------------------------------------------
3. The right to consideration of the victims' interest in a trial free
from unreasonable delay
Opponents of the Amendment sometimes argue that giving victims a
right ``to consideration'' of their interest ``that any trial be free
from unreasonable delay''\111\ would impinge on a defendant's right to
prepare an adequate defense. For example, the dissenting Senators in
the Judiciary Committee argued that ``the defendant's need for more
time could be outweighed by the victim's assertion of his right to have
the matter expedited, seriously compromising the defendant's right to
effective assistance of counsel and his ability to receive a fair
trial.'' \112\ Similarly Professor Mosteller advances the claim that
this right ``also affects substantial interests of the defendant and
may alter the outcomes of cases.''\113\
---------------------------------------------------------------------------
\111\ S.J. Res. 44, Sec. 1.
\112\ S. Rep. 105-409, at 66 (minority view of Sens. Leahy, Kennedy
and Kohl).
\113\ Mosteller, Unnecessary Amendment, supra note 18; Mosteller,
Recasting the Battle, supra note 18, at 1706-07.
---------------------------------------------------------------------------
These arguments fail to adequately consider the precise scope of
the victim's right in question. The right the Amendment confers is one
to ``consideration of the interest of the victim that any trial be free
from unreasonable delay.'' The opponents never discuss the fact that,
by definition, all of the examples that they give of defendants
legitimately needing more time to prepare would constitute reasons for
``reasonable'' delay. Indeed, it is interesting to note similar
language in the American Bar Association's directions to defense
attorneys to avoid ``unnecessary delay'' that might harm victims.\114\
The victim's right, moreover, is to ``consideration'' of victims'
interests. The proponents of the Amendment could not have been clearer
about the intent to allow legitimate defense continuances. As this
Committee explained:
---------------------------------------------------------------------------
\114\ American Bar Association, Suggested Guidelines for Reducing
Adverse Effects of Case Continuances and Delays on Crime Victims and
Witnesses 4 (Dec. 1985).
The Committee intends for this right to allow victims to have
the trial of the accused completed as quickly as is reasonable
under all of the circumstances of the case, giving both the
prosecution and the defense a reasonable period of time to
prepare. The right would not require or permit a judge to
proceed to trial if a criminal defendant is not adequately
represented by counsel.\115\
---------------------------------------------------------------------------
\115\ S. Rep. 105-409 at 3; see also The Victims Right Amendment:
Hearings Before the Senate Comm. on the Judiciary, 105th Cong., 2nd
Sess. (Apr. 28, 1998) (statement of Paul G. Cassell at 17-18).
Such a right, while not treading on any legitimate interest of a
defendant, will safeguard vital interests of victims. Victims'
advocates have offered repeated examples of abusive delays by
defendants designed solely for tactical advantage rather than actual
preparation of the defense of a case.\116\ Abusive delays appear to be
particularly common when the victims of the crime is a child, for whom
each day without the case resolved can seem like an eternity.\117\ Such
cases present a strong justification for this provision in the
Amendment. Nonetheless, in his most recent article Professor Mosteller
advances the proposition that this right ``should be debated on [its]
merits and not as part of a campaign largely devoted to giving victims'
rights to notice and to participate in criminal proceedings.'' \118\
This seems a curious argument, as the victims community has tried to
debate this right ``on its merits'' for years. As long ago as 1982, the
President's Task Force on Victims of Crime offered suggestions for
protecting a victim's interest in a prompt disposition of the
case.\119\ In the years since then, it has been hard to find critics of
victims' rights willing to contend on the merits of the need for
protecting victims against abusive delay.\120\ If anything, the time
has arrived for the opponents of the victim's right to proceedings free
from unreasonable delay to address the serious problem of unwarranted
delay in criminal proceedings to concede that, here too, a strong case
for the Amendment exists.
---------------------------------------------------------------------------
\116\ See, e.g., 1997 Sen. Judiciary Comm. Hearing, supra note 14,
at 115-16; see also Paul G. Cassell & Evan S. Strassberg, Evidence of
Repeated Acts of Rape and Child Molestation: Reforming Utah Law to
Permit the Propensity Inference, 1998 Utah L. Rev. 145, 146.
\117\ See Cassell, supra note 36, at 1402-05.
\118\ Mosteller, Unnecessary Amendment, supra note 18.
\119\ See President's Task Force on Victims of Crime, Final Report
76 (1982).
\120\ Cf. Henderson, supra note 10 (conceding that
``reasonableness'' language might ``allow judges to ferret out
instances of dilatory tactics while recognizing the genuine need for
time,'' but concluding that a constitutional amendment is not needed to
confer this power on judges).
---------------------------------------------------------------------------
b. prosecution-oriented challenges to the amendment
Some objections to victims rights rest not on alleged harm to
defendants' interests but rather those of the prosecution. Often these
objections surprisingly come from persons not typically solicitous of
prosecution concerns,\121\ suggesting some skepticism may be warranted.
In any event, the arguments lack foundation.
---------------------------------------------------------------------------
\121\ See, e.g., Scott Wallace, Mangling the Constitution: The
Folly of the Victims' Rights Amendment, Wash. Post, June 28, 1996, at
A21 (op-ed piece from special counsel with the National Legal Aid and
Defender Association warning that Amendment would harm police and
prosecutors).
---------------------------------------------------------------------------
It is sometimes argued that only the state should direct criminal
prosecutions. This claim might have some bite against a proposal to
allow victims to initiate or otherwise control the course of criminal
prosecutions,\122\ but it has little force against the proposed
amendment. The Victims' Rights Amendment assumes a prosecution-directed
system and simply grafts victims' rights onto it. Victims receive
notification of decisions that the prosecution makes and, indeed, have
the right to provide information to the court at appropriate junctures,
such as bail hearings, plea bargaining, and sentencing. However, the
prosecutor still files the complaint and moves it through the system,
making decisions not only about which charges (if any) to file, but
also about which investigative leads to pursue and which witnesses to
call at trial. While the victim can follow her ``own case down the
assembly line'' in Professor Beloof's colorful metaphor,\123\ the fact
remains that the prosecutor runs the assembly line. This general
approach of grafting victims' rights onto the existing system mirrors
the approach followed by all of the various state victims' amendments,
and few have been heard to argue that these systems interfere with
legitimate prosecution interests.
---------------------------------------------------------------------------
\122\ See, e.g., Peter L. Davis, The Crime Victim's ``Right'' to a
Criminal Prosecution: A Proposed Model Statute for the Governance of
Private Criminal Prosecutions, 38 DePaul L. Rev. 329 (1989). Allowing
victims to initiate their own prosecutions is no novelty, as it is
consistent with the English common law tradition of private
prosecutions, brought to the American colonies. See 1 James F. Stephen,
A History of the Criminal Law of England 493-503 (1883); Shirley S.
Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah
L. Rev. 517, 521-22 (1985); Josephine Gittler, Expanding the Role of
the Victim in a Criminal Action: An Overview of Issues and Problems, 11
Pepp. L. Rev. 117, 125-26 (1984); Juan Cardenas. The Crime Victim in
the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol'y 358, 384 (1986);
William F. McDonald, Towards a Bicentennial Revolution in Criminal
Justice: The Return of the Victim, 13 Amer. Crim. L. Rev. 649 (1976).
\123\ Beloof, supra note 89.
---------------------------------------------------------------------------
Perhaps an interferes-with-the-prosecutor objection might be
refined to apply only against a victim's right to be heard on plea
bargains, since this right arguably interferes with a prosecutor's
ability to terminate the prosecution. But today, it is already the law
of many jurisdictions that the court must determine whether to accept
or reject a proposed plea bargain after weighing all relevant
interests.\124\ Given that victims undeniably have relevant, if not
compelling, interests in proposed pleas, the Amendment neither breaks
new theoretical ground nor displaces any legitimate prosecution
interest. Instead, victim statements simply provide more information
for the court to consider in making its decision. The available
empirical evidence also suggests that victim participation in the plea
bargaining process does not burden the courts and produces greater
victim satisfaction even where (as is often the case) victims
ultimately do not influence the outcome.\125\
---------------------------------------------------------------------------
\124\ For cogent explication of the law, see Douglas Beloof,
Victims in Criminal Procedure (1999); see also National Conference of
the Judiciary on The Rights of Victims of Crime, Statement of
Recommended Judicial Practices 10 (1983) (recommending victim
participation in plea negotiations).
\125\ See, e.g., D. Buchner et. al., Inslaw, Evaluation of the
Structured Plea Negotiation Project: Executive Summary (1984).
---------------------------------------------------------------------------
In addition, critics of victim involvement in the plea process
almost invariably overlook the long-standing acceptance of judicial
review of plea bargains. These critics portray pleas as a matter solely
for a prosecutor and a defense attorney to work out. They then display
a handful of cases in which the defendant was ultimately acquitted at
trial after courts had the temerity to reject a plea after hearing from
victims. These cases, the critics maintain, prove that any outside
review of pleas is undesirable.\126\ The possibility of an erroneous
rejection of a plea is, of course, inherent in any system allowing
review of a plea. In an imperfect world judges will sometimes err in
rejecting a plea that, in hindsight, should have been accepted. The
salient question, however, is whether as a whole the judicial review
does more good than harm--that is, whether, on balance, courts make
more right decisions than wrong ones. Just as cases can be cited where
judges apparently made mistakes in rejecting a plea, so too they have
rejected plea bargains that were unwarranted.\127\ The reported cases
of victims' persuading judges to reject unjust pleas form just a small
part of the picture, because in many other cases, the mere prospect of
victim objection undoubtedly has restrained prosecutors from bargaining
cases away without good reason. My strong sense is that judicial review
of pleas by courts after hearing from victims more often improves
rather than retards justice. The failure of the critics to-contend on
the issue of net effect and the growing number of jurisdictions that
allow victim input \128\ is strong evidence for this conclusion.
---------------------------------------------------------------------------
\126\ See, e.g., S. Rep. 105-409, at 66 (minority view of Sens.
Leahy, Kennedy and Kohl).
\127\ See, e.g., People v. Stringham, 206 Cal. App. 3d 184 (Cal.
App. 1988); People v. Austin, 566 N.W.2d 547 (Mich. 1997).
\128\ See Beloof, supra note 124, at 462.
---------------------------------------------------------------------------
Another prosecution-based objection to victims' rights is that,
while they are desirable in theory, in practice they would be unduly
expensive.\129\ Here again, prominent critics misread the language of
the Amendment. For example, the dissenting Senators have advanced the
position that the victim's right ``not to be excluded from'' the trial
equates with a victim's right to be transported to the trial. They then
conclude that ``[t]he right not to be excluded could create a duty for
the Government to provide travel and accommodation costs for victims
who could not otherwise afford to attend.'' \130\ This objection
appears to be contrary to both the plain language of the Amendment and
the explicit statements of its supporters and sponsors. The underlying
right is not for victims to be transported to the courthouse, but
simply to enter the courthouse once there. As the Senate Judiciary
Committee report explains, ``The right conferred is a negative one--a
right `not to be excluded'--to avoid the, suggestion that an
alternative formulation--a right ``to attend''--might carry with it
some governmental obligation to provide funding * * * for a victim to
attend proceedings.'' \131\ The objection also runs counter to current
interpretations of comparable language in other enactments. Federal law
and many state constitutional amendments already extend to victims the
arguably more expansive right ``to be present'' at or ``to attend''
court proceedings.\132\ Yet no court has interpreted any one of these
provisions as guaranteeing a victim a right of transportation and
lodging at public expense. The federal amendment is even less likely to
be construed to confer such an unprecedented entitlement because of its
negative formulation.\133\
---------------------------------------------------------------------------
\129\ Sometimes the argument is cast not in terms of the Amendment
diminishing prosecutorial resources, but rather victim resources. For
example, Professor Henderson urges rejection of the Amendment on
grounds that ``we need to concentrate on things that aid recovery'' by
spending more on victim-assistance and similar programs. See Henderson,
supra note 51, at [72-73]; see also Henderson, supra note 221, at 606.
But there is no compatibility between passing the Amendment and
expanding such programs. Indeed, if the experience at the state level
is any guide, passage of the federal Amendment will (if anything) lead
to an increase in resources devoted to victim-assistance efforts
because of their usefulness in implementing the rights contained in the
Amendment.
\130\ S. Rep. 105-409 at 63 (minority views of Sens. Leahy, Kennedy
and Kohl).
\131\ See, e.g., S. Rep. 105-409 at 26.
\132\ For right to ``be present'' formulations, see, e.g., 42
U.S.C. Sec. 10606(b)(4); Alaska Const. art. I, Sec. 24; Ariz. Const.,
art. 2, Sec. 2.1(A)(3) & (4)1 Idaho Const., art. I, Sec. 22(4) & (6);
Ill. Const., art. I, Sec. 8.1; Ind. Const. Art. I, Sec. 13(b); Miss.
Rev. St. 99-36-5; Mo. Const. art. I, Sec. 32(1); Mont. Const., art. 3,
Sec. 26A(1); Nev. Const., art. I, Sec. 8(2); N.M. Const., art. 2,
Sec. 24; N.C. Const., art. I, Sec. 37(a); Okla. Const., art. II,
Sec. 34A; S.C. Const. Art. I, Sec. 24(A)(3); Utah Const. art. I,
Sec. 29(1)(b); see also Ark. Stat. Ann. Sec. 16-41-101 (1994) (rule
616). For a right ``to attend'' formulation, see Mich. Const., art. I,
Sec. 24(1).
\133\ An Alabama statute also uses this phrasing without reported
deleterious consequences. See Ala. Code Sec. 15-14-54 (recognizing
victim's right ``not [to] be excluded from court or counsel table
during the trial or hearing or any portion thereof. * * *
---------------------------------------------------------------------------
Once victims arrive at the courthouse, their attendance at
proceedings imposes no significant incremental costs. In exercising
their right to attend, victims simply can sit in the benches that have
already been built. Even in cases involving hundreds of victims,
innovative approaches such as closed-circuit broadcasting have proven
feasible.\134\ As for the victims' right to be heard, the state
experience reveals only a modest cost impact.\135\
---------------------------------------------------------------------------
\134\ See 42 U.S.C. 10608(a) (authorizing close circuit broadcast
of trials whose venue has been moved more than 500 miles). This
provision was used to broadcast proceedings in the Oklahoma City
bombing trial in Denver back to Oklahoma City.
\135\ See, e.g., NIJ Study, supra note 67, at 59 (right to allocute
in California ``has not resulted in any noteworthy change in the
workload of either the courts, probation departments, district
attorneys' offices or victim/witness programs''); id. at 69 (no
noteworthy change in the workload of California parole board); Erez,
Victim Participation, supra note 69, at 22 (``Research in jurisdictions
that allow victim participation indicates that including victims in the
criminal justice process does not cause delays or additional
expense''); see also Davis et al., supra note 68, at 69 (expanded
victim impact program did not delay dispositions in New York).
---------------------------------------------------------------------------
Most of the cost arguments have focused on the Amendment
notification provisions. It is already recognized as sound
prosecutorial practice to provide notice to victims. The National
Prosecution Standards prepared by the National District Attorney
Association recommends that victims of violent crimes and other serious
felonies should be informed, where feasible, of important steps in the
criminal justice process.\136\ In addition, many states have required
that victims receive notice of a broad range of criminal justice
proceedings. Nearly every state provides notice of the trial,
sentencing, and parole hearings.\137\ In spite of the fact that notice
is already required in many circumstances across the country, the
dissenting Senators on the Judiciary Committee argued that the
``potential costs of [the Amendment's] constitutionally-mandated notice
requires alone are staggering. * * *'' \138\ This suggestion is
inconsistent with the relevant evidence. The experience with victim
notice requirements already used at the state level suggests that the
costs are relatively modest, particularly since computerized mailing
lists and telephone calls can be used. The Arizona amendment serves as
a good illustration. That amendment extends notice rights far beyond
what is called for in the federal amendment,\139\ yet prosecutors have
not found the expense burdensome in practice.\140\ As a result of the
existing state notification requirements, any incremental expense in
Arizona from the federal amendment should be quite modest.
---------------------------------------------------------------------------
\136\ National District Attorneys Association, National Prosecution
Standards Sec. 26.1 at 92 (2d ed. 1991).
\137\ See National Victim Center, 1996 Victims' Rights Sourcebook:
A Compilation and Comparison of Victims' Rights Legislation 24
(collecting statutes).
\138\ S. Rep. 105-409 at 62 (minority views of Sens. Leahy,
Kennedy, and Kohl).
\139\ The Arizona Amendment extends notification rights to all
crime victims, not just victims of violent crime as provided in the
federal amendment. Compare Ariz. Const. Sec. 2.1(A)(3); Sec. 2.1(C)
with S.J. Res. 3 (1999).
\140\ See Richard M. Romley, Constitutional Rights for Victims:
Another Perspective, The Prosecutor, May 1997, at 7 (noting modest cost
of the state amendment in Phoenix); Statement of Barbara LaWall, Pima
County Prosecutor, in A Proposed Constitutional Amendment to Protect
Victims of Crime: Hearings Before the Sen. Judiciary Comm., 105th
Cong., 1st Sess. 97 (1997) (noting cost has not been a problem in
Tucson).
---------------------------------------------------------------------------
The only careful and objective assessment of the costs of the
Amendment also reaches the conclusion that the costs are slight. The
Congressional Budget Office reviewed the financial impact of not just
the notification provisions of the Amendment, but of all its provisions
on the federal criminal justice system. The CBO concluded that, were
the Amendment to be approved, it ``could impose additional costs on the
Federal courts and the Federal prison system. * * * However, CBO does
not expect any resulting costs to be significant.'' \141\
---------------------------------------------------------------------------
\141\ Congressional Budget Office Report on S.J. Res. 44, reprinted
in S. Rep. 105-409 at 40.
---------------------------------------------------------------------------
This CBO report is a good one on which to wrap up the discussion of
normative objections to the Amendment. Here is an opportunity to see
how the critics' claims fare when put to a fair-minded and neutral
assessment. In fact, the critics' often-repeated allegations of
``staggering'' costs were found to be exaggerated.
II. Justification Challenges
a. the ``unnecessary'' constitutional amendment
Because the normative arguments for victims' rights are so
powerful, some critics of the Victims' Rights Amendment take a
different tack and mount what might be described as a justification
challenge. This approach concedes that victims' rights may be
desirable, but maintains that victims already possess such rights or
can obtain such rights with relatively minor modifications in the
current regime. The best single illustration of this attack is found in
Professor Mosteller's soon-to-be-published article, entitled ``The
Victims' Rights Amendment: The Unnecessary Amendment.'' \142\ There,
Mosteller contends that a constitutional amendment is not needed
because the obstacles that victims face--described by Mosteller as
``official indifference'' and ``excessive judicial deference''--can all
be overcome without a constitutional amendment.\143\
---------------------------------------------------------------------------
\142\ Mosteller, The Victims' Rights Amendment: The Unnecessary
Amendment, 1999 Utah L. Rev.--(forthcoming).
\143\ Id.; see also Mosteller, Recasting the Battle, supra note 18
(developing similar argument).
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Professor Mosteller's clearly developed position is ultimately
unpersuasive because it supplies a purely theoretical answer to a
practical problem. In theory, victims' rights could be safeguarded
without a constitutional amendment. It would only be necessary for
actors within the criminal justice system--judges, prosecutors, defense
attorneys, and others--to suddenly begin fully respecting victims'
interests. The real world question, however, is how to actually trigger
such a shift in the Zeitgeist. For nearly two decades, victims have
obtained a variety of measures to protect their rights. Yet, the
prevailing view from those who work in the field is that these efforts
``have all too often been ineffective.'' \144\ Rules to assist victims
``frequently fail to provide meaningful protection whenever they come
into conflict with bureaucratic habit, traditional indifference, or
sheer inertia. * * *'' \145\ The view that state victims provisions
have been and will continue to be often disregarded is widely shared,
as some of the strongest opponents of the Amendment seem to concede the
point. For example, Ellen Greenlee, President of the National Legal Aid
and Defender Association bluntly and revealingly told Congress that the
state victims' amendments ``so far have been treated as mere statements
of principle that victims ought to be included and consulted more by
prosecutors and courts. A state constitution is far * * * easier to
ignore than the federal one.'' \146\
---------------------------------------------------------------------------
\144\ Tribe & Cassell, supra note 25, at B5. See, e.g., 1996 Sen.
Judiciary Comm. Hearings, supra note 16, at 109 (statement of Steven
Twist); id. at 30 (statement of John Walsh); id. at 26 (statement of
Katherine Prescott).
\145\ See Tribe & Cassell, supra note 25, at B5.
\146\ 1996 House Judiciary Comm. Hearings, supra note 15, at 147.
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Professor Mosteller attempts to minimize the current problems,
conceding only that ``existing victims' rights are not uniformly
enforced.'' \147\ This is a grudging concession to the reality that
victims rights are often denied today, as numerous examples of
violations of rights in the congressional record and elsewhere
attest.\148\ A comprehensive view comes from a careful study of the
issue by the Department of Justice. As reported by the Attorney
General, the Department found that
---------------------------------------------------------------------------
\147\ Mosteller, Unnecessary Amendment, supra note 18.
\148\ See, e.g., 1998 Sen. Judiciary Committee Hearings [not yet in
print] (statement of Marlene Young).
efforts to secure victims' rights through means other than a
constitutional amendment have proved less than fully adequate.
Victims' rights advocates have sought reforms at the state
level for the past twenty years, and many states have responded
with state statutes and constitutional provisions that seek to
guarantee victims' rights. However, these efforts have failed
to fully safeguard victims' rights. These significant state
efforts simply are not sufficiently consistent, comprehensive,
or authoritative to safeguard victims' rights.\149\
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\149\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 64
(statement of Attorney General Reno).
Similarly, a exhaustive report from those active in the field
concluded that ``[a] victims' rights constitutional amendment is the
only legal measure strong enough to rectify the current inconsistencies
in victims' rights laws that vary significantly from jurisdiction to
jurisdiction on the state and federal level.''\150\
---------------------------------------------------------------------------
\150\ New Directions from the Field, supra note 5, at 10.
---------------------------------------------------------------------------
Hard statistical evidence on non-compliance with victims' rights
confirms these general conclusions about inadequate protection. As
mentioned at the outset of this testimony, a 1998 report from the
National Institute of Justice NIJ) found that many crime victims are
denied their rights and concluded that ``enactment of State laws and
State constitutional amendments alone appears to be insufficient to
guarantee the full provision of victims' rights in practice.'' \151\
The report provided numerous situations in which victims were not
provided rights to which they were entitled. For example, even in
several states identified as giving ``strong protection'' to victims
rights, fewer than 60 percent of the victims were notified of the
sentencing hearing and fewer than 40 percent were notified of the
pretrial release of the defendant.\152\ A follow-up analysis of the
same data found that racial minorities are less likely to be afforded
their rights under the patchwork of existing statutes.\153\ Professor
Mosteller dismisses these figures with the essentially ad hominem
attack that they were collected by the National Victim Center, which
supports a victims' rights amendment.\154\ However, the data themselves
were collected by an independent polling firm.\155\ Mosteller also
cites one internal Justice Department reviewer who stated during the
review process in conclusory terms that the report was unsatisfactory
and should not be published.\156\ The conclusion of the NIJ review
process, however, after hearing from all reviewers (including
apparently favorable peer reviews) was to publish the study.\157\
Finally, Mosteller criticizes the data as resting on unverified self-
reported data from crime victims. But since the research question was
how many victims had been afforded their rights, asking victims (rather
than the agencies suspected of failing to provide rights) would appear
to be a standard methodological approach. The study also obtained a
very high 83 percent response rate from the victims interviewed,\158\
suggesting that the findings are not due to any kind of responder bias.
And given the magnitude of the alleged failures to provide victims'
rights--ranging up to 60 percent and more--the general dismissal
picture presented by the NIJ report is clear. Opponents of the
Amendment offer no competing statistics, and such other data as exist
tend to corroborate the NIJ findings of substantial noncompliance.\159\
---------------------------------------------------------------------------
\151\ Nat'l Inst. of Justice, supra note 7, 151, at 1.
\152\ Id. at 4 exh. 1.
\153\ National Victim Center, Statutory and Constitutional
Protection of Victims' Rights: Implementation and Impact on Crime
Victims: Sub-Report on Comparison of White and Non-White Crime Victim
Responses Regarding Victims' Rights 5 (1997).
\154\ See Mosteller, Unnecessary Amendment, supra note 18.
\155\ Nat'l Inst. of Justice, supra note 7, 151, at 11.
\156\ See Mosteller, Unnecessary Amendment, supra note 18 (citing
McQuade to Travis memorandum).
\157\ See Nat'l Inst. of Justice, Guide to Writing Reports for NIJ:
Policy, Requirements, and Procedures at 3 (noting peer review process).
\158\ Nat'l Inst. of Justice, supra note 7, 151, at 3.
\159\ See, e.g., Hildenbrand & Smith, supra note 69, at 112
(prosecutors and victims consistently report that victims ``not
usually'' given notice or consulted in a significant proportion of
cases); Erez, Victim Participation, supra note 69, at 26 (finding
victims rarely informed of right to make statements and victim impact
statements not always prepared).
---------------------------------------------------------------------------
Given such statistics, it is interesting to consider what the
defenders of the status quo believe is an acceptable level of violation
of rights. Suppose new statistics could be gathered that show that
victims rights are respected in 75 percent of all cases, or 90 percent,
or even 98 percent. America is so far from a 98 percent rate for
affording victims rights that my friends on the front lines of
providing victim services probably will dismiss this exercise as a
meaningless law school hypothetical. But would a 98 percent compliance
rate demonstrate that the amendment is ``unnecessary''? Even a 98
percent enforcement rate would leave numerous victims unprotected. As
the Supreme Court has observed in response to the claim that the Fourth
Amendment exclusionary rule affects ``only'' about 2 percent of all
cases in this country, ``small percentages * * * mask a large absolute
number of'' cases.\160\ A rough calculation suggests that even if the
Victims Rights Amendment improved treatment for only 2 percent of the
violent crime cases it affects, a total of about 30,000 victims would
benefit each year.\161\ Even more importantly, we would not tolerate a
mere 98 percent ``success'' rate in enforcing other important rights.
Suppose that, in opposition to the Bill of Rights, it had been argued
that 98 percent of all Americans could worship in the religious
tradition of their choice, 98 percent of all newspapers could publish
without censorship from the government, 98 percent of criminal
defendants had access to counsel, and 98 percent of all prisoners were
free from cruel and unusual punishment. Surely the effort still would
have been mounted to move the totals closer to 100 percent. Given the
wide acceptance of victims rights, they deserve the same respect.
---------------------------------------------------------------------------
\160\ United States v. Leon, 468 U.S. 897, 907 n.6 (1984); see also
Craig M. Bradley, The Failure of the Criminal Procedure Revolution 43-
44 (1993).
\161\ FBI estimates suggest an approximate total of about 2,303,600
arrests for violent crimes each year, broken down as follows: 729,000
violent crimes within the crime index (murder, forcible rape, robbery,
aggravated assault), 1,329,000 other assaults, 95,800 sex offenses, and
149,800 offenses against family and children. U.S. Dep't of Justice,
Fed. Bureau of Investigation, Uniform Crime Reports: Crime in the
United States --1996 at 214 tbl. 29 (1997). A rough estimate is that
about two-thirds of these cases (66 percent) will be accepted for
prosecution, either within the adult or juvenile system. See Brain
Forst, Prosecution and Sentencing, in Crime 363, 36 (James Q. Wilson &
Joan Petersilia eds. 1995). Assuming the Amendment would benefits 2
percent of the victims within these charged cases produces the figure
in text. For further discussion of issues surrounding such
extrapolations, see Paul G. Cassell, Miranda's Social Costs: An
Empirical Reassessment, 90 Nw. U.L. Rev. 387, 438-40; Paul G. Cassell,
Protecting the Innocent from False Confessions and Lost Confessions--
And From Miranda, 88 J. Crim. L. & Crimnology 497, 514-16 (1998).
---------------------------------------------------------------------------
Professor Mosteller does not spend much time reviewing the level of
compliance in the current system, instead moving quickly to the claim
that the constitutional amendment will ``not automatically
eliminate[]'' the problem of official indifference to victims'
rights.\162\ But the key issue is not whether the Amendment will
``eliminate'' indifference, but rather whether it will reduce
indifference--thereby improving the lot of victims. Here the posture of
the Amendment's critics is quite inconsistent. On the one hand, they
posit dramatic damaging consequences that will reverberate throughout
the system after the Amendment's adoption, even though those
consequences are entirely unintended. Yet at the same time, they are
unwilling to concede that the Amendment will make even modest positive
consequences in the areas that it specifically addresses.
---------------------------------------------------------------------------
\162\ Mosteller, Unnecessary Amendment, supra note 18, at [7].
---------------------------------------------------------------------------
The best view of the Amendment's effects is a moderate one that
avoid the varying extremes of the critics. Of course the Amendment will
not eliminate all violations of victims' rights, particularly because
practical politics have stripped from the Amendment its civil damages
provision.\163\ But neither will the Amendment amount to an ineffectual
response to official indifference. On this point, it is useful to
consider the steps involved in adopting the Amendment. Both the House
and Senate of the United States Congress would pass the measure by two-
thirds votes. Then a full three-quarters of the states would ratify the
provision.\164\ No doubt these events would generate dramatic public
awareness of the nature of the rights and the importance of providing
them. In short, the adoption of the Amendment would constitute a major
national event. One might even describe it as a ``constitutional
moment'' (of the old fashioned variety) where the nation recognizes the
crucial importance of protecting certain rights for its citizens.\165\
Were such events to occur, the lot of crime victims likely would
improve considerably. The available social science research suggests
that the primary barrier to successful implementation of victims'
rights is ``the socialization of [lawyers] in a legal culture and
structure that do not recognize the victim as a legitimate party in
criminal proceedings.'' \166\ Professor Mosteller seems to agree
generally with this view, explaining that ``officials fail to honor
victims' rights largely as a result of inertia and past learning,
insensitivity to the unfamiliar needs of victims, lack of training, and
inadequate or misdirected institutional incentives.'' \167\ A
constitutional amendment, reflecting the instructions of the nation to
its criminal justice system, is perfectly designed to attack these
problems and develop a new legal culture supportive of victims. To be
sure, one can paint the prospect of such a change in culture as
``entirely speculative.'' \168\ Yet this means nothing more than that,
until the Amendment passes, we will not have an opportunity to
precisely assay its positive effects. Constitutional amendments have
changed our legal culture in other areas, and clearly the logical
prediction is that a victims' amendment would go a long way towards
curing official indifference. This hypothesis is also consistent with
the findings of the NIJ study on state implementation of victims'
rights. The study concluded that ``[w]here legal protection is strong,
victims are more likely to be aware of their rights, to participate in
the criminal justice system, to view criminal justice system officials
favorably, and to express more overall satisfaction with the system.''
\169\ It is hard to imagine any stronger protection for victims' rights
than a federal constitutional amendment. Moreover, we can confidently
expect that those who will most often benefit from the enhanced
consistency in protecting victims' rights will be members of racial
minorities, the poor, and other disempowered groups. Such victims are
the first to suffer under the current, ``lottery'' implementation of
victims' rights.\170\
---------------------------------------------------------------------------
\163\ See S.J. Res. 3, Sec. 2 (1999). See generally Cassell, supra
note 36, at 1418-21 (discussing damage actions under victims' rights
amendments).
\164\ See U.S. Const., art. V.
\165\ Cf. 1 Bruce Ackerman, We The People passim (1990) (discussing
``constitutional moments'').
\166\ Erez, Victim Participation, supra note 69, at 29; see also
William Pizzi, Trials Without Truth (1999) (discussing problems with
American trial culture); Pizzi, supra note 102, at [11] (noting trial
culture emphasis on winning and losing that may overlook victims);
William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A
Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37,
41 (1996) (``So poor is the level of communication that those within
the system often seem genuinely bewildered by the victims' rights
movement, even to the point of suggesting rather condescendingly that
victims are seeking a solace from the criminal justice system that they
ought to be seeking elsewhere'')
\167\ Mosteller, Unneccesary Amendment, supra note 18.
\168\ Id. at 4.
\169\ NIJ Study, supra note 7, at 10.
\170\ See supra note 9 (noting minority victims least likely to be
afforded rights today). Cf. Henderson, supra note 51 (criticizing
``lottery approach to affording victims' rights).
---------------------------------------------------------------------------
Professor Mosteller devotes much of his article to challenging the
claim that the Amendment is needed to block excessive official
deference to the rights of criminal defendants. Proponents of the
Amendment have argued that, given two hundred years of well-established
precedent supporting defendants' rights, the apparently novel victims'
rights found in state constitutional amendments and elsewhere too
frequently have been ignored on spurious grounds of alleged
conflict.\171\ Professor Mosteller, however, rejects this argument on
the ground that there is no ``currently valid appellate case in which a
defendant's conviction was reversed because of a provision of state or
federal law or state constitution that granted a right to a victim.''
\172\ As a result, he concludes, there is no evidence of ``a
significant body of law that would warrant the cure of a constitutional
provision.'' \173\
---------------------------------------------------------------------------
\171\ See, e.g., infra notes 182-226 and accompanying text
(discussing victims rights in the Oklahoma City bombing case).
\172\ Mosteller, Unnecessary Amendment, supra note 18.
\173\ Id. at 7-8.
---------------------------------------------------------------------------
This argument does not refute the case for the Amendment, but
rather a strawman erected by the opponents. The important issue is not
whether victims rights are thwarted by a body of appellate law, but
rather whether they are blocked by any obstacles, including most
especially obstacles at the trial level where victims must first
attempt to secure their rights. One would naturally expect to find few
appellate court rulings rejecting victims' rights; there are few
victims' rulings anywhere, let alone in appellate courts. To get to the
appellate level--in this context, the ``mansion'' of the criminal
justice system--victims first must pass through the ``gatehouse''--the
trial court.\174\ That trip is not an easy one. Indeed, one of the main
reasons for the Amendment is that victims find it extraordinarily
difficult to get anywhere close to appellate courts. To begin with,
victims may be unaware of their rights or discouraged by prosecutors
from asserting them. Even if aware and interested in asserting their
rights in court, victims may lack the resources to obtain counsel.
Finding counsel, too, will be unusually difficult, since the field of
victims' rights is a new one in which few lawyers specialize.\175\ Time
will be short, since many victims' issues (particularly those revolving
around sequestration rules) arise at the start of or even during the
trial. Even if a lawyer is found, she must arrange to file an
interlocutory appeal in which the appellate court will be asked to
intervene in on-going trial proceedings in the court below. If victims
can overcome all these hurdles, the courts still possess an astonishing
arsenal of other procedural obstacles to prevent victim actions, as
Professor Bandes' soon-to-be-published article cogently
demonstrates.\176\ In light of all these hurdles, appellate opinions
about victims issues seem, to put it mildly, quite unlikely.
---------------------------------------------------------------------------
\174\ Cf. Yale Kaimsar, Equal Justice in the Gatehouses and
Mansions of American Criminal Procedure, in Yale Kamisar, et al.,
Criminal Justice in Our Time 19 (1965) (famously developing this
analogy in the context of police interrogation).
\175\ See Henderson, supra note 51. Hopefully this situation may
improve with the publication of Professor Beloof's law school casebook
on victim's rights, see Beloof, supra note 124, which may encourage
more training in this area.
\176\ See Susan Bandes, Victim Standing, 1999 Utah L. Rev.--
(forthcoming); see also Susan Bandes, The Negative Constitution: A
Critique, 88 Mich. L. Rev. 2271 (1991); Susan Bandes, The Idea of a
Case, 42 Stan. L. Rev. 227 (1990).
---------------------------------------------------------------------------
One can read the resulting dearth of rulings as proving, as
Professor Mosteller would have it, that no reported appellate decisions
strike down victims' rights. Yet it is equally true that, at best, only
a handful of reported appellate decisions uphold victims' rights. This
fact tends to provide an explanation for the frequent reports of
denials of victims' rights at the trial level. Given that these rights
are newly-created and the lack of clear appellate sanction, one would
expect trial courts to be wary of enforcing these rights against the
inevitable, if invariably imprecise, claims of violations of a
defendant's rights.\177\ Narrow readings will be encouraged by the
asymmetries of appeal--defendants can force a new trial if their rights
are denied, while victims cannot.\178\ Victims, too, may be reluctant
to attempt to assert untested rights for fear of giving defendant a
grounds for a successful appeal and a new trial.\179\
---------------------------------------------------------------------------
\177\ As shown supra, victims rights do not actually conflict with
defendant's rights. Frequently, however, it is the defendant's mere
claim of alleged conflict, not carefully considered by the trial court,
that ends up producing. (along with the other contributing factors) the
denial of victims rights.
\178\ See Kate Stith, The Risk of Legal Error in Criminal Cases:
Some Consequences of the Asymmetry in the Right to Appeal, 57 U. Chi.
L. Rev. 1 (1990); see also Erez, Perspectives of Legal Professionals,
supra note 69, at 20 (noting reluctance of South Australian judges to
rely on victim evidence because of appeal risk).
\179\ See Paul G. Cassell, Fight for Victims' Justice is Going
Strong, Deseret News, July 10, 1996, at A7 (illustrating this problem
with uncertain Utah case law on victim's right to be present).
---------------------------------------------------------------------------
In short, nothing in the appellate landscape provides a basis for
concluding that all is well with victims in the nation's trial courts.
The Amendment's proponents have provided ample examples of victims
denied rights in the day-to-day workings of the criminal trials. The
Amendment's opponents seem tacitly to concede the point by shifting the
debate to the more rarified appellate level. Thus, here again, the
opponents have not fully engaged the case for the Amendment.
As one final fallback position, the Amendment's critics maintain
that it will not ``eliminate'' the problems in enforcing victims rights
because some level of uncertainty will always remain.\180\ However, as
noted before, the issue is not eliminating uncertainty, but reducing
it. Surely giving victims explicit constitutional protection will
vindicate their rights in many circumstances where today the trial
judge would be uncertain how to proceed. Moreover, the Amendment's
clear conferral of ``standing'' on victims \181\ will help to develop a
body of precedents on how victims are to be treated. There is,
accordingly, every reason to expect that the Amendment will reduce
uncertainties substantially and improve the lot of crime victims.
---------------------------------------------------------------------------
\180\ Mosteller, Unnecessary Amendment, supra note 18.
\181\ See S.J. Res. 3, Sec. 2.
---------------------------------------------------------------------------
b. the oklahoma city illustration of the ``necessary'' amendment
On assessing whether the amendment is ``necessary,'' it might be
said that a page of history is worth of volume of logic.\182\ To be
sure, one can cite examples of victims who have received fair treatment
in the criminal justice system.\183\ Nonetheless, this and other
examples hardly make the case against reform given the pressing need
for improvement in other cases.\184\ The question then becomes whether
a constitutional amendment would operate to spur that improvement. Here
it is necessary to look not at the system's successes in ruling on
victims claims, but rather at its failures. The Oklahoma City bombing
case provides an illustration of the difficulties victims face in
having their claims considered by appellate courts.
---------------------------------------------------------------------------
\182\ Cf. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)
(Holmes, J.).
\183\ See e.g., Henderson, supra note 51.
\184\ See id. (Conceding this point).
---------------------------------------------------------------------------
During a pre-trial hearing on a motion to suppress, the District
Court sua sponte issued a ruling precluding any victim who wished to
provide victim impact testimony at sentencing from observing any
proceeding in the case.\185\ The court based its ruling on Rule 615 of
the Federal Rules of Evidence--the so-called ``rule on witnesses.''
\186\ In the hour that the court then gave to victims to make this
wrenching decision about testifying, some of the victims opted to watch
the proceedings; others decided to leave Denver to remain eligible to
provide impact testimony.\187\
---------------------------------------------------------------------------
\185\ United States v. McVeigh, No. 96-CR-68 (D. Colo.), 6/26/96
Tr. at 5.
\186\ See Fed. R. Evid. 615. United States v. McVeigh, 6/26/96 Tr.
at 4-5.
\187\ See 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 73
(statement of Marsha Kight).
---------------------------------------------------------------------------
Thirty-five victims and survivors of the bombing then filed a
motion asserting their own standing to raise their rights under federal
law and, in the alternative, seeking leave to file a brief on the issue
as amici curiae.\188\ The victims noted that the district court
apparently had overlooked the Victims' Bill of Rights, a federal
statute guaranteeing victims the right (among others) ``to be present
at all public court proceedings, unless the court determines that
testimony by the victim would be materially affected if the victim
heard other testimony at trial.'' \189\
---------------------------------------------------------------------------
\188\ Motion of Marsha and Tom Kight et al. and the National
Organization for Victim Assistance Asserting Standing to Raise Rights
Under the Victims' Bill of Rights and Seeking Leave to File a Brief as
Amici Curiae, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Sept.
30, 1996). I represented a number of the victims on this matter on a
pro bono basis, along with able co-counsel at Robert Hoyt, Arnon
Siegel, Karan Bhatia, and Reg Brown at the Washington, D.C., law firm
of Wilmer, Cutler, and Pickering and Sean Kendall of Boulder, Colorado.
For a somewhat fuller recounting of the victims' issues in the case,
see my statement in 1997 Sen. Judiciary Comm. Hearing, supra note 14,
at 106-13.
\189\ 42 U.S.C. Sec. 10606(b)(4). The victims also relied on a
similar provision found in the authorization for closed circuit
broadcasting on the trial, 42 U.S.C. Sec. 10608(a), and on a First
Amendment, right of access to public court proceedings. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
---------------------------------------------------------------------------
The District Court then held a hearing to reconsider the issue of
excluding victim witnesses.\190\ The court first denied the victims'
motion asserting standing to present their own claims, allowing them
only the opportunity to file a brief as amici curiae.\191\ After
argument by the Department of Justice and by the defendants, the court
denied the motion for reconsideration.\192\ It concluded that victims
present during court proceedings would not be able to separate the
``experience of trial'' from ``the experience of loss from the conduct
in question,'' and, thus, their testimony at a sentencing hearing would
be inadmissible.\193\ Unlike the original ruling, which was explicitly
premised on Rule 615, the October 4 ruling was more ambiguous, alluding
to concerns under the Constitution, the common law, and the rules of
evidence.\194\
---------------------------------------------------------------------------
\190\ United States v. McVeigh, No. 96-CR-69 D. Colo.), 10/4/96 Tr.
\191\ Id. at 499-500.
\192\ Id., at 519.
\193\ Id. at 517.
\194\ Id. at 519.
---------------------------------------------------------------------------
The victims then filed a petition for writ of mandamus in the U.S.
Court of Appeals for the Tenth Circuit seeking review of the district
court's ruling.\195\ Because the procedures for victims appeals were
unclear, the victims filed a separate set of documents appealing from
the ruling.\196\ Similarly, the Department of Justice, uncertain of
precisely how to proceed procedurally, filed both an appeal and a
petition for a writ of mandamus.
---------------------------------------------------------------------------
\195\ Petition for Writ of Mandamus, Kight et al. v. Matsch, No.
96-1484 (10th Cir. Nov. 6, 1996).
\196\ United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997).
---------------------------------------------------------------------------
Three months later, a panel of the Tenth Circuit rejected--without
oral argument--both the victims' and the United States' claims on
jurisdictional grounds. With respect to the victims' challenges, the
court concluded that the victims lacked ``standing'' under Article III
of the Constitution because they had no ``legally protected interest''
to be present at the trial and consequently had suffered no ``injury in
fact'' from their exclusion.\197\ The Tenth Circuit also found the
victims had no right to attend the trial under any First Amendment's
right of access.\198\ Finally, the Tenth Circuit rejected, on
jurisdictional grounds, the appeal and mandamus petition filed by the
United States.\199\ Efforts by both the victims and the Department to
obtain a rehearing were unsuccessful,\200\ even with the support of
separate briefs urging rehearing from 49 members of Congress, all six
Attorneys General in the Tenth Circuit, and some of the leading victims
groups in the nation.\201\
---------------------------------------------------------------------------
\197\ Id. at 334.
\198\ Id. at 335.
\199\ Id. at 329-35.
\200\ Order, United States v. McVeigh, No. 96-1469 (10th Cir. Mar.
11, 1997).
\201\ See Br. of Amici Curiae Washington Legal Foundation and
United States Senators Don Nickles and 48 other members of Congress,
United States v. McVeigh, No. 96-1469 (10th Cir. 1997) (warning that
decision meant victims of federal crimes will never be heard for
violations of their rights); Br. of Amici curiae States of Oklahoma,
Colorado, Kansas, New Mexico, Utah, and Wyoming Supporting the
Suggestion for Rehearing and the Suggestion for Rehearing En Banc by
the Oklahoma City Bombing Victims and the United States, United States
v. McVeigh, No. 96-1469 (10th Cir. Feb. 14, 1997) (warning decision
created ``an `important problem' for the administration of justice
within the Tenth Circuit''); Br. of Amici Curiae National Victims
Center, Mothers Against Drunk Driving, the National Victims'
Constitutional Amendment Network, Justice for Surviving Victims, Inc.,
Concerns of Police Survivors, Inc., and Citizens for Law and Order,
Inc., in Support of Rehearing, United States v. McVeigh, No. 96-1469
(10th Cir. Feb. 17, 1997) (warning that decision will ``preclude anyone
from exercising any rights afforded under the Victims' Bill of
Rights'').
---------------------------------------------------------------------------
In the meantime, the victims, supported by the Oklahoma Attorney
General's Office, sought remedial legislation in Congress clearly
stating that victims should not have to decide between testifying at
sentencing and watching the trial. The Victims' Rights Clarification
Act of 1997 was introduced to provide that watching a trial does not
constitute grounds for denying the chance to provide an impact
statement. Representative McCollum, a sponsor of the legislation,
observed the painful choice that the district court's ruling was
forcing on the victims:
As one of the Oklahoma City survivors put it, a man who lost
one eye in the explosion, ``It's not going to affect our
testimony at all. I have a hole in my head that's covered with
titanium. I nearly lost my hand. I think about it every minute
of the day.'' That man, incidentally, is choosing to watch the
trial and to forfeit his right to make a victim impact
statement. Victims should not have to make that choice.\202\
---------------------------------------------------------------------------
\202\ 142 Cong. Rec. H1050 (daily ed. Mar. 18, 1997) (statement of
Rep. McCollum).
The 1997 measure passed the House by a vote of 414 to 13.\203\ The next
day, the Senate passed the measure by unanimous consent.\204\ The
following day, President Clinton signed the Act into law,\205\
explaining that ``when someone is a victim, he or she should be at the
center of the criminal justice process, not on the outside looking
in.'' \206\
---------------------------------------------------------------------------
\203\ Id. at H1068 (daily ed. Mar. 19, 1997).
\204\ Id. at S2509 (daily ed. Mar. 19, 1997).
\205\ Pub. L. 105-6, codified as 18 U.S.C. Sec. 3510.
\206\ Statement by the President, Mar. 20, 1997.
---------------------------------------------------------------------------
The victims then promptly filed a motion with the district court
asserting a right to attend under the new law.\207\ The victims
explained that the new law invalidated the court's earlier
sequestration order and sought a hearing on the issue.\208\ Rather than
squarely uphold the new law, however, the district court entered a new
order on victim-impact witness sequestration.\209\ The court concluded
``any motions raising constitutional questions about this legislation
would be premature and would present issues that are not now ripe for
decision.'' \210\ Moreover, the court held that it could address issues
of possible prejudicial impact from attending the trial by conduct a
voir dire of the witnesses after the trial.\211\ The district court
also refused to grant the victims a hearing on the application of the
new law, concluding that its ruling rendered their request ``moot.''
\212\
---------------------------------------------------------------------------
\207\ Memorandum of Marsha Kight et al. on the Victims Rights
Clarification Act of 1997, United States v. McVeigh, No. 96-CR-68-M (D.
Colo. Mar. 21, 1997).
\208\ Motion of Marsha Kight et al. for Hearing, United States v.
McVeigh, No. 96-CR-68-M (D. Colo. Mar. 21, 1997).
\209\ Order Amending Order Under Rule 615, United States v.
McVeigh, No. 96-CR-68-M (D. Colo. Mar. 25, 1997).
\210\ Id.
\211\ Id. at 4-5.
\212\ Order Declaring Motion Moot, United States v. McVeigh, No.
96-CR-68-M (D. Colo. Mar. 25, 1997).
---------------------------------------------------------------------------
After that ruling, the Oklahoma City victim impact witnesses --once
again--had to make a painful decision about what to do. Some of the
victim impact witnesses decided not to observe the trial because of
ambiguities and uncertainties in the court's ruling, raising the
possibility of exclusion of testimony from victims who attended the
trial.\213\ The Department of Justice also met with many of the impact
witnesses, advising them of these substantial uncertainties in the law,
and noting that any observation of the trial would create the
possibility of exclusion of impact testimony.\214\ To end this
confusion, the victims filed a motion for clarification of the judge's
order.\215\ The motion noted that ``[b]ecause of the uncertainty
remaining under the Court's order, a number of the victims have been
forced to give up their right to observe defendant McVeigh's trial.
This chilling effect has thus rendered the Victims Rights Clarification
Act of 1997 * * * for practical purposes a nullity.'' \216\
Unfortunately, the effort to obtain clarification did not succeed, and
McVeigh's trial proceeded without further guidance for the victims.
---------------------------------------------------------------------------
\213\ See 1997 Sen. Judiciary Comm. Hearing, supra note 14
(statement of Paul Cassell); id. (statement of Marsha Kight).
\214\ See 1997 Sen. Judiciary Comm. Hearing, supra note 14
(statement of Paul Cassell).
\215\ Request of the Victims of the Oklahoma City Bombing and the
National Organization for Victim Assistance for Clarification of the
Order Amending the Order Under Rule 615, United States v. McVeigh, No.
96-CR-68-M (Apr. 4, 1997).
\216\ Id. at 2.
---------------------------------------------------------------------------
After McVeigh was convicted, the victims filed a motion to be heard
on issues pertaining to the new law.\217\ Nonetheless, the court
refused to allow the victims to be represented by counsel during
argument on the law or during voir dire about the possible prejudicial
impact of viewing the trial.\218\ The court, however, concluded (as the
victims had suggested all along) that no victim was in fact prejudiced
as a result of watching the trial.\219\
---------------------------------------------------------------------------
\217\ Motion of the Victims of the Oklahoma City Bombing to
Reassert the Motion for a Hearing on the Application of the Victim
Rights Clarification Act of 1997, United States v. McVeigh, No. 96-CR-M
(June 2, 1997).
\218\ See Hearing on Victims Rights Clarification Act, U.S. v.
McVeigh, available in 1997 WL 290019, at *7 (concluding that statute
does not ``creates standing for the persons who are identified as being
represented by counsel in filing that brief'').
\219\ See, e.g., Examination of Diane Leonard, U.S. v. McVeigh,
June 4, 1997, available in 1997 WL 292341.
---------------------------------------------------------------------------
This recounting of the details of the Oklahoma City bombing
litigation leaves no doubt about the difficulties that victims face
with mere statutory protection of their rights. For a number of the
victims, the rights afforded in the Victims Rights Clarification Act of
1997 and the earlier Victims Bill of Rights were not protected. They
did not observe the trial of defendant Timothy McVeigh because of
lingering doubts about the constitutional status of these statutes.
Not only were these victims denied their right to observe the
trial, but perhaps equally troubling is that the fact that they were
never able to speak even a single word in court, through counsel, on
this issue. This denial occurred in spite of legislative history
specifically approving of victim participation. In passing the Victims
Rights Clarification Act, the House Judiciary Committee stated that it
``assumes that both the Department of Justice and victims will be heard
on the issue of a victim's exclusion, should a question of their
exclusion arise under this section.'' \220\ In the Senate, the primary
sponsor of the bill similarly stated: ``In disputed cases, the courts
will hear from the Department of Justice, counsel for the affected
victims, and counsel for the accused.'' Yet the victims were never
heard.
---------------------------------------------------------------------------
\220\ H.R. Rep. 105-28 at 10 (Mar. 17, 1997) (emphasis added).
Supporting this statement was the fact that, while the Victims Bill of
Rights apparently barred some civil suits by victims, 42 U.S.C.
Sec. 10606(c), the new law contained no such provision. This was no
accident. As the Report of the House Judiciary Committee pointedly
explained, ``The Committee points out that it has not included language
in this statute that bars a cause of action by the victim, as it has
done in other statutes affecting victims' rights.'' H.R. Rep. 105-28 at
10 (Mar. 17, 1997).
---------------------------------------------------------------------------
Some might claim that this treatment of the Oklahoma City bombing
victims should be written off as atypical. However, there is every
reason to believe that the victims here were far more effective in
attempting to vindicate their rights than victims in less notorious
cases. The Oklahoma City bombing victims were mistreated while the
media spotlight has been on, when the nation was watching. The
treatment of victims in forgotten courtrooms and trials is certainly no
better, and in all likelihood much worse. Moreover, the Oklahoma City
bombing victims had six lawyers working to press their claims in
court--a law professor familiar with victims rights, four lawyers at a
prominent Washington, D.C. law firm, and a local counsel in Colorado--
as well as an experienced and skilled group of lawyers from the
Department of Justice. In the normal case, it often will be impossible
for victims to locate a lawyer willing to pursue complex and unsettled
issues about their rights without compensation. One must remember that
crime most often strikes the poor and others in a poor position to
retain counsel.\221\ Finally, litigating claims concerning exclusion
from the courtroom or other victims rights promises to be quite
difficult. For example, a victim may not learn that she will be
excluded until the day the trial starts. Filing timely appellate
actions in such circumstances promises to be practically impossible. It
should therefore come as little surprise that this litigation was the
first in which victims sought federal appellate court review of their
rights under the Victims Bill of Rights, even though that statute was
passed in 1990.
---------------------------------------------------------------------------
\221\ U.S. Dept. of Justice, Office of Justice Programs, Bureau of
Justice Statistics, Violent Crime in the United States 8 (March 1991).
Cf. Lynn Henderson, Co-Opting Compassion: The Federal Victim's Rights
Amendment, 10 St. Thomas L. Rev. 579 (1998) (noting many crime victims
come from disempowered groups).
---------------------------------------------------------------------------
The undeniable, and unfortunate, result of that litigation has been
to establish--as the only reported federal appellate ruling--a
precedent that will make effective enforcement of the federal victims
rights statutes quite difficult. It is now the law of the Tenth Circuit
that victims lack ``standing'' to be heard on issues surrounding the
Victims' Bill of Rights and, for good measure, that the Department of
Justice may not take an appeal for the victims under either of those
statutes. For all practical purposes, the treatment of crime victims'
rights in federal court in Utah, Colorado, Kansas, New Mexico,
Oklahoma, and Wyoming has been remitted to the unreviewable discretion
of individual federal district court judges. The fate of the Oklahoma
City victims does not inspire confidence that all victims rights will
be fully enforced in the future. Even in other circuits, the Tenth
Circuit ruling, while not controlling, may be treated as having
persuasive value. If so, the Victims Bill of Rights will effectively
become a dead letter.
The Oklahoma City bombing victims would never have suffered these
indignities if the Victims Rights Amendment had been the law of the
land. First, the victims would never have been subject to
sequestration. The Amendment guarantees all victims the constitutional
right ``not to be excluded from all public proceedings relating to the
crime.'' \222\ This would have prevented the sequestration order from
being entered in the first place. Moreover, the Amendment affords
victims the right ``[t]o be heard, if present, at a public * * * trial
proceeding to determine a * * * sentence. * * *'' \223\ This provision
would have protected the victims' right to provide impact testimony.
Finally, the Amendment provides that ``the victim shall have standing
to assert the rights established by this article,'' \224\ a protection
guaranteeing the victims, through counsel, the opportunity to be heard
to protect those rights.
---------------------------------------------------------------------------
\222\ S.J. Res. No. 3, Sec. 1, 106th Cong., 1st Sess. (1999).
\223\ Id.
\224\ Id., Sec. 2.
---------------------------------------------------------------------------
Critics of the Victims' Rights Amendment have cited the Oklahoma
City remedial legislation as an example of the ``capability of victims
to secure their interests through popular political action'' \225\ and
``a paradigmatic example of how statutes, when properly crafted, can
and do work.'' \226\ This sentiment is wide of the mark. To the
contrary, the Oklahoma City case provides a compelling illustration of
why a constitutional amendment is ``necessary'' to fully protect
victims rights in this country.
---------------------------------------------------------------------------
\225\ Mosteller, Unnecessary Amendment, supra note 18.
\226\ S. Rep. 105-409 at 56 (minority view of Sens. Leahy, Kennedy,
and Kohl).
---------------------------------------------------------------------------
III. Structural Challenges
A final category of objections to the Victims' Rights Amendment can
be styled as ``structural'' objections. These objections concede both
the normative claim that victims' rights are desirable and the factual
claim that such rights are not effectively provided today. These
objections maintain, however, that a federal constitutional amendment
should not be the agency through which victims' rights are afforded.
These objections come in three primary forms. The standard form is that
victims' rights simply do not belong in the Constitution as they are
different from other rights found there. A variant on this critique is
that any attempt to constitutionalize victims' rights will lead to
inflexibility, producing disastrous, unintended consequences. A final
form of the structural challenge is that the Amendment violates
principles of federalism. Each of these arguments, however, lacks
merit.
a. claim that victims' rights do not belong in the constitution
Perhaps the most basic challenge to the Victims' Rights Amendment
is that victims' rights simply do not belong in the Constitution. The
most fervent exponent of this view may be constitutional scholar Bruce
Fein, who has testified before Congress that the Amendment is improper
because it does not address ``the political architecture of the
nation.'' \227\ Putting victims' rights into the Constitution, the
argument runs, is akin to constitutionalizing provisions of the
National Labor Relations Act or other statutes, and thus would
``trivialize'' the Constitution.\228\ Indeed, the argument concludes,
to do so would ``detract from the sacredness of the covenant.'' \229\
---------------------------------------------------------------------------
\227\ Proposals to Provide Rights to Victims of Crime: Hearings
Before the House Judiciary Comm., 105th Cong., 1st Sess. 96 (1997).
\228\ See 1996 Sen. Judiciary Comm. Hearings, supra note 16, at 101
(statement of Bruce Fein).
\229\ Id. at 100. For similar views, see, e.g., Cluttering the
Constitution, N.Y. Times, July 15, 1996; Stephen Chapman,
Constitutional Clutter: The Wrongs of the Victims' Rights Amendment,
Chi. Trib., Apr. 20, 1997.
---------------------------------------------------------------------------
This argument misconceives the fundamental thrust of the Victims'
Rights Amendment, which is to guarantee victim participation in basic
governmental processes. The Amendment extends to victims the right to
be notified of court hearings, to attend those hearings, and to
participate in them in appropriate ways. As Professor Tribe and I have
elsewhere explained:
These are rights not to be victimized again through the
process by which government officials prosecute, punish, and
release accused or convicted offenders. These are the very
kinds of rights with which our Constitution is typically and
properly concerned--rights of individuals to participate in all
those government processes that strongly affect their
lives.\230\
---------------------------------------------------------------------------
\230\ Tribe & Cassell, supra note 25, at B7.
Indeed, our Constitution has been amended a number of times to
protect participatory rights of citizens. For example, the Fourteenth
Amendment and Fifteenth Amendment was added, in part, to guarantee that
the newly-freed slaves could participate on equal terms in the judicial
and electoral processes, while the Nineteenth Amendment and Twenty-
Sixth Amendments were added to protect the voting rights of women and
eighteen-year-olds.\231\ The Victims Rights Amendment continues in that
venerable tradition by recognizing that citizens have the right to
appropriate participation in the state procedures for punishing crime.
---------------------------------------------------------------------------
\231\ U.S. Const. amends. XIV, XV, XIX, XXVI.
---------------------------------------------------------------------------
Confirmation of the constitutional worthiness of victims' rights
comes from the judicial treatment of an analogous right: the claim of
the media to a constitutionally protected interest in attending trials.
In Richmond Newspapers v. Virginia,\232\ the Court agreed that the
First Amendment guaranteed the right of the public and the press to
attend criminal trials. Since that decision, few have argued that the
media's right to attend trials is somehow unworthy of constitutional
protection, suggesting a national consensus that attendance rights to
criminal trials are properly the subject of constitutional law. Yet the
current doctrine produces what must be regarded as a stunning disparity
in the way courts handle claims of access to court proceedings.
Consider, for example, two issues actually litigated in the Oklahoma
City bombing case. The first was the request of an Oklahoma City
television station for access to subpoenas for documents issued through
the court. The second was the request of various family members of the
murdered victims to attend the trial, discussed previously.\233\ My
sense is that the victims' request should be entitled to at least as
much respect as the media request. Yet under the law that exists today,
the television station has a First Amendment interest in access to the
documents, while the victims' families have no First Amendment interest
in challenging their exclusion from the trial.\234\ The point here is
not to argue that victims deserve greater constitutional protection
than the press, but simply that if press interests can be read into the
Constitution without somehow violating the ``sacredness of the
covenant,'' the same can be done for victims.\235\
---------------------------------------------------------------------------
\232\ 448 U.S. 555 (1980).
\233\ See notes 182-226 supra and accompanying text.
\234\ Compare United States v. McVeigh, 918 F. Supp. 1452, 1465-66
(W.D. Okl. 1996) (recognizing press interest in access to documents)
with United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997)
(victims do not have standing to raise First Amendment challenge to
order excluding them from trial); see also United States v. McVeigh,
119 F.3d 806 (10th Cir. 1997) (recognizing First Amendment interest of
the press in access to documents, but finding sufficient findings made
to justify sealing order).
\235\ In this way, the Victims' Amendment expands First Amendment
liberties, not detracts from them. But cf. Henderson, supra note 51
(suggesting that victims' rights arguably could affect First Amendment
liberties, but conceding that ``no one has argued for a balancing of
victims' rights against the rights of the press. * * *'').
---------------------------------------------------------------------------
Professor Henderson has advanced a variant on the victims'-rights-
don't-belong-in-the-Constitution argument with her claim that ``a
theoretical constitutional ground for victim's rights has yet to be
developed.'' \236\ Law professors, myself included, enjoy dwelling on
theory at the expense of real world issues; but even on this plane the
objection lacks merit. Henderson seems to concede, if I read her
correctly, that new constitutional rights can be justified on grounds
they support individual dignity and autonomy.\237\ In her view, then,
the question becomes one of discovering which policies society should
support as properly reflecting individual dignity and autonomy. On this
score, there is little doubt that society currently believes that a
victim's right to participate in the criminal process is a fundamental
one deserving protection. As Professor Beloof has explained at length
in his piece here, ``Love it or loath it, the law now acknowledges the
importance of victim participation in the criminal process.'' \238\
---------------------------------------------------------------------------
\236\ Id.
\237\ See id.
\238\ Beloof, supra note 89; see also id. at Appdendix A
(collecting numerous examples from around the country). See generally
Beloof, supra note 124 (legal case book replete with examples of
victims' rights in the process).
---------------------------------------------------------------------------
A further variant on the unworthiness objection is that our
Constitution protects only ``negative'' rights against governmental
abuse. Professor Henderson writes, for example, that the Amendment's
rights differs from others in the Constitution, which ``tend to be
rights against government.'' \239\ Setting aside the possible response
that the Constitution ought to recognize affirmative duties of
government,\240\ the fact remains that the Amendment's thrust is to
check governmental power, not expand it.\241\ Again, the Oklahoma City
case serves as a useful illustration. When the victims filed a
challenge to a sequestration order directed at them, they sought the
liberty to attend court hearings. In other words, they were challenging
the exercise of government power deployed against them, a conventional
subject for constitutional protection. The other rights in the
Amendment fit this pattern, as they restrain government actors, not
extract benefits for victims. Thus, the state must give notice before
it proceeds with a criminal trial; the state must respect a victim
right to attend that trial; and the state must consider the interests
of victims at sentencing and other proceedings. These are the standard
fare of constitutional protections, and indeed defendants already
possess comparable constitutional rights. Thus, extending these rights
to victims is no novel creation of affirmative government
entitlements.\242\
---------------------------------------------------------------------------
\239\ Henderson, supra note 51 (emphasis in original; see also 1996
House Judiciary Comm. Hearings, supra note 6 (statement of Roger Pilon
(Amendment has the ``feel'' of listing ``rights not as liberties that
government must respect as it goes about its assigned functions but as
`entitlements that the government must affirmatively provide''); The
Nation, Feb. 10, 1997, at 16 (Amendment ``[u]pends the historic purpose
of the Bill of Rights'').
\240\ See Susan Bandes, The Negative Constitution: A Critique, 88
Mich. L. Rev. 2271 (1971).
\241\ See Beloof, supra note 89.
\242\ Perhaps some might quibble with this characterization as
applied to a victims' right to an order of restitution, contending that
this is a right solely directed against deprivations perpetrated by
private citizens. However, the right to restitution is also a right
against government, as it is a right to ``an order of restitution,'' an
order that can only be provided by the courts. In any event, even if
the restitution right is somehow regarded as implicating private
action, it should be noted that the Constitution already addresses
private conduct. The Thirteenth Amendment forbids ``involuntary
servitude,'' U.S. Const. amend. XIII, a provision that encompasses
private violation of rights. See, e.g., United States v. Kozminski, 487
U.S. 931 (1988). See generally Henderson, supra note 51 (noting ``good
arguments'' that the Thirteenth Amendment ``applies to individuals'');
Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth
Amendment Response to Deshaney, 105 Harv. L. Rev. 1359 (1992)
(discussing contours of Thirteenth Amendment).
Similarly, some might argue that the Constitution does not
generally require that the government give citizens notice of their
rights. Whatever the merits of this claim as a general matter, it has
little application to the criminal justice system. To cite but one
example, the Sixth Amendment right to counsel, requires notice to
criminal defendants, indeed express notice. See Faretta v. California,
422 U.S. 806, 835-36 (1975). Along the same lines it would be unheard
of to schedule a trial without providing notice to a criminal
defendant. Thus notice to victims simply follows in these well trodden
paths.
---------------------------------------------------------------------------
Still another form of this claim is that victims' rights need not
be protected in the Constitution because victims possess power in the
political process--unlike, for example, unpopular criminal
defendants.\243\ This claim is factually unconvincing because victims'
power is easy to overrate. Victims' claims inevitably bump up against
well entrenched interests within the criminal justice system,\244\ and
to date the victims' movement has failed to achieve many of its
ambitions. Victims have not, for example, generally obtained the right
to sue the government for damages for violations of their rights, a
right often available to criminal defendants and other ostensibly less
powerful groups. Additionally, the political power claim is
theoretically unsatisfying as a basis for denying constitutional
protection. After all, freedom of speech, freedom of religion, and
similar freedoms hardly want for lack of popular support, yet they are
appropriately protected by constitutional amendments. A standard
justification for these constitutionally guaranteed freedoms is that we
should make it difficult for society to abridge such rights, to avoid
the temptation to violate them in times of stress or for unpopular
claimants.\245\ Victims' rights fit perfectly within this rationale.
Institutional players in the criminal justice system are subject to
readily understandable temptations to give short shrift to victims'
rights. And their willingness to protect the rights of unpopular crime
victims is sure to be tested no less than society's willingness to
protect the free speech rights of unpopular speakers.\246\ Indeed,
evidence exists that the biggest problem today in enforcing victims'
rights is inequality, as racial minorities and other less empowered
victims are more frequently denied their rights.\247\
---------------------------------------------------------------------------
\243\ See, e.g, Henderson, supra note 51; Mosteller, supra note 18;
1996 Senate Judiciary Comm. Hearings, supra note 16 (statement of Bruce
Fein).
\244\ See Andrew J. Karmen, Who's Against Victims' Rights? The
Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice,
8 St. John's J. of Legal Commentary 157, 162-69 (1992).
\245\ See Abrams v. United States, 250 U.S. 616, 629 (1919)
(Holmes, J., dissenting); see also Vincent Blasi, The Pathological
Perspective and the First Amendment, 85 Colum. L. Rev. 449 (1985).
\246\ See Karmen, supra note 244 (explaining why criminal justice
professionals are particularly unlikely to honor victims' rights for
marginalized groups).
\247\ National Victim Center, Statutory and Constitutional
Protection of Victims' Rights: Implementation and Impact on Crime
Victims--Sub-Report: Comparison of White and Non-White Crime Victim
Responses Regarding Victims' Rights 5 (June 5, 1997).
---------------------------------------------------------------------------
A final worthiness objection is the claim that victims' rights
``trivialize'' the Constitution,\248\ by addressing such a mundane
subject. It is hard for anyone familiar with the plight of crime
victims to respond calmly to this claim. Victims of crime literally
have died because of the failure of the criminal justice system to
extend to them the rights protected by the Amendment. Consider, for
example, the victims' right to be notified upon a prisoner's release.
The Department of Justice recently explained that ``[a]round the
country, there are a large number of documented cases of women and
children being killed by defendants and convicted offenders recently
released from jail or prison. In many of these cases, the victims were
unable to take precautions to save their lives because they had not
been notified.''\249\ The tragic unnecessary deaths of those victims
is, to say the least, no trivial concern.
---------------------------------------------------------------------------
\248\ 1996 Senate Judiciary Comm. Hearings, supra note 16, at 101
(statement of Bruce Fein).
\249\ U.S. Dep't of Justice, Office for Victims of Crime, New
Directions from the Field: Victims' Rights and Services for the 21st
Century 14 (1998); see Jeffrey A. Cross, Note, The Repeated Sufferings
of Domestic Violence Victims Not Notified of Their Assailant's Pre-
Trial Release from Custody: A Call for Mandatory Domestic Violence
Victim Notification Legislation, 34 J. Family L. 915 (1996).
---------------------------------------------------------------------------
Other rights protected by the Amendment are similarly
consequential. Attending a trial, for example, can be a crucial event
in the life of the victim. The victim's presence can not only
facilitate healing of debilitating psychological wounds,\250\ but also
help the victim try to obtain answers to haunting questions. As one
woman who lost her husband in the Oklahoma City bombing explained,
``When I saw my husband's body, I began a quest for information as to
exactly what happened. The culmination of that quest, I hope and pray,
will be hearing the evidence at a trial.'' \251\ On the other hand,
excluding victims from trials--while defendants and their families may
remain--can itself revictimize victims, creating serious additional or
``secondary'' harm from the criminal process itself.\252\ In short, the
claim that the Victims Rights Amendment trivializes the Constitution is
itself a trivial contention.
---------------------------------------------------------------------------
\250\ See supra notes 89-95 and accompanying text.
\251\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 110
(statement of Paul Cassell) (quoting victim).
\252\ See supra notes 90-92 and accompanying text.
---------------------------------------------------------------------------
b. the problem of inflexible constitutionalization
Another argument raised against the Victims' Rights Amendment is
that victims' rights should receive protection through flexible
statutes, not an inflexible constitutional amendment. If victims'
rights are placed in the Constitution, the argument runs, it will be
impossible to correct any problems that might arise. The Judicial
Conference explication of the argument for statutory protection is
typical: ``Of critical importance, such an approach is significantly
more flexible. It would more easily accommodate a measured approach,
and allow for `fine tuning' if deemed necessary or desirable by
Congress after the various concepts in the Act are applied in actual
cases across the country.'' \253\
---------------------------------------------------------------------------
\253\ Letter from George P. Kazen, Chief U.S. District Judge,
Chair, Comm. on Criminal Law of the Judicial Conference of the United
States. to Sen. Edward M. Kennedy, Senate Comm. on the Judiciary, at 2
(Apr. 17, 1997), quoted in S. Rep. No. 105-409 at 53.
---------------------------------------------------------------------------
This argument contains a kernel of truth because its premise--the
Constitution is less flexible than a statute--is undeniably correct.
This premise is, however, the starting point for the victims' position
as well. Victims' rights all too often have been ``fine tuned'' out of
existence. As even the Amendment's critics agree, statutes are ``far
easier to ignore,'' \254\ and for this very reason victims seek to have
their rights protected in the Constitution. To carry any force, the
argument must establish that the greater respect victims will receive
from constitutionalization of their rights is outweighed by the
unintended, undesirable, and uncorrectable consequences of lodging
rights in the Constitution.
---------------------------------------------------------------------------
\254\ 1996 House Judiciary Comm. Hearings, supra note 15, at 147.
---------------------------------------------------------------------------
Such a claim is untenable. To begin with, the Victims' Rights
Amendment spells out in considerable detail the rights it extends.
While this wordiness has exposed the Amendment to the charge of
``cluttering the Constitution'' \255\ the fact is that the room for
surprises is substantially less than with other previously adopted,
more open-ended amendments. On top of the Amendment's precision, its
sponsors further have explained in great detail their intended
interpretation of the Amendment's provisions.\256\ In response, the
dissenting senators were forced to argue not that these explanations
were imprecise or unworkable, but that courts simply would ignore them
in interpreting the Amendment \257\ and, presumably, go on to impose
some contrary and damaging meaning. This prediction that courts would
leap over these explanations seems unpersuasive because courts
routinely look to the intentions of drafters, in interpreting
constitutional language no less than other enactments.\258\ Moreover,
the assumption that courts will interpret the Amendment to produce
great mischief requires justification. One can envision, for instance,
precisely the same arguments about needing flexibility being leveled
against a defendant's right to a trial by jury.\259\ What about petty
offenses? \260\ What about juvenile proceedings? \261\ How many jurors
will be required? \262\ All these questions have, as indicated in the
footnotes, been resolved by court decision without disaster to the
Union. There is every reason to expect that the Victims' Rights
Amendment will be similarly interpreted in a sensible fashion. Just as
courts have not read the seemingly unqualified language of the First
Amendment as creating a right to yell ``Fire!'' in a crowded
theater,\263\ they will not construe the Victims Rights Amendment as
requiring bizarre results.\264\
---------------------------------------------------------------------------
\255\ See Cluttering the Constitution, NY Times, July 15, 1996, at
A12.
\256\ See S. Rep. No. 105-409 at 22-37.
\257\ See S. Rep. 105-409 at 50-51 (dissenting views of Sen. Leahy,
Kennedy, and Kohl).
\258\ See, e.g., U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779,
790 (1995).
\259\ U.S. Const. amend. VI (``the accused shall enjoy the right to
a * * * trial[] by an impartial jury'').
\260\ See Baldwin v. New York, 399 U.S. 66 (1970).
\261\ See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
\262\ See Thompson v. Utah, 170 U.S. 343 (1898).
\263\ Holmes.
\264\ Critics of the Amendment have been forced to use improbable
examples to suggest that the Amendment will create unintended
difficulties. See 1997 Sen. Judiciary Comm. Hearings, supra note 14
(statement of Paul Cassell). It is interesting on this score to note
that the law professors opposed to the Amendment were unable to cite
any real world examples of language in the many state victims rights
amendments that has produced serious unintended consequences. See 1997
Letter from Law Professors, in 1997 Sen. Jud. Comm. Hearings, supra;
1996 Letter from Law Professors, in 1996 House Jud. Comm Hearings,
supra note 15.
---------------------------------------------------------------------------
In any event, the claim of unintended consequences amounts to an
argument about language--specifically, that the language is
insufficiently malleable to avoid disaster. An argument about
inflexible language can be answered with language providing elasticity.
The Victims' Rights Amendment has a provision addressed to precisely
this point. The Amendment provides that ``[e]xceptions to the rights
established by this article'' may be created ``when necessary to
achieve a compelling interest.'' \265\ Any parade of horribles
collapses under this provision. A serious unintended consequence under
the language of the Amendment is, by definition, a compelling reason
for creating an exception. Curiously, those who argue that the
Amendment is not sufficiently flexible to avoid calamity have yet to
explain why the exceptions clause fails to guarantee all the
malleability that is needed.
---------------------------------------------------------------------------
\265\ S.J. Res. 44, Sec. 3.
---------------------------------------------------------------------------
c. federalism objections
A final structural challenge to the Victims Rights Amendment is the
claim that it violates principles of federalism by mandating rights
across the country. For example, a 1997 letter from various law
professors objected that ``amending the Constitution in this way
changes basic principles that have been followed throughout American
history. * * * The ability of states to decide for themselves is denied
by this Amendment.'' \266\ Similarly, the American Civil Liberties
Union warned that the Amendment ``constitutes [a] significant intrusion
of federal authority into a province traditionally left to state and
local authorities.'' \267\
---------------------------------------------------------------------------
\266\ 1997 Law Profs Letter, reprinted in 1997 Sen. Judiciary Comm.
Hearings, supra note 14, at 140, 141; see also Mosteller, Recasting the
Battle, supra note 18.
\267\ 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 159.
---------------------------------------------------------------------------
The inconsistency of many of these newfound friends of federalism
is almost breathtaking. Where were these law professors and the ACLU
when the Supreme Court federalized a whole host of criminal justice
issues ranging from the right to counsel, to Miranda, to death penalty
procedures, to search and seizure rules, among many others? The answer,
no doubt, is that they generally applauded nationalization of these
criminal justice standards despite the adverse effect on the ability of
states ``to decide for themselves.'' Perhaps the law professors and the
ACLU have had some epiphany and mean to now launch an attack on the
federalization of our criminal justice system and to try and return
power to the states. Certainly quite plausible arguments could be
advanced in support of trimming the reach of some federal
provisions.\268\ But whatever the law professors and the ACLU may
think, it is unlikely that we will ever retreat from our national
commitment to afford criminal defendants basic rights like the right to
counsel. Victims are not asking for any retreat, but for an extension--
for a national commitment to provide basic rights in the process to
criminal defendants and to their victims. This parallel treatment works
no new damage to federalist principles.\269\
---------------------------------------------------------------------------
\268\ See, e.g., Donald A. Dripps, Foreword: Against Police
Interrogation--And the Privilege Against Self-Incrimination, 78 J.
Crim. L. & Criminology 699 (1988); Barry Latzer, Toward the
Decentralization of Criminal Procedure: State Constitutional Law and
Selective Disincorporation, 87 J. Crim. L. & Criminology 63 (1996).
\269\ If federalism were an important concern of the law
professors, one would also expect to seem them supporting language in
the Amendment guaranteeing flexibility for the states. Yet the
professors found fault with language in any earlier version of the
Amendment that gave both Congress and the states the power to
``enforce'' the Amendment, apparently encouraging the deletion of this
language. See 1997 Law Profs Letter in 1997 Sen. Judiciary Comm.
Hearings, supra note 14, at 141.
---------------------------------------------------------------------------
Precisely because of the constitutionalization and nationalization
of criminal procedure, victims now find themselves needing
constitutional protection. In an earlier era, it may have been possible
for judges to informally accommodate victims' interests on an ad hoc
basis. But coin of the criminal justice realm has now become
constitutional rights. Without those rights, victims have not been
taken seriously in the system. Thus, it is not a victims' rights
amendment that poses a danger to state power, but the lack of an
amendment. Without an amendment, states cannot give full effect to
their policy decision to protect the rights of victims. Only elevating
these rights to the federal Constitution will solve this problem. This
is why the National Govenor's Association--a long-standing friend of
federalism--has strongly endorsed the Amendment: ``The rights of
victims have always received secondary consideration within the U.S.
judicial process, even though States and the American people by a wide
plurality consider victims' rights to be fundamental. Protection of
these basic rights is essential and can only come from a fundamental
change in our basic law: the U.S. Constitution.'' \270\
---------------------------------------------------------------------------
\270\ National Govenors Association, Policy 23.1 (effective winter
1997 to winter 1999).
---------------------------------------------------------------------------
While the Victims' Rights Amendment will extend basic rights to
crime victims across the country, it leaves considerable room to the
states to determine how to accord those rights within the structures of
their own systems. For starters, the Amendment extends rights to a
``victim of a crime of violence, as these terms may be defined by law.
* * *'' \271\ The ``law'' that will define these crucial terms will
come from the states. Indeed, states retain a bedrock of control over
all victims rights provisions--without a state statute defining a
crime, there can be no ``victim'' for the criminal justice system to
consider.\272\ The Amendment also is written in terms that will give
the states considerable latitude to accommodate legitimate local
interests. For example, the Amendment only requires the states to
provide ``reasonable'' notice to victims, avoiding the inflexible
alternative of mandatory notice (which, by the way, is required for
criminal defendants \273\).
---------------------------------------------------------------------------
\271\ S.J. Res. 3, Sec. 1 (1999) (emphasis added).
\272\ See Beloof, supra note 124, at 41-43.
\273\ See United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir.),
cert. denied, 498 U.S. 817 (1990).
---------------------------------------------------------------------------
In short, federalism provides no serious objection to the
Amendment. Any lingering doubt on the point disappears in light of the
Constitution's prescribed process for amendment, which guarantees ample
involvement by the states. The Victims' Rights Amendment will not take
effect unless a full three-quarters of the states, acting through their
state legislatures, ratify the Amendment within seven years of its
approval by Congress.\274\ It is critics of the Amendment who, by
opposing congressional approval, deprive the states of their
opportunity to consider the proposal.\275\
---------------------------------------------------------------------------
\274\ U.S. Const. Amend. V; S.J. Res. 3 (1999), preamble; see also
The Federalist No. 39.
\275\ Cf. Mosteller, Unnecessary Amendment, supra note 18 (noting
that ``unfunded mandates'' argument is ``arguably inapposite for a
constitutional amendment that must be supported by three fourths of the
states since the vast majority of state would have approved imposing
the requirement on themselves''); Richard B. Bernstein, Amending
America 220 (1993) (recalling defeat of the Equal Rights Amendment in
the states and observing ``[t]he significant role of state governments
as participants in the amending process is thriving'').
---------------------------------------------------------------------------
Conclusion
This testimony has attempted to review thoroughly the various
objections leveled against the Victims' Rights Amendment, finding them
all wanting. While a few normative objections have been raised to the
Amendment, the values undergirding it are widely shared in our country,
reflecting a strong consensus that victims' rights should receive
protection. Contrary to the claims that a constitutional amendment is
somehow unnecessary, practical experience demonstrates that only
federal constitutional protection will overcome the institutional
resistance to recognizing victims' interests. And while some have
argued that victims' rights do not belong in the Constitution, in fact
the Victims' Rights Amendment addresses subjects that have long been
considered entirely appropriate for constitutional treatment.
Stepping back from these individual objections and viewing them as
a whole reveals one puzzling feature emerges that is worth a few
concluding observations. While some of the objections are carefully
developed,\276\ many others are contradicted by either specific
language in the Amendment or real world experience with the
implementation of victims' rights programs. I hasten to add that others
have observed this phenomenon of unsustainable arguments being raised
against victims' rights. One careful scholar in the field of victim
impact statements, Professor Edna Erez, comprehensively reviewed the
relevant empirical literature and concluded that the actual experience
with victim participatory rights ``suggests that allowing victims'
input into sentencing decisions does not raise practical problems or
serious challenges from the defense. Yet there is a persistent belief
to the contrary, particularly among legal scholars and professionals.''
\277\ Erez attributed the differing views of the social scientists (who
had actually collected data on the programs in action) and the legal
scholars primarily to ``the socialization of the latter group in a
legal culture and structure that do not recognize the victim as a
legitimate party in criminal proceedings.'' \278\
---------------------------------------------------------------------------
\276\ See especially the views of the dissenting Senators in this
Committee's Report and Bandes, supra note 176; Mosteller, Unnecessary
Amendment, supra note 18; Henderson, supra note 51.
\277\ Erez, Victim Participation, supra note 69, at 28.
\278\ Id. at 29; see also Erez, Perspectives of Legal
Professionals, supra note 69, at [29] (noting similar barriers to
implementing victims reforms in South Australia); Edna Erez & Kathy
Laster, Neutralizing Victim Reform: Legal Professionals' Perspectives
on Victims and Impact Statements, (unpublished manuscript on file with
author Dec. 16, 1998).
---------------------------------------------------------------------------
The objections against the Victims' Rights Amendment, often
advanced by attorneys, provide support for Erez's hypothesis. Many of
the complaints rest on little more than an appeal to retain a legal
tradition that excludes victims from participating in the process, to
in some sense leave it up to the ``professionals''--the judges,
prosecutors, and defense attorneys--to do justice as they see fit. Such
entreaties may sound attractive to members of the bar, who not only
have vested interests in maintaining their monopolistic control over
the criminal justice system but also have grown up without any exposure
to crime victims or their problems. The ``legal culture'' that Erez
accurately perceived is one that has not made room for crime victims.
Law students learn to ``think like a lawyer'' in classes such as
criminal law and criminal procedure, where victims' interests receive
no discussion. In the first year in criminal law, students learn in
excruciating detail to focus on the state of mind of a criminal
defendant, through intriguing questions about mens rea and the
like.\279\ In the second year, students may take a course on criminal
procedure, where defendants' and prosecutors' interests under the
constitutional doctrine governing search and seizure, confessions, and
right to counsel are the standard fare. Here, too, victims are absent.
The most popular criminal procedure casebook, for example, spans some
1692 pages; \280\ yet victims' rights' appear directly only in two
paragraphs, made necessary because in California a victims' rights
initiatives affected a defendant's right to exclude evidence.\281\
Finally, in their third year, students may take a clinical course in
the criminal justice process, where they may be assigned to assist
prosecutors or defense attorneys in actual criminal cases. Not only are
they never assigned to represent crime victims, but in courtrooms they
will see victims frequently absent, or participating only through
prosecutors or the judicial apparatus such as probation officers.
---------------------------------------------------------------------------
\279\ For a good example of the standard criminal law curriculum,
see Ronald N. Boyce & Rollin M. Perkins, Criminal Law and Procedure:
Cases and Materials (7th ed. 1989).
\280\ Yale Kamisar et al., Modern Criminal Procedure: Cases,
Comments and Questions (8th ed. 1994).
\281\ See id. at 60 (discussing Cal. Const., art. I, Sec. 28, the
``truth-in-evidence'' provision).
---------------------------------------------------------------------------
Given this socialization, it is no surprise to find that when those
lawyers leave law school they become part of a legal culture
unsympathetic, if not overtly hostile, to the interests of crime
victims.\282\ The legal insiders view with great suspicion demands from
the outsiders--the barbarians, if you will--to be admitted into the
process. A prime illustration comes from Justice Stevens' concluding
remarks in his dissenting opinion in Payne. He found it almost
threatening that the Court's decision admitting victim impact
statements would be ``greeted with enthusiasm by a large number of
concerned and thoughtful citizens.'' \283\ For Justice Stevens, the
Court's decision to structure this rule of law in a way consistent with
public opinion was ``a sad day for a great institution.'' \284\ To be
sure, the Court must not allow our rights to be swept away by popular
enthusiasm. But when the question before the Court is the separate and
ancillary one of whether to recognize rights for victims, one would
think that public consensus on the legitimacy of those rights would be
a virtue, not a vice. As Professor Gewirtz has thoughtfully concluded
after reviewing this same passage, ``The place of public opinion cannot
be dismissed so quickly, with `a sad day' proclaimed because a great
public institution may have tried to retain the confidence of its
public audience.'' \285\
---------------------------------------------------------------------------
\282\ One hopeful sign of impending change is the publication of an
excellent casebook addressing victims in criminal procedure. See
Beloof, supra note 89.
\283\ Payne, 501 U.S. at 867 (Stevens, J., dissenting).
\284\ Id. at 867 (Stevens, J., dissenting).
\285\ Gewirtz, supra note 76, at 893.
---------------------------------------------------------------------------
Justice Stevens' views were, on that day at least,\286\ in the
minority. But in countless other ways, his antipathy to recognizing
crime victims prevails in the day-to-day workings of our criminal
justice system. Fortunately, there is a way to change this hostility,
to require the actors in the process to recognize the interests of
victims of crime. As Thomas Jefferson once explained, ``Happily for us,
* * * when we find our constitutions defective and insufficient to
secure the happiness of our people, we can assemble with all the
coolness of philosophers, and set them to rights, while every other
nation on earth must have recourse to arms to amend or to restore their
constitutions.'' \287\ Our nation, through its assembled
representatives here in Congress and the state legislatures, should use
the recognized amending power to secure a place for victims' rights in
our Constitution. While conservatism is often a virtue, there comes a
time when the case for reform has been made. Today the criminal justice
system too often treats victims as second-class citizens, almost as
barbarians at the gates that must be repelled at all costs. The widely-
shared view is that this treatment is wrong, that victims have
legitimate concerns that can--indeed must--be fully respected for the
system to be fair and just. The Victims' Rights Amendment is an
indispensable step in that direction, extending protection for the
rights of victims while doing no harm to the rights of defendants and
of the public. The Amendment will not plunge the criminal justice
system into the dark ages, but will instead herald a new age of
enlightenment. It is time for the defenders of the old order to
recognize these facts, to help swing open the gates, and welcome
victims to their rightful place in our nation's criminal justice
system. Congress should approve the carefully crafted current version
of the Victims' Rights Amendment and send it on its way to the states
for ratification. Our criminal justice system already provides ample
rights for the accused and the guilty; it can--and should--do the same
for the innocent.
---------------------------------------------------------------------------
\286\ See, e.g., Booth v. Maryland, 482 U.S. 496 (1987) (rejecting
victim impact statements); South Carolina v. Gathers, 490 U.S. 805
(1989) (same).
\287\ Thomas Jefferson, Letter to C.W.F. Dumas, Sept. 1787, in John
P. Foley ed., The Jeffersonian Cyclopidia (1900).
---------------------------------------------------------------------------
Attachment A--Biography
I am a Professor of Law at the University of Utah College of Law,
where I teach victims rights and criminal procedure among other
subjects. I have written and lectured on the subjects of crime victims
rights. See, e.g., Paul G. Cassell, Balancing the Scales of Justice:
The Case for and the Effects of Utah's Victims' Rights Amendment, 1994
Utah L. Rev. 1373. I serve on the executive board of the National
Victim Constitutional Amendment Network, an organization devoted to
bringing constitutional protection to crime victims across the country.
I am also a member of the Utah Council on Victims, the statewide
organization in Utah responsible for monitoring the treatment of crime
victims in the courts of our state. In 1994, I was chair of the
Constitutional Amendment Subcommittee of the Council, where I helped to
draft and obtain passage of the Utah Victims Rights Amendment. I have
also represented crime victims in legal actions to enforce their
rights, including several actions on behalf of the victims of the
Oklahoma City bombing, as discussed in more detail in my testimony.
By way of further background, from 1988 to 1991, I served as an
Assistant United States Attorney in the Eastern District of Virginia,
where I was responsible for prosecuting federal criminal cases and
working with the victims in those cases. From 1986 to 1988, I served as
an Associate Deputy Attorney General at the United States Department of
Justice, handling various matters relating to criminal justice. I have
also served as a law clerk to then-Judge Antonin Scalia and Chief
Justice Warren E. Burger. I graduated from Stanford Law School in 1984,
after serving as President of the Stanford Law Review.
The Chairman. Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and I appreciate
the courtesy. I had wanted to hold off until after Prof.
Cassell had testified. When he was here last year--I think it
was his third appearance before the committee--I had asked him
whether he could identify any currently valid appellate
decisions anywhere in the country in which a victim's right
under a statute or a State constitutional amendment was ruled
invalid because of a defendant's right under the Federal
Constitution.
I believe the professor was working on book at that time
and would get back to us, but I notice he has not yet
identified one. And I hope when the question time comes, if
there has been even one anywhere in the 50 States or the
thousands of smaller jurisdictions, you would let us know
because it might give more weight to why we would have to make
a change.
I think proposals for amending the Constitution of the
United States are serious matters. I have often said that
declarations of war, the impeachment of the President, and
constitutional amendments are the most significant actions any
Senate can. I also believe strongly that victims of crime ought
to be treated with respect, and questions of crime victims'
rights ought to be treated with dignity.
When I was a prosecutor, long before it was a fad, we
insisted that victims be heard at sentencing and in plea
negotiations and everywhere else. We did this without a
constitutional mandate.
This hearing was originally going to be before the
Subcommittee on the Constitution. Then a couple of days ago, it
was moved to a hearing before the full committee. So it has
been a little bit difficult arranging some of the people who
might come here. Mr. Twist and Mr. Cassell have already
testified here, and I am sure that they will be adding to their
previous testimony. We did not get their written testimony
until yesterday afternoon, so it is hard to make that
comparison.
We are now in the third month, Mr. Chairman, of the 106th
Congress. There have been 30 proposals to amend the
Constitution already. That is more proposed amendments in 3
months than the country adopted in 200 years. My friend from
Arizona, I think, has introduced at least three constitutional
amendments and cosponsored a couple more.
One of the proposed amendments in the House is aimed at
easing the ability to amend the Constitution in the future. I
would like to enter into the record the guidelines developed by
Citizens for the Constitution for when and how the Constitution
should be amended. This is a non-partisan organization of
former public officials, constitutional scholars, and others.
And if that could be part of the record, Mr. Chairman?
The Chairman. Without objection.
[The information referred to is located in the appendix.]
Senator Leahy. They point out the fact that we ought to
have full consideration of all proposed amendments before votes
are taken either in committee or on the floor. I know that many
times--and I know the concern I have when I see actions in this
country, and you have the momentary passion that we amend the
Constitution. Usually, cooler heads prevail and we find a good
legislative way to do it, but that means full consideration on
two types of questions, policy questions, whether the idea is
sound; operational questions, whether there are problems with
the way it would work.
To date, we have only looked at the first question. Do we
really need a victims' rights amendment? That is an important
question. We should consider it. There are 32 States with
constitutional protection of crime victims' rights. And as I
said, I am not aware of any case that has been overturned on
this.
But then how would the amendment work in practice? I am
concerned that the proposed constitutional amendment could
impede the effective prosecution of violent crimes. I think Ms.
Wilkinson's testimony was very significant in that regard. She
is a former principal deputy chief of the Terrorism and Violent
Crime Section of the Criminal Division of the U.S. Department
of Justice.
I was one who watched very closely her work in the Oklahoma
City bombing case. In fact, I thought she was very much a
prosecutor's prosecutor in that, and I commend you and your
whole team for the work you did there. I think her testimony
about how the proposed amendment might have impaired the
prosecution of that case merits some very serious thinking.
We should also consider the views of the many crime
victims' rights groups that oppose the amendment. They were not
able to testify today, given the late notice and limited nature
of the hearing. But some did manage to write to the committee--
for example, the National Clearinghouse for the Defense of
Battered Women, the National Network to End Domestic Violence--
and I would ask that their letters and some others be also
placed in the record at this point.
The Chairman. Without objection.
[The letters referred to are located in the appendix.]
Senator Leahy. I should note the letter from Victims'
Services, the largest victim assistance agency in the country.
They serve over 200,000 crime victims every year. They don't
support a constitutional amendment. They urge us to take a
statutory approach.
I think that there should be some meaningful legislation,
and I think there can be. And knowing how State courts tend to
follow the procedure in the Federal system, I think that we
could have meaningful legislation. Senator Kennedy and I and
others introduced a bill that would have provided real relief
for victims immediately, real rights, and the resources to back
them up.
I know we have been busy, Mr. Chairman, but we haven't had
a minute to consider that legislative initiative in the past
year. And I know we probably will have more hearings on the
constitutional amendment, but I would hope that we might have a
hearing on the other because even if this Congress were to pass
a constitutional amendment on victims' rights, it still has to
go through all the other processes, whereas the statutory
provisions that we have talked about could be done immediately.
I would put my whole statement in the record. I don't want
to hold you up here.
The Chairman. We will put it in the record.
Senator Leahy. I appreciate your usual courtesy.
The Chairman. Thank you, Senator Leahy.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick Leahy
Proposals for amending the Constitution of the United States are
serious matters. I have often said that declarations of war, the
impeachment of the President and constitutional amendments are the most
significant actions any Senate can take. I also believe strongly that
victims of crime ought to be treated with respect and questions of
crime victims' rights ought to be treated with dignity.
This brief ``hearing'' was not noticed until the last possible
minute last week as a hearing before the Subcommittee on the
Constitution, Federalism, and Property Rights. On Friday, the majority
unilaterally chose to bypass the Subcommittee, in spite of its express
jurisdiction over constitutional amendments, and to redesignate this as
a ``hearing'' before the full Judiciary Committee.
The Committee is proceeding to hear again from two witnesses who
have already testified repeatedly on this issue. I will be interested
to hear what they have to add to their previous testimony. I understand
that their written testimony was not made available until yesterday
afternoon. This slapdash mini-hearing is no way to go about the serious
business of constitutional change.
As James Madison argued in Federalist 49, the ``constitutional
road'' to amendment should be ``marked out, and kept open,'' but only
``for certain great and extraordinary occasions.'' Whether this rush to
judgment can provide the type of record that would be needed to provide
the factual, policy and legal basis for the Senate to determine
whether, in the language of Article V of the Constitution, such a
constitutional amendment is ``necessary'' is extremely doubtful.
I am concerned that this Committee, and this Congress, is not
approaching the constitutional amendment process with anywhere near the
gravity it deserves. We are in only the third month of the 106th
Congress, and already there have been over 30 proposals to amend the
Constitution introduced in this Congress. That is more proposed
amendments in three months than this country has seen fit to adopt in
over 200 years. I see that Senator Kyl has introduced at least three
constitutional amendments and cosponsored two more. It is perhaps a
sign of the times that one of the proposed amendments in the House is
aimed at easing the requirements for future constitutional amendments.
I would like to enter into the record the guidelines developed by
Citizens for the Constitution for when and how the Constitution should
be amended. Citizens for the Constitution is a non-partisan
organization of former public officials, constitutional scholars, and
other prominent Americans who urge restraint in the consideration of
proposals to amend the Constitution. Its guidelines address the
problems Congress has often fallen into of moving popular amendments
with little hearing or debate, and more quickly than is prudent.
Citizens for the Constitution emphasizes the need for full
consideration of all proposed amendments before votes are taken either
in Committee or on the floor. That means full consideration of two
types of questions--policy questions, which include whether the basic
idea is sound, and operational questions, including whether there are
problems in the way that the amendment would work in practice.
To date, what modest work this Committee has done on this issue has
concentrated on the first question--do we really need a Victims' Rights
Amendment. That is an important question, and it is appropriate that we
consider it fully. There are now at least 32 States with constitutional
protections of crime victims, rights. That is three States more than
when this Committee last considered the proposed amendment. I asked
Professor Cassell last year, at his third appearance before this
Committee, whether he could identify any currently valid appellate
decisions anywhere in the country in which a victim's right under a
statute or State constitutional amendment was ruled invalid because of
a defendant's right under the federal Constitution; he did not identify
a single case.
I have expressed the view that Congress should not be rushing to
amend the Constitution to resolve problems that can and should be
addressed through other less drastic means. The progress on victims,
rights that is being achieved by the States, the good work that is
being done in prosecutors' offices across the country, the efforts
being made in State legislatures and at the ballot boxes ought not be
ignored.
As for the second question--how would the amendment work in
practice--this Committee has barely scratched the surface. As a former
prosecutor, I am particularly concerned with whether the proposed
constitutional amendment could impede the effective prosecution of
violent crimes. I am pleased that we have with us today Ms. Beth
Wilkinson, formerly the principal deputy chief of the Terrorism and
Violent Crimes Section of the Criminal Division of the United States
Department of Justice, and a lead prosecutor in the Oklahoma City
bombing case. Her testimony about how the proposed amendment might have
impaired the prosecution of that case merits serious attention.
We should also consider the views of the many crime-victims, rights
groups that oppose the amendment. They were not able to testify today
given the late notice and limited nature of this hearing, but some of
them did manage to write to the Committee about S.J. Res. 3--National
Clearinghouse for the Defense of Battered Women; National Network to
End Domestic Violence; and Victim Services. I ask that their letters be
included in the record.
I would also like to put in the record letters I recently received
from the Conference of Chief Justices, Professor Robert Mosteller of
Duke University Law School, and Professor Lynne Henderson of Indiana
Law School, all in opposition to the proposed amendment.
Special note should be made of the letter from Victim Services,
which is the largest victim assistance agency in the country. They
serve over 200,000 crime victims every year, and they say do not
support this constitutional amendment. They want crime victims, rights
as much as anybody, but they understand the dangers of monkeying around
with the United States Constitution. They urge us to consider a
statutory alternative.
I agree that crime victims deserve meaningful legislation. Last
Congress, Senator Kennedy and I introduced a bill that would have
provided real relief for victims--real rights and the resources to back
them up. Unfortunately, this Committee has devoted not a minute to
consideration of the legislative initiatives that Senator Kennedy and I
have introduced over the past years to assist crime victims and better
protect their rights. Like many other deserving initiatives, it has
taken a back seat to the constitutional amendment debate that
continues. I regret that we did not do more for victims last year or
the year before. Over the course of that time, I have noted my concern
that we not dissipate the progress we could be making by focusing
exclusively on efforts to amend the Constitution. Regretfully, I must
note that the pace of victims legislation has slowed noticeably and
many opportunities for progress have been squandered.
As Chairman Hatch noted in his additional views last year on the
proposed constitutional amendment, ordinary legislation could achieve
many of the objectives of the proposed amendment, without the peril of
upsetting the States' experimentation in this area. Last Friday
Chairman Hatch indicated in a press conference that he would be
introducing legislation to assist crime victims. I would welcome the
opportunity to work with the Chairman on legislation that would provide
needed relief to victims, and provide it now. I hope that this
Committee and the Congress will take a look at his proposals and those
that Senator Kennedy and I will be reintroducing and pass federal
legislation on these matters that can be enacted this year and
effective immediately.
With a simple majority of both Houses of Congress, the Crime
Victims Assistance Act could have been enacted last Congress. Its
provisions could be making a difference in the lives of crime victims
throughout the country without delay. There would be no need to achieve
super-majorities in both Houses of Congress, no need to await
ratification efforts among the States and no need to go through the
ensuing process of enacting implementing legislation.
The Chairman. Let me turn to you, Mr. Twist, first. In your
prepared testimony, you quote an Arizona case that states,
``The Supremacy Clause requires that the Due Process Clause of
the U.S. Constitution prevail over State constitutional
provisions.'' Now, which of the victims' rights provided by the
proposed amendment are not cognisable under the current due
process jurisprudence?
Mr. Twist. In that case, Mr. Chairman, the right implicated
was the State constitutional right not to be forced to submit
to a pretrial interrogation by the defendant or the defendant's
attorney. That same proposal is not offered in S.J. Res. 3
because that practice which was occurring in Arizona was such
an aberrant one which allowed defendants to force victims to go
through pretrial depositions or interviews.
And in that particular case, the rights at issue were the
State constitutional right of the victim to not be forced to an
interview and the due process right of the defendant to obtain
exculpatory information. And in the balance of those, the court
came to what I think is a sensible conclusion that when a State
constitutional right is balanced against Federal constitutional
right that the Federal constitutional right will be supreme.
The Chairman. But even so, could you list any rights that
would not be covered under the current due process law?
Mr. Twist. Any rights of a defendant that would not?
The Chairman. No; any rights of the victims.
Mr. Twist. I am sorry, Mr. Chairman. I am not following
your question.
The Chairman. Which of the victims' rights provided by the
proposed amendment are not cognisable under current due process
jurisprudence?
Mr. Twist. Well, to my knowledge, Mr. Chairman, there is no
case in the country that has found a constitutional right for a
victim under the 14th amendment to assert any of the specifics
that we have included in section 1 of the amendment.
The Chairman. OK. You have been a tireless advocate for
victims' rights in Arizona. I recognize that, and your State
constitution is a model of what concerned citizens can
accomplish for a good cause. Now, in your experience, what have
been the most important and the least important protections for
victims that the Arizona constitutional amendment provision has
provided?
Mr. Twist. Mr. Chairman, I think this is a question that
was put to me in written form during the last round of
hearings, and I believe my answer was it was very difficult to
pick out one or two that are more important than others. There
are so many different stories and so many different cases.
Certainly, the basic rights to notice and to presence and
the right to be heard at some critical stages are fundamental.
Are they more important than the right to a final conclusion
free from unreasonable delay? Not in some cases. In some cases,
that is critical. I think that the rights that we have listed
in section 1 of S.J. Res. 3 form the core values that victims
seek in their desire for justice in the system, and I think all
of them are important because of that.
The Chairman. That sums it up pretty well.
Professor Cassell, I believe that amending the Constitution
should be reserved for only the most serious problems which
cannot be resolved by legislation. Thus, I have led the fight
for the balanced budget amendment, the flag protection
amendment, that really cannot be solved by legislation. In
those cases--the Supreme Court cases in both of those instances
defining the parameters of legislation before we acted on the
amendments.
Now, in your prepared testimony you discuss the
difficulties encountered by the victims of the Oklahoma City
bombing case in the district court and in the Tenth Circuit
Court of Appeals. How have other courts, including the Supreme
Court, treated the existing victims' rights protections?
Mr. Cassell. Senator, the difficulty has been frankly
getting into court to be heard on many of these issues. The
Oklahoma City case that you mention is a prime example. There,
we had several Federal statutes passed; indeed, one of them
precisely on point to the issue that we sought to raise in
court. We assembled a legal team of myself and four experienced
lawyers from Wilmer, Cutler and Pickering. We had a local
counsel in Colorado assisting us, so we had six lawyers working
on this project.
The result was that we were not even able to be heard in
the Tenth Circuit on the merits of our claim. And that has been
a problem around the country in the cases that I have seen.
Victims simply lack standing to enforce these rights, to even
be heard. That is just one of the obstacles that victims face
today. As you know, victims are not entitled to counsel at
State expense. It is only in relatively unusual situations
where someone steps forward to take the matter on a pro bono
basis that they will even have counsel to move forward. Yet,
there are these standing problems and other problems. Senator
Leahy was referring to the appellate law jurisprudence. We
don't have appellate law jurisprudence on this at this point
because victims are simply not given their day in court.
The Chairman. In your prepared statement, you note the
existence of numerous State constitutional and statutory
protections for victims, but you conclude that these
protections are not solving the practical problems of victims.
How much of these practical problems are caused by a lack of
vigorous enforcement by State authorities and how much is
caused by specific Federal constitutional barriers to victims'
rights?
Mr. Cassell. I think it is a combination of a variety of
things. Part of it is lack of resources, but I think much of it
is simply a lack of education, a lack of awareness of victims'
rights. I gave some illustrations in the Oklahoma City case
where the Federal judge and even the Federal prosecutors were
apparently unaware of a number of provisions that existed for
Federal statutes.
And the way that this has to be overcome, then, is with
something that basically changes the ``zeitgeist'' in the
criminal justice process, that changes our feeling about the
importance of crime victims. The best way to do that is, of
course, with a Federal amendment that elevates the importance
of these rights and sends a clear signal to State actors, to
prosecutors, to judges, to defense attorneys, to all who are
involved in the process that victims' rights have to be
respected.
The Chairman. Now, it is not entirely clear what the phrase
``crime of violence'' actually means or covers. For example, if
a person commits treason by turning over information to a
foreign government and that foreign government uses the
information to uncover and kill American agents, would the
families of the victims be entitled to rights under this
amendment?
Mr. Cassell. Yes, Senator, in that situation there would be
identifiable victims. And let me just comment briefly. I think
this committee has pointed the way to defining the phrase
``crime of violence.'' As you know, I believe, Mr. Chairman,
you were involved in the efforts to pass the right for victims
of crimes of violence to make statements in Federal sentencing
hearings. I think we can use that same definition for the
Federal amendment.
The Chairman. Will this phrase cover attempted crimes or
conspiracy crimes when the underlying substantive offense is a
crime of violence?
Mr. Cassell. Yes. If somebody points a gun and shoots
someone, that is clearly a crime of violence. The mere fact
that the bullet misses the victim would not eliminate the
violent nature of the offense.
The Chairman. There are also other crimes in which notice
and restitution may be very important; for instance, defrauding
the elderly of their savings. Should the amendment exclude that
type of a crime?
Mr. Cassell. In my view, the amendment ought to cover that,
but I understand there is a need for consensus to focus the
amendment in on consensus points. So if consensus could be
achieved on that, absolutely, the reach should be expanded.
The Chairman. As an example of the complex issues raised by
this amendment, there is a question about when the rights
granted by this amendment vest in a victim. Often, a defendant
might be suspect in several similar crimes, but will not be
charged with all of them, for various legitimate prosecutorial
reasons. The committee in the past has wrestled with this very
issue during the adoption of the Mandatory Victim Restitution
Act.
Recognizing the need to provide restitution to all victims
while still cognizant of the very real constitutional dangers
of requiring restitution for conduct for which the defendant
has not been charged or convicted, the MVRA requires Federal
prosecutors to attempt to negotiate restitution for all victims
in any plea agreements.
Now, would the proposed amendment create a similar conflict
between the constitutional right of the victims of such
uncharged counts to a restitution order and the due process
rights of the defendant?
Mr. Cassell. I don't think there would be any conflict with
the rights of defendants. In fact, I think the victims' rights
would be treated in the same way as defendants' rights are
treated. Currently, as you know, defendants' rights attach once
formal criminal charges are filed in the process. The Federal
amendment would operate in the same way.
Once criminal charges are filed, then the victims of those
charged crimes would have rights. So victims in uncharged
crimes would not have the mandatory right to restitution. Now,
as you are suggesting, that raises some issues and I think the
way to address it is exactly the way that you, Mr. Chairman,
have worked on trying to address it by encouraging prosecutors
to reach plea agreements or to provide full charging of various
crimes. But there is not going to be a conflict with
defendants' rights because unless a charge is filed, victims'
rights do not attach.
The Chairman. One final question and then I will turn to
Senator Leahy. The proposed amendment requires that victims be
given notice of their constitutional rights. When will the
victims receive such notice? Would that be after arrest, after
charging, after bail? Also, who would be responsible for giving
the notice, the police, the prosecutor, the court, who?
Mr. Cassell. The notice would be given after charging. The
rights of the victim would attach in the same way as a
defendant's rights attach. So defendants get notice today of
when court hearings are scheduled. Those notices are given
after charges are filed against the defendant. The same thing
can be done for victims.
Now, who would provide notice? As you know, the amendment
provides for reasonable notice. It leaves the implementation to
be done by the various State agencies. My sense is that most
States will leave that duty with the prosecutors' offices.
However, there are varying local circumstances, and the
amendment is certainly written in flexible terms that would
allow various jurisdictions to structure notice in whichever
way they thought was reasonable.
The Chairman. You have been very helpful here.
I have some questions for you, Ms. Wilkinson, but I will
submit them because my time is up.
Can I just ask one question of Ms. Wilkinson?
Senator Leahy. Of course, of course.
The Chairman. Then I will turn to Senator Leahy. I think it
might be helpful just from the debate standpoint here so we can
understand, because you and Professor Cassell differ on some
matters.
You have heard Professor Cassell's comments on the Oklahoma
City bombing case. I would like to give you a chance to respond
to any of his comments, since you were there. And keep in mind,
I have deep respect for both of you. Professor Cassell is one
of the truly leading lights in criminal law in this country,
and you have done a terrific job as I have watched what you
have done in the past, not only on the Oklahoma City case, but
also at the Department of Justice.
So let me just ask you if you have any comments you would
care to make.
Ms. Wilkinson. Thank you, Mr. Chairman.
The Chairman. And then I will allow you to make final
comments.
Ms. Wilkinson. I would like to clarify two points. I
appreciate that. As you said, I was there everyday for about
2\1/2\ years, and I believe there are some representations that
are misleading about what did occur and there are three I would
like to clarify.
The first is Mr. Cassell stated that no one was permitted
to testify at Mr. McVeigh's sentencing. That is incorrect. As
you know, it is the jury in a death penalty case that
determines the defendant's sentencing, and that phase of the
trial is called the penalty phase. There were 37 witnesses,
including by and large almost all victim impact witnesses, who
testified during that phase of the trial.
So I believe the proceeding he is referring to is when the
judge imposed the sentencing, but that was a proceeding that is
just pro forma under the rules where the judge has no
discretion. He takes the sentence that the jury announced,
which was death for Mr. McVeigh, propounds it upon the
defendant. He doesn't hear from the defendant's witnesses or
from the government.
So I think it is very misleading if you are left with the
understanding that no one testified regarding Mr. McVeigh's
sentence. Thirty-seven people who I believe talked about the
loss of young children, about adults, a father who talked about
losing his grown daughter, and many other relationships that
were destroyed as a result of the Oklahoma City bombing were
discussed with the jury who had to make that life-and-death
decision.
The second issue I would like to clarify is about the
statute that you all passed that assisted us and permitted
victims to sit through the McVeigh trial. Mr. Cassell believes
that that did not work and that the court did not honor the
statute, and I respectfully disagree.
What happened in that case was once you all passed the
statute, the judge said that the victims could sit in, but they
may have to undergo a voir dire process to determine under rule
403 whether their testimony would have been impacted and could
be more prejudicial.
What we told the victims is not what you heard here today.
We told them that they could sit through the process and that
all they had to understand was that they would have to undergo
the voir dire by the judge. I am proud to report to you that
every single one of those witnesses who decided to sit through
the trial, including a woman named Diane Leonard who was
married to a Secret Service agent who had protected six
Presidents and died on April 19th, survived the voir dire, and
not only survived, but I think changed the judge's opinion on
the idea that any victim impact testimony would be changed by
sitting through the trial. So Ms. Leonard and the rest of the
witnesses underwent the voir dire and testified during the
penalty phase for Mr. McVeigh.
It worked in that case, but it worked even better in the
next case. Just 3 months later when we tried the case against
Terry Nichols, every single victim who wanted to watch the
trial either in Denver or through the closed-circuit television
proceedings that were provided also by statute by this
Congress, were permitted to sit and watch the trial and testify
against Mr. Nichols in the penalty phase.
That operated smoothly. The defendant had no objection, and
the judge allowed every one of those witnesses to testify
without even undergoing a voir dire process in the second
trial. I think that proves, Senator Hatch, your point, which is
you do not want to amend the Constitution if there are some
statutory alternatives. And I saw the Victim Rights
Clarification Act work. Within a year of passage, it had been
tried two times and I believe by the second time it had
operated smoothly and rectified an interest and a right that I
think the victims were entitled to that had not been recognized
until passage of that statute.
The third thing that I would like to clarify is that the
plea with Mr. Fortier was taken before Mr. McVeigh and Mr.
Nichols were even indicted. It was just less than 2 months
after the bombing when he pled guilty. That plea was public and
the public was notified. The victims were not organized either
through our victim witness unit, which recognized 2,500 victims
of this crime, or through their own organizations at that time.
So I think it is unfair to suggest that the prosecution team
did not sit down with all of the victims and explain the
consequences of the plea.
We had a limited ability to do that, due to our duty under
the grand jury secrecy rules to keep the information that we
were collecting in the grand jury secret and not to disclose it
to anyone, unfortunately, including victims. And that is
something, regardless of whether you pass this constitutional
amendment or not, we will be stuck with. The prosecutors will
still during the investigatory stage of a case be precluded
from revealing any grand jury material to victims or anyone
else in the public.
The Chairman. Professor Cassell.
Mr. Cassell. Let me talk about each of those three
situations because I think that there are perhaps a few points
that ought to be clarified.
First of all, with respect to whether anyone was permitted
to testify at the sentencing of Timothy McVeigh, the proceeding
in question was the point at which the judge actually imposed
sentence. And as you know, Congress has passed a law requiring
the judge not only to address the defendant at that point--and
Judge Matsch addressed Timothy McVeigh--but also to address the
victims. The judge did not do that, and as a result a number of
victims were denied any opportunity to speak when Timothy
McVeigh was sentenced.
This was not a pro forma matter, as Ms. Wilkinson has
suggested, for such victims as Marsha Kight, who is seated here
today. She forever lost the opportunity to tell the world and
to tell Timothy McVeigh what that crime did to her and her
family. And so to suggest that this is some pro forma
opportunity that, well, we should go on with business as usual,
I think, frankly is unfair to the victims that were denied that
right. And I feel very strongly about that.
Also, I should point out that this pro forma hearing ended
up making a mistake, a very serious mistake potentially. The
hearing did not follow Federal law in requiring that a
restitution order be imposed against Timothy McVeigh. That is
part of the Mandatory Victim Restitution Act that Senator Hatch
and a number of other members of this committee worked on that
required restitution be imposed. Yet, as a result of an
apparent oversight by the Department of Justice and perhaps the
court, no restitution order was entered.
Now, perhaps Timothy McVeigh will never have any money and
so this will be a moot point. But it is also possible that
tomorrow ``Hard Copy'' or some other scurrilous publication
might come along and offer him money if he would tell his
story. If that were to be the case, it will then be very
difficult to get the restitution back to the victims where it
ought to go. So those are some points about the McVeigh
sentencing.
The second issue is what about whether victims were denied
the opportunity to watch the trial of McVeigh and Nichols' case
after the passage of the Victims' Rights Clarification Act of
1997. I think here we really ought to go to the victims and ask
them, what were the prosecutors telling you at that time?
I talked to Marsha Kight and a number of the other people
that were involved and we were getting reports that the
prosecutors were saying, well, you know, if you go in there,
there are certainly going to be some questions that will be
asked. So it is up to you, but you will avoid an appellate
issue if you don't go into the trial.
The fact of the matter is that after receiving that advice,
some victims did not exercise their congressionally-protected
right to watch the trial of Timothy McVeigh. So to say that the
statute worked simply does not recognize the reality that some
victims were denied the opportunity to see the McVeigh trial.
And the last point that was discussed was this issue about
the plea agreement with Mr. Fortier. My suggestion is that the
Department should have sat down with all the victims at the
time and said, look, we are preparing to enter into a plea;
here is how we want to do that. They did that later on in the
process with great success. However, they didn't do this with
the Fortier plea, and I think that was a mistake.
Now, I realize there are grand jury secrecy rules. But as
you well know, the grand jury secrecy rules only cover
materials and proceedings that are happening within the grand
jury. There was a vast collection of materials that was outside
of grand jury secrecy rules. Certainly, that could have been
disclosed to the victims and it could have been made clear why
the plea agreement with Mr. Fortier was necessary.
Even if it was necessary to go into grand jury secrecy--and
I don't think it was, but even if it was necessary, rule 6(e)
of the Federal Rules of Criminal Procedure authorizes the
Department of Justice to seek a court order to release the
information. And yet it never occurred to the Department and
the prosecutors to think about trying to get that court
authorization to release information and to talk to Marsha
Kight and the other victims.
That is the kind of mind set that the victims' rights
amendment will change. It will bring victims into the process,
and I think it will make the system work better not just from a
victims' point of view but also from a law enforcement point of
view.
The Chairman. Thank you.
We will turn to the ranking member, Senator Leahy.
Senator Leahy. Thank you.
The Chairman. Senator Kyl, I am going to ask you to preside
from here on in.
Senator Leahy. Mr. Chairman, I might say I have a much
higher opinion of the work law enforcement did in both of these
cases than I believe Mr. Cassell does. I realize he advocates
from a position there, but I think that the law enforcement
people--both the investigators and the prosecutors--did a
superb job.
In the McVeigh case, victims were allowed to speak at the
sentencing phase before the jury and elsewhere. I am not sure,
if they were to come in and speak again, whether Mr. McVeigh--
what greater penalty he might have received than the death
penalty. That is something that can be argued, but frankly I
for one feel in a very terrible situation that the prosecutors
and law enforcement did a very good job.
I cannot even begin to imagine how hard it was for the
family members and loved ones of those who were killed. I know
how shocked all the rest of us were who were not related to the
people killed. But I am not sure that some of the efforts to
second-guess law enforcement and prosecutors on this helps a
great deal.
Mr. Twist, in Romley v. Superior Court, from the Arizona
Court of Appeals in 1992, the defendant, Anne Roper, was
charged with stabbing her husband. She claimed that she had
been the victim of horrendous emotional and physical abuse by
her husband during their marriage, that the husband was a
violent and psychotic individual who had been treated for
multiple-personality disorder for over a decade, that he was
manifesting one of his violent personalities at the time of the
assault, and that she had acted in self-defense.
It was undisputed as I read the case that the husband was
mentally ill, that he had three prior arrests and one
conviction for domestic violence toward the defendant, and that
the defendant, Anne Roper, not the husband, the victim of the
stabbing, as he made out to be--the defendant made the 911 call
to the police, asking for help because her husband was beating
her and threatening her with a knife. I know you are familiar
with this case, but for those who are not, I wanted to go
through it.
Under these circumstances, the Arizona Court of Appeals
came to what I believe is a very sensible conclusion that the
defendant's due process rights superseded the State law right
of the husband victim, as he was claiming to be, having been
stabbed, to disclose his medical records.
Now, do you agree that Romley v. Superior Court was
correctly decided in Arizona, one, as a matter of policy and,
two, as a matter of constitutional interpretation?
Mr. Twist. Yes, to both questions, Senator.
Senator Leahy. You do not see any other way the court could
have, or should have balanced the competing interests of the
defendant and her, in this case, victim?
Mr. Twist. I think the court came to the right conclusion,
and I think it is an example of how courts properly can balance
rights in conflict and reach appropriate conclusions. And if
S.J. Res. 3 were the law, I would not expect the conclusion to
be any different.
Senator Leahy. You don't think S.J. Res. 3 would have
affected the court's holding in any way?
Mr. Twist. No, sir.
Senator Leahy. And there is no necessity to change any of
the wording of S.J. Res. 3 as it now is to make sure that they
would not override Arizona?
Mr. Twist. Senator, I cannot think of an area where we
would have to do that. If someone were to make the case, as
always we would be happy to look at it. But I think, in fact,
that the result would be the same if S.J. Res. 3 were the law.
And, indeed, the exceptions clause of section 3 of S.J. Res. 3
allows this Congress more latitude to craft appropriate
exceptions for exactly these kinds of cases.
Senator Leahy. Mr. Cassell, as I understand it, you have
argued that the court in the Oklahoma City bombing trials
ignored the Victim Rights Clarification Act of 1997 in
excluding victims who could be called to testify at sentencing,
something we have discussed here this morning. Judge Matsch
read that Act as reversing the presumption of a prejudicial
effect on victim impact testimony of observation of the trial
proceedings.
He permitted victims to observe the trial proceedings. He
later made individual determinations of which victims, having
sat through the trial, could not give fair testimony at the
capital sentencing hearing. And then as I recall, once he did
that, not one victim was prevented from testifying at
sentencing on the ground that he or she had observed part of
the trial.
Would the proposed constitutional amendment require that
all those victims be allowed to testify across the board
regardless of their individual ability to testify fairly,
regardless of what a court might find?
Mr. Cassell. Well, there are a couple of different things
in your question, Senator. First of all, with respect to
whether Judge Matsch ignored the law, I think I gave more
nuanced presentation as to precisely what happened and I will
just rest on my prepared----
Senator Leahy. Your presentation is in the record and we
will rely on that, but on my question, would the proposed
constitutional amendment require that all victims be allowed to
testify across the board even if a judge were to find that they
could not testify fairly?
Mr. Cassell. It depends on what you mean by ``not testify
fairly,'' I suppose. The victims' rights amendment would
establish a right for all victims to be heard at sentencing.
When you say ``not testify fairly,'' I would assume you are
referring to a situation where the victim's testimony might
somehow unfairly affect the jury.
It seems to me in those situations--and we are talking in
hypotheticals now; if we had a tangible example, we could play
with that. But hypothetically, in that situation it seems to me
the court could well do a couple of things. First of all, the
court could limit what that victim would testify to. Typically,
of course, it is not the mere fact of testifying that is
prejudicial; it is some particular aspect of the testimony.
Senator Leahy. Is there anything in the amendment--then
what does the amendment provide that the Victims' Rights
Clarification Act does not provide?
Mr. Cassell. It provides--one thing, for example, is this
clear standing to enforce the rights. One of the difficulties
that we had even when we went back to Judge Matsch is we were
never allowed to appear in front of them. We were filing these
motions and they were sometimes ruled on; sometimes they were
deferred, sometimes postponed.
The victims' rights amendment would have given us standing.
So as a lawyer for Marsha Kight and the other victims, I would
have had a right to say, judge, I would like a hearing on this;
here is our motion, here is our reason for being heard. We
never got past first base on many of these issues, which is why
we had such great difficulty in getting those rights protected.
Senator Leahy. But the victims did testify. The victims
were able to observe the trial. The victims did testify. Mr.
McVeigh was given the death penalty, but you feel more could
have been done?
Mr. Cassell. The difficulty is that some of the victims
were not able to watch the McVeigh trial because of the legal
uncertainties that were swirling around their status. The
victims' rights amendment, had it been in place, would have
ended all of those uncertainties and spoken in no uncertain
terms and told all of the victims that they had an unequivocal
right to watch the trial.
Senator Leahy. Well, let's speak of the unequivocal rights
that come under the Constitution. You seem to take--and I don't
want to put words in your mouth, but the constitutional
approach here is preferable to a statutory approach?
Mr. Cassell. Yes.
Senator Leahy. But in United States v. Dickerson, you
seemed to prefer the flexibility of a statutory solution, and
let me tell you how I interpret that in implementing Fifth
Amendment rights. In that case, you argued that a voluntary
confession should be admissible in a criminal case irrespective
of whether it was obtained in violation of Miranda. Then you
said in an interview, ``Dickerson really highlights this issue
whether the Miranda rights are constitutional rights or whether
they are just prophylactic safeguards, and that ends up making
a big difference. If they are constitutional rights, then they
are essentially set in stone and it is very difficult to change
them. On the other hand, if they are mere evidentiary
safeguards, then Congress can tinker with them or replace them.
And so that is the question. Are we locked into this one
approach with the Constitution or is there some play in the
joints?''
Now, I understand your appreciation of flexibility when it
comes to defendants' rights. Why is it necessary then to lock
the country into one constitutional approach regarding victims'
rights? Couldn't Federal legislation and State amendments give
exactly the same type of play in the joints that you have
talked about, or do we need to override the States with a
constitutional amendment?
Mr. Cassell. This case you are talking about, United States
v. Dickerson, would be entirely unaffected by the victims'
rights amendment.
Senator Leahy. No, no, no. I understand that. What I am
saying, though, there when we talked about what is seen as a
constitutional right under Miranda, you said this should be
more flexible. And you argued there that the statutory ability
gives you more flexibility than locking something into a
constitutional right. I understand your feeling about that when
we are talking about defendants' rights.
Should we not have the same test of the same kind of
flexibility when we are talking about victims' rights?
Mr. Cassell. What we should do, Senator--I have said that
the Fifth Amendment rights of defendants should be fully
protected. The victims' rights amendment would fully protect
the rights of crime victims as well.
One other just brief point about the Dickerson case. Again,
this is an entirely separate matter. My arguments in that case
on behalf of the clients there have been to support what this
committee did. As you know, the Senate Judiciary Committee
passed a statute, and I have simply been defending the work of
this committee and that is really all that is involved in that
case.
Senator Leahy. We love defenders anywhere we can get them.
Mr. Cassell. Well, unfortunately, I have had to step up to
the plate where the current Department of Justice is not
willing to do so.
Senator Leahy. You have been here three or four times. I
have more questions, but I am told by Senator Kyl that some of
the other Senators have scheduling difficulties. So I will
yield back the----
Senator Kyl [presiding]. Well, we can get back to you.
Senator Leahy. No. That is all right. I will yield back the
time, but I will put other questions in the record.
[The questions of Senator Leahy are located in the
appendix.]
Senator Kyl. Great. OK, thank you.
Both Senator Ashcroft and Senator Feingold are going to
have to leave. I know Senator Ashcroft has to be on the floor
by 11:30, so let me call upon you, Senator Ashcroft, and then
Senator Feingold, and Senator Feinstein and I. If that is all
right with you, Senator Feinstein, we can defer.
Senator Feinstein. Fine.
Senator Kyl. In any event, we have the chairman and the
ranking member of the subcommittee, and so I think it is
appropriate that they proceed.
Senator Ashcroft.
STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator Ashcroft. Well, thank you, and good morning. I want
to thank Chairman Hatch for holding the hearing. And, of
course, I want to thank Senators Kyl and Feinstein for their
work on this proposed constitutional amendment. I appreciate
it.
I have long been a supporter of recognizing the rights of
victims of crime. We must never forget that the best protection
for crime victims is effective law enforcement, but we do need
to do more than strive to enforce the laws with vigor. The
criminal justice system must act with greater compassion for
victims, with a sensitivity to the suffering that is inflicted
by murderers, rapists and other criminals.
For too long, victims were forgotten in the criminal
justice system. As the Warren Court expanded the rights of
criminal defendants well beyond their original scope, the
rights of victims were ignored. In the name of promoting
individual rights, the Warren Court sided with criminal
defendants over State prosecutors, while the individual rights
of victims were not part of the Court's calculus.
As a consequence, movements started in many States to
guarantee victims of crime a place at the table. Victims were
afforded the essential components of due process--notice of
proceedings affecting them and an opportunity to be heard. I
supported this process in Missouri. Indeed, when I was Governor
of Missouri, the State enacted its own constitutional amendment
protecting victims of crime.
Unfortunately, these State efforts, while an important step
in the right direction, have failed to provide sufficient
protection for crime victims. When the Federal constitutional
rights created for criminal defendants clash with the statutory
or State constitutional rights of victims, the Supremacy Clause
dictates that the criminal defendant's rights must prevail. The
only way to ensure that the victims stand on equal footing with
those who perpetrate the crimes is equally to enshrine their
rights in the Constitution. The proposed amendment we are
considering today does just that.
Although I am generally supportive of protecting victims'
rights, I have two concerns about this proposed amendment that
I would like to explore at today's hearing. First, I am
concerned that the proposed amendment does not expressly
provide any rights to the victim when a State official commutes
or pardons the sentence of a convicted criminal.
The amendment provides victims with the right to notice
and, where appropriate, an opportunity to be heard at every
other critical stage in the process, from trial to
incarceration to release. It provides rights to victims when a
court imposes a sentence and the parole board reviews the
sentence, but it denies victims any rights when an executive
considers overturning a sentence with a stroke of his pen.
Victims of crime deserve more compassion from our system of
justice. The emotional impact on a victim's family of the
commutation or pardon of a cold-blooded killer is at least as
distressing as an early release by a parole board.
A recent commutation in Missouri should make all Senators
sensitive to the suffering that a commutation can cause to a
family already scarred by violent crime. In this case, the
family experienced the horror of having three family members
murdered--one, a handicapped teenager. After shooting all three
of them, the killer then shot each of them once more in the
head at point-blank range. As the Missouri Supreme Court
observed, the killer was, ``a cold, calculating, highly
motivated assassin who planned and executed three murders, with
chilling attention to the details of ensuring the death of his
victims.''
After the family suffered through the stress of a capital
murder trial for their paraplegic son's brutal slaying, the
killer was sentenced to death by a Missouri jury. Years passed
as the family waited for the killer to be executed. No credible
evidence disputed the jury's careful judgment based on the
killer's confession, but just days before the sentence was to
be carried out, without notice, without opportunity to comment,
the death sentence of the confessed triple murderer was
commuted.
Family members did not get a phone call, even a letter.
They learned of the decision on the news. That is just wrong,
and it violates our basic sense of decency, fairness and
compassion. Should the Constitution be amended to guarantee a
right to be present at sentencing if the State retains the
right to revise that sentence through a commutation with no
notice to the victims? Throughout the entire process, our
system of justice should care about victims' suffering, not
cause more pain. This committee should show compassion and
protect victims from sentence commutations or pardons without
notice.
The second concern I have about the constitutional
amendment is that it limits its protections to the victims of
violent crime. We know that violent crimes certainly are
serious, but victims of non-violent crimes are no less
deserving of protection. The courts certainly did not
distinguish between violent and non-violent crime in creating
constitutional rights for criminal defendants.
There does not seem to be any better basis for making such
a distinction in protecting the rights of victims. Indeed, the
victims of some non-violent crimes, such as fraud, where
criminals carefully select their victims to prey on the elderly
or the ailing, are perhaps the most deserving of protection.
Victims of elder fraud and identity theft should be protected.
There are few government functions that are more important
than the protection of crime victims. The proposed
constitutional amendment makes important strides to guarantee
victims a seat at the table to ensure that the rights of
criminal defendants are not the only individual rights
considered by judges and parole officers and executives. The
current draft falls short of the full measure of protection
that I believe crime victims deserve, and I hope that today's
hearing will provide a basis for amendments that can move
forward to protect crime victims, whether they be violent or
non-violent crime victims, and whether they are to be protected
from arbitrary actions by the court or by the executive.
If I might, may I have just one question?
Senator Kyl. Certainly.
Senator Ashcroft. I would address it to Professor Cassell.
Do you think that the emotional effect of a parole board's
early release of a convicted criminal, or pardon thereof, is
substantially different than the emotional effect of a
commutation or a pardon of the same criminal by an executive?
Mr. Cassell. I think from a victim's point of view, you are
essentially looking at very equivalent actions that can have
devastating effects on crime victims. And it is very important,
as I think your remarks were suggesting, to have victims
involved in the process. Now, that is not to say that the
victims can order the governor what to do, but it is to say
that the governor ought to certainly listen to victims,
consider their point of view in reaching a careful, measured,
considered judgment, and not act precipitously without at least
getting some suggestions or advice, just basically input from
the victims in the process.
Senator Ashcroft. Thank you, and I thank the chairman.
Senator Kyl. Thank you. Let me just ask the other two
witnesses, and I recognize that Ms. Wilkinson may not support
the amendment, but in the abstract, would you both agree with
Senator Ashcroft and Mr. Cassell on this point regarding
commutation?
Mr. Twist. Yes, Mr. Chairman. It is not immediately obvious
looking at the language that it extends to the problem that the
Senator has raised, and I think he is wise to raise it because
the emotional harm, not to say the possibility of future
physical harm, is indistinguishable. And so I think we look
forward to the chance to work with Senator Ashcroft to fashion
appropriate language to deal with this.
Senator Kyl. Thank you. Ms. Wilkinson.
Ms. Wilkinson. Yes. I agree with Senator Ashcroft, also,
and I believe his second point about limiting these proposed
constitutional rights to the victims of violent crimes is a
mistake, in that I have prosecuted myself many of these fraud
cases where the victims are not only elderly, but mentally
handicapped, and those were some of the most difficult cases
that I ever saw. And I believe those victims deserve the same
type of protections you all are discussing today, as well as
the victims of violent crimes.
Senator Kyl. Thank you very much. I will turn to Senator
Feingold now, but let me just reiterate what I think Professor
Cassell said before, in that, when this amendment was first
drafted, we did include all crime. Out of a sense of necessity
to gain support from other members sufficient to pass the
amendment, we agreed to a compromise to limit it to violent
crime. That is to say, we, Senator Feinstein and I.
But I think any effort to broaden that would certainly not
be inappropriate. And I share my agreement with you and I
appreciate your bringing this matter of commutation to our
attention, Senator Ashcroft.
Now, Senator Feingold, I know you have to run, too, so
please go ahead.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I need to be
somewhere by 11:30 and it is 11:30, so I will keep it extremely
short. Let me ask that my full statement be included in the
record.
Let me compliment you and Senator Feinstein for your
leadership on this issue. I voted for Wisconsin's
constitutional amendment on victims' rights when I was a State
senator and thought that was an appropriate place for that. But
I do hesitate with regard to a constitutional amendment to the
U.S. Constitution both because of the tremendous proliferation
of these proposed constitutional amendments in general which
Senator Leahy outlined--there is far too much of that going on.
I will be candid with you. This is certainly not the worst of
the bunch. This one at least relates to a difficult problem and
interesting question of whether we should really change the
U.S. Constitution to deal with this. But given the serious
concerns about victims' rights, I think it is properly before
the committee.
The other reason that I certainly am not convinced yet is
the potential adequacy of statutory alternatives, both ones
that have already passed and ones that have been proposed in
this committee. So I will do the best I can to keep an open
mind about many aspects of it, but at this point I still am not
persuaded that it is worth changing the Constitution, the basic
structure of individual rights and criminal defendants' rights,
in order to do this.
Let me just ask one question because that is all the time I
have. One of the key provisions of the proposed constitutional
amendment is to provide crime victims with the right to attend
proceedings and to be heard at those proceedings.
In Payne v. Tennessee, however, the Supreme Court held that
victims have a right to be present and testify at the
sentencing phase of a trial, even a capital case. The only
exception to this rule occurs when the victim's presence would
result in a constitutional unfairness to the accused on trial.
With respect to this particular part of the proposed
amendment, and given the Court's decision in Payne, isn't
establishing a constitutional right for victims only necessary
if it is intended to create an absolute right that would be
used to overcome a constitutional right currently afforded
defendants?
And that is just another way of my asking you why do you
oppose adding a provision to the amendment, such as the one
that is contained in the Wisconsin constitutional amendment
that I supported that makes it clear that the amendment is not
intended to, and should not be interpreted to limit the rights
of those accused of crimes.
I would ask each of you to respond, if you could. Professor
Cassell.
Mr. Cassell. The result in Payne you referred to, of
course, came on the heels of two defeats for the victims
movement in the Supreme Court. There were two earlier cases,
the Booth case and the Gathers case, in which precisely the
argument that prevailed in Payne had been rejected. In those
two earlier cases, the Supreme Court had denied a victim an
opportunity to provide an impact statement at sentencing.
So the reason for the amendment is to make sure that the
Payne result stays in place; that is, to make sure that the
Supreme Court down the road doesn't get a few more members that
see things differently and end up going back to that other rule
of denying victims an opportunity to be heard.
In my testimony last year, I gave some proposed language if
that were thought to be necessary. But, frankly, I don't think
any such language is necessary. The opponents of the amendment
have not provided specific examples, in my mind, to illustrate
where there would be a conflict between victims' rights and
defendants' rights. We can do both. We can have victims' rights
and defendants' rights. This victims' rights amendment has been
very carefully drafted. I know Professor Laurence Tribe at
Harvard and Senator Biden and others who have been very
solicitous of defendants' rights have looked at this and don't
see the potential for conflict.
Senator Feingold. Mr. Twist.
Mr. Twist. Mr. Chairman and Senator Feingold, I think it is
important to focus on a slightly different aspect of your
question, and it is made real for us today because of Marsha
Kight's presence in the hearing room. In her situation, she was
not afforded an opportunity to be heard at sentencing because
of her personal opposition to the death penalty.
And this is an example, I think, of an often overlooked
point in the argument for victims' rights that these are rights
that exist and ought to exist independent of the government's
prosecution of the case at these critical stages, so that if
the victim chooses to assert a right to be heard at sentencing
and offer her own--in Marsha's case, her own heartfelt view,
she ought to be afforded that opportunity as a matter of
constitutional right regardless of what the outcome is. And I
think that it is important to focus on that aspect as well.
Senator Feingold. Ms. Wilkinson.
Ms. Wilkinson. I believe, Senator Feingold, that that would
be a worthy addition to the amendment, and that is because of
really the continuum of rights that we talk about. I think
there is a mistake when we use the term the criminal's rights
versus the victim's rights. As we all know, these defendants
are presumed innocent in our system until they are convicted,
and so the rights are weighed differently during the pre-trial
and trial process.
However, once a defendant is convicted, I believe that is
when most of the victim's substantive rights kick in, where
they are allowed to speak at the sentencing and talk to the
judge or the jury about the appropriate sentencing. And so I
believe if you added that provision to the amendment, it would
allow courts to do that balancing test and determine at what
point in the process those rights must be recognized.
That is not to say that victims don't have rights during
the pre-trial phase and the trial, but many of those even
described in the current proposed amendment are procedural to
have notice, to be present at those proceedings, and I believe
those rights should be protected. But they must be balanced
against a defendant's rights while the defendant is still a
defendant and not a convicted criminal.
Senator Feingold. Thank you very much, and thank you for
your courtesy, Mr. Chairman.
Senator Kyl. You are very welcome.
[The prepared statement of Senator Feingold follows:]
Prepared Statement of Hon. Russell D. Feingold
Thank you, Mr. Chairman, for holding this hearing. I want to
commend Senators Feinstein and Kyl for their dedication to this
important issue of protecting crime victims' rights.
I want to make it clear, Mr. Chairman, that I share the sponsors'
concern for the victims of crime. I share their desire to make sure
that those in our society who most directly feel the pain callously
inflicted by criminals do not suffer yet again at the hands of a
criminal justice system that ignores victims. A victim of a particular
crime has a personal interest in the prosecution of the alleged
offender. Victims want their voices to be heard. They want and deserve
to participate in the system that is designed to redress the wrongs
that they--and society--have suffered at the hands of criminals. That
is why I voted for a crime victims amendment to the Wisconsin state
constitution in 1991 when I was a member of the Wisconsin state senate.
But there are strong differences of opinion as to how victims
rights should be protected. And I approach any effort to amend the
United States Constitution with great trepidation. In the 207 year
history of the U.S. Constitution, only 27 amendments have been
ratified--just 17 since the Bill of Rights was ratified in 1791. Yet,
nine proposed amendments to the Constitution received a hearing or
floor consideration in the 104th Congress and nine were also considered
in the 105th Congress. Literally hundreds of constitutional amendments
have been introduced in the past few Congresses. So far, in just the
first few months of this 106th Congress, 10 constitutional amendments
have been introduced. Twenty-nine constitutional amendments have
already been introduced in the House.
I view this as a very disturbing trend. Frankly, I doubt it can be
stopped. It is awfully easy to score political points by drafting a
constitutional amendment and introducing it with a passionate speech.
But I think it trivializes the great and historic governing document of
our democratic system when we so easily turn to the amendment process
to address contemporary and often transient policy problems. I have
enormous respect for the Constitution. I certainly do not believe we
should amend if there are other means by which we can achieve our
goals.
These concerns are especially important in the case of this
particular proposed amendment. Issues related to crime are primarily
the province of state and local governments. Twenty-nine states have
passed victims' rights amendments and every state has enacted statutes
protecting victims. I know that there is some disagreement on this, but
I think the majority of these amendments and statutes, like the
Wisconsin state constitutional amendment for which I voted, are
functioning as effective tools to protect victims.
In addition, we have not yet tried a thorough federal statutory
approach to protecting victims' rights. For instance, during the last
Congress, Senators Leahy and Kennedy introduced S. 1081, a bill which I
cosponsored, that would be more effective than the proposed amendment.
That bill contained specific language and authorized funds that would
provide crime victims with rights that could effectively be enforced by
federal, state, and local officials. I simply do not believe it is
necessary to turn to a constitutional amendment when we have not yet
tried to address the problems with a workable and enforceable statute.
A statutory approach to these issues has one distinct advantage: It
would not present the potential of expanding victims rights at the
expense of narrowing the rights of other citizens, including criminal
defendants, which this constitutional amendment plainly does. Professor
Mosteller of Duke gave us one excellent example when he testified last
year, which I think is worth repeating. He described an Oregon statute
that requires pretrial detention of anyone arrested for a crime for
which there is a mandatory minimum sentence, unless the person arrested
can prove by clear and convincing evidence that he or she will not
commit another crime while on pretrial release. That statute obviously
presents serious due process problems before any court, but a
constitutional amendment that guarantees ``consideration for the safety
of the victim in determining any conditional release from custody''
would almost certainly change the constitutional analysis of that
statute. It might actually narrow the right to due process of law in
criminal cases.
Some people believe that our Constitution provides too many rights
to criminal defendants. I don't share that view, but I know it exists.
If there are particular provisions or court decisions that seem to go
too far in defining the rights of defendants, then perhaps we should
debate measures designed to narrow the courts' understanding of those
guarantees. But an amendment to protect victims' rights should not
provide a ``backdoor'' route to narrowing the rights that all citizens
may exercise if they are charged with a crime. I do not understand why
proponents of this amendment are unwilling to assure that the rights of
victims that they wish to enshrine in the Constitution do not lessen
the precious rights that the Constitution already guarantees to other
citizens.
In conclusion, I want to state again: All of us on this Committee
support victims' rights and understand that these rights must be
protected. But because of my great respect for the Constitution, I
cannot support this amendment so long as the normal legislative process
offers significant promise as a means to address the rights of victims.
I therefore urge my colleagues to consider other alternatives before
amending the Constitution.
Senator Kyl. Well, Senator Feinstein, it is left to you and
me. Why don't I call upon you, since you have been so
supportive and so important to getting this where we are? I
guess I would just note that as I think you pointed out before,
this is the fourth hearing that has been held before the full
Judiciary Committee on this constitutional amendment. By my
count, we have had 31 witnesses so far and 62 drafts of the
proposed amendment. As a result, we have significant bipartisan
support for it.
And I know that victims may be wondering why it takes so
long, but I am sure they also appreciate that amending the
Constitution is a very serious proposition. We want to make
sure we are doing it right. I can only hope that as a result of
this hearing today, we will very soon get to a markup so that
we can then pass out the amendment and have it considered on
the floor of the full Senate. That is our goal. We even have
kind of a secret goal to have that done during National Crime
Victims' Rights Week. That is a fairly ambitious goal, but we
will at least work toward it.
Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Well, thank you very much, Mr. Chairman,
and I want you to know what a pleasure it has been for me to
work with you these past 3 years on our 60-plus drafts.
Let me just begin by thanking Professor Cassell and Mr.
Twist. There are few people, I think, in this Nation that take
the time and that have the energy and talent that the two of
you have to really devote themselves to improving the rights of
victims. And I want you both to know how much it means, I
think, both to Senator Kyl and to myself. You have been with us
every step of the way through what has been a very difficult
process, and I want to just extend to you my heartfelt thanks.
Mr. Twist. Thank you.
Senator Feinstein. Mr. Chairman, I would also like to
acknowledge the fact that in addition to Ms. Kight, there are
other victims present here in the audience today--Marlene Young
and John Stein, sitting in the second row, representing the
National Organization for Victims Assistance, and Roberta
Roper, sitting in the first row, representing the Stephanie
Roper Committee. They have been with us every step of the way
as well and I want them to know how much your support and
looking out and seeing your faces present here today mean to
both of us. We hope to prevail in this and if we do, it will be
because of the support of victims.
Mr. Chairman, you mentioned that this is the third hearing.
I also want to point out that the amendment was actively
considered and debated at no less than five markups, and
several members of the committee even remarked, I think, at the
end of some of those markups what a good discussion we had.
Then the amendment was passed and voted out on a bipartisan
vote of 11 to 6. Unfortunately, the action came too late in the
last session to allow time for the amendment to be considered
on the floor.
So I just want to reiterate your statement that we would
hope that we could have a markup very shortly, and that we
would hope that the amendment could be on the floor during
National Victims' Rights Week, which is April 25th to May 1st.
The amendment that we are considering today is identical to the
amendment that was marked up and voted out by this 11 to 6
vote, so we hope we can replicate that once again.
I am glad that you entered into the record the statement of
Professor Larry Tribe, whose statement in support of this
amendment and the guarantee that the amendment provides for
victims' rights is very important.
I would like just basically to call everybody's attention
to the chart up there, which to me has been kind of the
overwhelmingly important statement of all of this, and that is
that defendants have 15 specific rights guaranteed to them by
the Constitution of the United States, and victims have no
rights guaranteed to them.
Now, I had always wondered, not being an attorney, how does
this happen, until I read that when the Constitution was
written in 1789, the Founding Fathers wrote the Constitution
without providing any specific rights for victims. Now, in the
first place, in 1789, there weren't 9 million victims of
violent crime every year; there weren't even 9 million
Americans of the 13 colonies.
Now, there was another reason, and that was the way the
criminal justice system worked in 1789. Victims didn't really
need constitutional rights because in America, in the late 18th
century and well into the 19th century, public prosecutors
didn't exist, such as Ms. Wilkinson, at least in her former
life. There weren't public prosecutors. Victims could, and did,
in fact, bring criminal cases themselves. They hired a sheriff
to arrest the defendant and they initiated a private
prosecution. The core rights of our amendment--notice, the
ability to attend and to be heard--were inherently made
available to the victim.
Now, all this changed in the mid-1850's when the concept of
the public prosecutor was developed and the State took on that
right, and the victim in the process was essentially left out.
And for me, that is the rub because no matter what you do in
the 31 States that have enacted individual State constitutional
amendments, once the rights of the defendant come into conflict
with the rights of the victim, the defendant's rights
automatically trump those rights.
Now, for me, I became involved in this--and I didn't even
realize I was really becoming involved--in 1974 when I was a
supervisor in San Francisco. And there was one particularly
horrifying case and it was known as the Pavajo case. It took
place when a man invaded a home on Portrero Hill in San
Francisco and he tied one of the victims to a chair; he
bludgeoned him to death with a hammer, a chopping block and a
vase. And then he repeatedly raped the man's 24-year-old wife,
broke her bones, slit her wrists, tried to strangle her and,
before fleeing, set the home on fire.
Ms. Carlson survived the fire and she testified against the
defendant, and her testimony really resulted in the conviction
of this person. And then her life became a terrible life
because he threatened to get her when he was released. And
every year she would call me and say, please, you have got to
help me; I have got to know when the parole hearing is coming
up; I live in dread of this man being released. She changed her
name. To this day, she lives anonymously. Now, no one in the
United States of America should have to live this way.
Then in 1982, California really led all of the States in
passing the first victims' rights constitutional amendment. It
was called Proposition 8. I supported its passage. So those who
saw the family of Nicole Brown Simpson or Mr. Ronald Goldman in
court, it was really because of Proposition 8 that they had
certain rights to be able to come into court.
Just this past November, Mississippi, Montana and Tennessee
added victims' rights amendments to their State constitutions.
These amendments were overwhelmingly passed by 71 percent and
89 percent of the vote, respectively. So as Professor Cassell
testified, today there are 32 different State constitutional
amendments and they differ from one another. Some present
certain rights, others present other rights. So they form kind
of a patchwork quilt of rights that vary from State to State.
We believe that victims deserve a basic floor of rights,
and that these rights be guaranteed to them by the Constitution
of the United States. And those rights constitute the right to
be present, the right to make a statement, the right to notice
of a release, and so on and so forth, as indicated in our
amendment today.
Now, to those who believe it is enough to have a State
provide these rights, I would like to point out that Maryland
has a State amendment, but when Cheryl Ray Resch was beaten to
death by her husband, her mother wasn't notified of the
killer's early release only 2.5 years into his 10-year
sentence. And she was not given the opportunity to be heard
about this release, in direct violation of Maryland's State
amendment.
Arizona has a State amendment, but an independent audit--
and I am sure Senator Kyl can testify to this--found that
victims were not consistently notified of hearings. Victims
were not consistently conferred with by prosecutors regarding
plea bargains. Victims were not consistently provided with an
opportunity to request post-conviction notification.
Ohio has a State amendment, but when the murderer of Maxine
Johnson's husband changed his plea, Maxine was not notified of
the public hearing and was not given the opportunity to testify
at the sentencing, as provided by the Ohio law.
Now, as Professor Cassell also stated, the Justice
Department took a look at this and their study made a similar
finding, ``Even in States with strong legal protections for
victims' rights, the victims' rights study revealed that many
victims are denied their rights. Statutes themselves appear to
be insufficient to guarantee the provision of victims' rights.
Nearly two-thirds of crime victims, even in States with strong
victims' rights protections, were not notified that the accused
offender was out on bond.'' And that has got to be a primary
right that a victim has the right to know when their assailant
is released, if only so that that victim can protect
themselves.
The study also found that a substantial number of victims
reported they were not given an opportunity to make a victim
impact statement at sentencing or parole. These are the basic
rights that this amendment would afford to every victim of a
crime of violence anywhere in the United States, a basic floor
of basic rights so that that scale of justice can be somewhat
equalized. So here we are today.
Ms. Wilkinson, the case of the McVeigh and Nichols
defendants in the Oklahoma City case has been raised, and my
staff handed me a copy of the judge's order and I want to read
into the record one part of that order because I think it
indicates the equivocation that exists even with the Federal
statute clarifying this.
``If there is a conviction, the court can protect against
any prejudicial effect from victim impact witnesses' attendance
at the trial, including closed-circuit telecast of the trial
proceedings, by permitting voir dire,'' as you suggested, ``of
victim witnesses outside of the presence of the jury before
they testify. All interests, including the public interest in
proceeding with Mr. McVeigh's trial, can be accommodated by
construing Public Law 105-6 as simply reversing the presumption
of a prejudicial effect on victim impact testimony of
observation of the trial proceedings. Thus, the distinction
between the effects of the crime of conviction and any effects
from the adjudicative process will still be preserved if this
court now reverses the exclusionary order, permits observation
of the trial proceedings by potential penalty phase victim
impact witnesses, and reserves ruling on the admissibility of
the testimony of particular witnesses who observed any part of
the trial proceedings,'' therefore, it seems to me setting in
doubt that if a victim is present in the case, they might not
be able to later testify and present a victim impact statement.
That is the kind of equivocation that I believe is present
in this court order, and I would like to ask that the full
order be entered into the record, if I might.
Senator Kyl. It will be entered into the record.
[The order referred to follows:]
[GRAPHIC] [TIFF OMITTED] T1438.001
[GRAPHIC] [TIFF OMITTED] T1438.002
[GRAPHIC] [TIFF OMITTED] T1438.003
Senator Feinstein. So, Mr. Chairman, let me just say in
conclusion we have a Constitution that was written when there
weren't 8 million victims of violent crime, when the
circumstances of trial were totally different than they are
today. And for the last century-and-a-half, victims have
essentially been left out of the process. What we want to do is
see that there are certain basic rights that the Constitution
will guarantee.
Now, we, as you have said, have had to compromise because
we have to produce 67 votes on the floor of the Senate, and
that is not an easy thing to do. Both you and I originally had
this amendment so that it applied to all victims, not just
victims of violence. But we increase our votes, we know, if we
limit it just to violence, and that is the only reason we made
the change in this amendment.
I believe it is extraordinarily important that victims of
crimes of violence have the right to be noticed of a hearing,
have the right to be present, have the right to give testimony,
have the right to at least know when their assailant is
released, and have the right to give testimony at a parole
hearing. These are basic rights, and unless they are provided
in the Constitution of the United States, any time they come
into conflict with these basic rights for the accused, they
will be trumped.
Thank you.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you very much, Senator Feinstein. That
is an eloquent statement. Let me now make a very brief
statement and then ask a couple more questions.
It seems to me that most of the arguments of opponents have
been pretty well dispensed with. We are now down to arguments
like the ranking member made when he was here that there are an
awful lot of proposed constitutional amendments floating
around. Well, that is not to suggest that any one of them is
not necessarily a good one.
We all agree that the Constitution should not be lightly
amended, but it is not the Senate that does the amending. All
we can do is pass it out of here with 67 votes, hope that the
House of Representatives will do the same thing, and then it
goes to the States. That is where the amendment process occurs
if three-fourths of the State legislatures agree. So it is a
huge burden, but it can't get started until we get it out of
the Senate.
Therefore, I think it is not too much to ask our colleagues
to help us in that endeavor. And we have worked very hard to
make sure that we have the most perfect document we can under
the circumstances drafted for that purpose. So as to the first
point that there are a lot of constitutional amendments
floating around, my response is so what? That doesn't mean that
at least one of them isn't very, very good and that we
shouldn't move it forward.
The second argument has been that State statutes and
constitutional provisions are adequate to the task. And I think
that particularly, Professor Cassell, your opening remarks in
that regard, as well as statements by Professor Tribe, the
Department of Justice and others who have spoken to the issue
refute that claim. It is more honored in the breach, it
appears. And so it seems to me that as long as we are not
finding that these statutes are providing the kind of
protection that we all want, it is appropriate to turn to the
constitutional amendment.
The third is not really spoken, but there is an implication
that we are really rushing this along. Well, it has been 17
years since President Reagan's 1982 task force, and I am not
sure that some of you were around at that time. I am not even
going to inquire, but some of you were. In any event, along the
way a lot of victims and victims' rights groups have been
created to advance this cause.
And so for 17 years, in our case after 31 State
constitutional changes, even State statutory, action here in
the U.S. Congress, now the fourth year of work on it and the
fourth hearing before this full committee, it doesn't seem to
me that one could contend that we are rushing this along. We
have tried to meet every objection, every question, including
even a suggestion here that we add one more concept, which I am
pleased to say that all three witnesses were in general
agreement on.
So it seems to me that we have come a long way, and for
those who might say why aren't there more witnesses at this
hearing, it is that the testimony that we have received from
the victims' rights groups over the years, I think, has been
overwhelmingly persuasive. The only thing we are arguing about
now is a few nits and gnats in the language, and that is why we
wanted to have three lawyers here, each of whom have a slightly
different view, but all of whom have certainly added to the
record here today.
So what I am hopeful of is that if there are others out
there who still have some question about specifics, they should
come forward so that we can get this thing into its final draft
and marked up and onto the floor of the U.S. Senate. I think
that victims of crime deserve that, and that any further delay
or obstruction or nit-picking frankly is unwarranted. Let me
just put it that way.
Now, in an effort to bend over backwards here and provide
the rationale for some things that we have done, in case there
is any question about it, because some questions have been
raised, let me ask a couple of questions here and maybe we can
just have a very brief response.
Let me start with you, Professor Cassell. Some have argued
that the Constitution protects only negative rights, i.e.
rights against the government--``the State shall not.'' What do
you think of this argument as an argument against this proposed
amendment?
Mr. Cassell. That argument obviously fails. What the
victims' rights amendment would do would be to protect the
rights of citizens like Marsha Kight against government power.
She and some of the other victims were told by Judge Matsch
that they either had to leave the court room or they would not
be able to present testimony down the road. So it is to protect
against the use of government power to exclude victims, for
example, that the victims' rights amendment would exist.
Senator Kyl. Thank you. Incidentally, there are numerous
representatives of victims groups in the audience, but Marsha
Kight has been referred to so many times, I might hold up her
book, Forever Changed: Remembering Oklahoma City April 19,
1995, compiled by Marsha Kight, Director of Families and
Survivors United. And if anybody in the audience would like to
see some evidence of lives forever changed, come to my office
or come to Senator Feinstein's office. There are two large--
what would you call them--banners from the Oklahoma City
bombing case that have literally thousands of names, signatures
and messages penned on them. And they are separate; there is
one in my office and one in Senator Feinstein's office. Lives
were forever changed, and we appreciate your presence here,
Marsha Kight, and all of the other representatives.
One more question, Professor Cassell. I am actually trying
to get an appropriation this year for a grant to advance a
cause which has become apparent to me, and that is that law
schools don't appear to be focusing on victims' rights, which
suggests to me that it may be one of the reasons why the Crime
Victims' Rights Amendment is not perceived as well in the legal
profession as it should be.
What is your take on that?
Mr. Cassell. I think you have put your finger on a very
serious problem in legal education today. I am teaching at the
University of Utah College of Law this semester for the first
time a course focusing on crime victims' rights. There is a new
law school textbook out by Professor Doug Beloof that will be
very useful in that regard.
But apart from my class and Professor Beloof's class and
just really one or two others around the country that I am
aware of, victims' rights are not part of the law school
curriculum. If you go to the bar exam, which is the process by
which lawyers are certified, they are not asked questions about
victims' rights, but they are asked questions about defendants'
rights and prosecutors' interests, and so forth.
So I think there is a real gap in legal education there,
and one of the things that would come out of a victims' rights
amendment would be an encouragement to the legal community to
begin educating on this, focusing on this, dealing with some of
the questions that victims present.
Senator Kyl. Thank you.
Mr. Twist, one of the things that has been raised is how to
deal with the exceptional case, and certainly the Oklahoma City
bombing case would be an example of that where you have a large
number of victims. What is the reason for the exceptions clause
in this amendment?
Mr. Twist. Senator Kyl, it is for precisely the reasons
that opponents of the amendment have offered from time to time
in their opposition, examples of hypothetical horrors which
might result if the amendment were to be enacted, by arguing
that the language of the amendment is a straightjacket that
would put the criminal justice system and the prosecutor and
the court without anywhere to turn in hard cases.
It is appropriate that the amendment include this exception
language so that it is clear that it is the Congress, the
legislative body, that will have the authority to, after a
deliberative process, craft exceptions to the otherwise
unequivocal language in order to accommodate those cases.
For example, where a victim of domestic violence may, in
her anguish, strike out at her batterer, and frankly be
prosecuted and convicted and incarcerated for that, the
language of the amendment would allow an exception to be
created whereby that batterer, the underlying batterer, would
not have to get notice of the release of the victim of that
domestic violence, exceptions like that that will be the
product of a deliberative process in Congress, where those
debates ought to occur.
Senator Kyl. I also think that the point made earlier with
respect to notice was important because I have heard some say
this is going to be an extraordinarily burdensome and costly
process to notify everyone. I think prosecutors who are
conscientious already do that and try very hard to do it. But
it wouldn't necessarily be the prosecutor.
As we have drafted this, the individual State legislatures
would decide. Maybe it is the clerk of the superior court in
Arizona. But the State legislators can determine who should
have that responsibility and they can see to it that the funds,
as needed, are provided to the entity, whether it be the clerk
of the court, the county attorney's office or whoever, to
ensure that that notice is provided. That seems to me to be
quite a bogus argument. I know I talked to the county attorney
in the fastest growing county in the country, Maricopa County,
Arizona, who said that he thought the notice requirement would
take about the equivalent of one-half the time of a full-time
equivalent employee. So I don't think that is a significant
objection.
One final question has to do with the balancing. There were
some other questions asked, I think, by Chairman Hatch about
this. May I ask you, Mr. Twist, if I am incorrect on this?
There is at least one of the rights that would be provided--and
there may be others, but I can only think of cases where it
would arise in connection with the right to be present at the
trial, as opposed to a defendant's right to a fair trial, which
in some circumstances in the past has resulted in exclusion of
a victim or a victim's family from the court room, in which
there could be a conflict between a right of the defendant
which has been held to be constitutionally guaranteed and a
right of the victim which would now be constitutionally
guaranteed.
I can't think of any other situation in which you would
have those two rights conflict, but there may be some. I view
this as similar to the right of the free press to cover a
trial, but the judge's ability to protect the right of a
defendant to a fair trial, and in some cases therefore exclude
the press. Now, the First Amendment is the first among the 10
and is usually held up as inviolate. But courts have
historically balanced those two complete rights and have struck
the balance to ensure that both of them are satisfied to the
extent that they can be when there is a conflict.
Is there any difference with respect to the granting of a
constitutional right here where finally the victim would have
equal standing in at least this one situation? But with respect
to Senator Feingold's concern that maybe we have to have a
separate little tag line that says, however, any of the
defendant's rights are still number one, would you have to have
that?
Mr. Twist. No, Senator. In fact, I think the consequences
of that language could be quite pernicious. In fact, you are
exactly right that courts are in the business of balancing
rights that come into conflict, whether those rights are
grounded in the Constitution or elsewhere. And that is exactly
what courts would do with this amendment. If this amendment
were to be the law, they would balance these amendments against
other enshrined amendments in the Constitution for persons
accused or convicted.
And the only way for the balance to be true, for the
assessment to be fair among these competing rights is if they
both reside in the fundamental law of the country, the U.S.
Constitution. And without that, there is forever an imbalance
in the way courts go about their decision to weigh the rights
of the victim and the rights of the defendant.
We think it is absolutely clear throughout the history of
our constitutional law that courts will balance rights when
they come in conflict. And in earlier testimony from Professor
Cassell, we have even proposed, if some feel it is necessary to
codify that principle, some language that would codify the
principle of striking a balance. Certainly, no one could ask
for more. Certainly, no one should ask for a defendant to have
codified into the Constitution an automatic victory regardless
of the facts, regardless of the circumstances, regardless of
the context, whenever rights come in conflict.
Senator Kyl. Well, I thank you. I know we have that
language, but we can add that if we need to.
Let me say we have gone over our time. There will be 1 week
for people to submit statements to the record, for additional
questions to be posed and for their response, one week from
today's hearing. Let me also again thank, in their absence,
Senator Ashcroft and Senator Feingold, the chairman and ranking
member of the subcommittee, who did not insist on their
jurisdiction in this case, Senator Feingold keeping an open
mind on the amendment and Senator Ashcroft supporting it, with
a couple of suggestions as to how we might strengthen it; to
Senator Feinstein for all of her extraordinarily hard work and
efforts at ensuring a very strong bipartisan support for the
amendment; to thank Senator Hatch for conducting the hearing;
and for all of the guests who are here, and most especially for
the three members of the panel. We very much appreciate your
presence here today.
If there is nothing further, I will declare the hearing
adjourned.
[Whereupon, at 12:10 p.m., the committee was adjourned.]
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Questions and Answers
----------
Response of Steven J. Twist to a Question From Senator Hatch
Question 1. In your prepared testimony, you quote an Arizona case
that states, ``the Supremacy Clause requires that the Due Process
Clause of the U.S. Constitution prevail over state constitutional
provisions.''
If all the rights set forth in the proposed constitutional
amendment were incorporated into a federal statute or into a state
constitutional provision, which of these rights would be struck down or
curtailed under the Due Process Clause of the federal Constitution as
currently interpreted by the federal courts.
Answer 1. The sad truth is that any one of them could be. The
principle has been articulated by at least one court, Division One of
the Arizona Court of Appeals, several times, most recently in Romley v.
Martin, 1 CA-SA 98-0085, Memorandum Decision, (June 18, 1998). In this
case the court wrote, ``We also understand that ``when the defendant's
constitutional right to due process conflicts with the Victim's Bill of
Rights in a direct manner, * * * then due process is the superior
right.' '' [quoting Romley v. Superior Court., 172 Ariz. 232, 236, 836
P.2d 445, 449 (App. 1992)]. As I said in response to Senator Leahy's
question on this point:
This black-letter principle is the very point that proponents
of the Crime Victims' Rights Amendment have been making. One
need look no further than these cases for evidence that courts
in fact adopt the principle. The only way to strike a fair
balance when the defendant's rights and the victim's are
alleged to be in conflict is to elevate victims' rights to the
same fundamental status accorded to defendants' rights. Only
then will courts be able to truly accommodate the legitimate
rights of both.
Responses of Steven J. Twist to Questions From Senator Leahy
Question 1. When you testified on this issue last April, I asked
you whether you knew of any appellate cases in which defendants had
successfully overturned their convictions based on the presence of
victims at trial, or other provisions of state or federal victims'
rights provisions. You directed me to an unpublished decision of the
Arizona Court of Appeals, Romley v. Martin [1 CA-SA 98-0085 May 7, 1998
(Mem. Decision)], which held that the defendant's due process right to
present a defense took precedence over the victim's right, under the
Arizona Constitution, to refuse a pre-trial demand that she submit to a
psychological examination.
As is typical of cases presented as examples of defendants' rights
``trumping'' victims' rights, the Arizona Court of Appeals subsequently
reversed itself in Romley v. Martin, issuing an amended decision on
June 18, 1998, which concluded, on the facts of that case: ``[T]he
victim's right to refuse a defense examination is superior to
Defendants' interest in having her examined,'' and, ``[T]he Defendants
constitutional rights are not violated by upholding the victim's
constitutional rights.''
The amended decision in Romley v. Martin appears consistent with
other recent decisions by the Arizona courts. For example, just this
month, the Arizona Supreme Court upheld a victim-witness's
constitutional right to be present in the courtroom against a
defendant's due process challenge. [State v. Fulminante, 1999 WL
102251, at *17-18 (Ariz. Mar. 2, 1999).] Similarly, in August 1998, the
Arizona Court of Appeals upheld a parent's right to attend trial
proceedings with and on behalf of her child, even though the parent
would later testify. [State v. Uriarte, 1998 WL 540998 (Ariz. App. Div.
1, Aug. 27, 1998).]
I am aware of one Arizona case which held that a victim's right
under the state Constitution to refuse discovery requests by the
defendant must yield to the defendant's due process right. [Romley v.
Superior Court, 835 P.2d 445 (Ariz. Ct. App. 1992).] Other than that
case, which you agreed at the hearing was correctly decided, are you
aware of any appellate cases anywhere in the United States that were
finally decided and not subsequently reversed in which a defendant's
right under the Federal Constitution was held to ``trump'' a victim's
right under a state or federal victims' rights provision?
Answer 1. The second Martin opinion did not ``reverse'' the first
opinion on the legal principle which is the focus of your question, in
fact, on that issue, it reaffirmed the principle. In the second
opinion, the court wrote, at page 5, ``We also understand that, ``when
the defendant's constitutional right to due process conflicts with the
Victim's Bill of Rights in a direct manner, * * * then due process is
the superior right.' '' [quoting Romley v. Superior Court., 172 Ariz.
232, 236, 836 P.2d 445, 449 (App. 1992)].
This black-letter principle is the very point that proponents of
the Crime Victims' Rights Amendment have been making. One need look no
further than these cases for evidence that courts in fact adopt the
principle. The only way to strike a fair balance when the defendant's
rights and the victim's are alleged to be in conflict is to elevate
victims' rights to the same fundamental status accorded to defendants'
rights. Only then will courts be able to truly accommodate the
legitimate rights of both.
Question 2. As you know, this Committee reported a resolution
identical to S.J. Res. 3 toward the end of the last Congress. The
Majority Report accompanying that resolution contended that,
``consistent with the plain language of [Section 3],'' the States would
retain the power to implement the amendment, including the power to
flesh out the contours of the amendment by providing definitions of
``victims'' of crime and ``crimes of violence.'' As I read Section 3,
only ``The Congress'' would have the power to implement the amendment.
Please discuss how much latitude you think that the States would have
in implementing this amendment and any necessary exceptions to it.
Answer 2. Professor Cassell and I have both been asked similar
questions. We have collaborated on our answer to provide you with the
benefit of our collective thinking on this point.
We agree with the language of the Majority Report you quote. As the
Majority Report explained:
This provision [section 3 of the Amendment] is similar to
existing language found in section 5 of the 14th amendment to
the Constitution. This provision will be interpreted in similar
fashion to allow Congress to ``enforce'' the rights, that is,
to insure that the rights conveyed by the amendment are in fact
respected. At the same time, consistent with the plain language
of the provision, the Federal Government and the States will
retain their power to implement the amendment. For example, the
States will, subject to the Supremacy Clause, flesh out the
contours of the amendment by providing definitions of
``victims'' of crime and ``crimes of violence.''
S. Rep. 105-409 at 35.
The important point to distinguish here is between ``enforcement''
power under the Amendment and implementation power. The question posed
seems to conflate the two points, referring to a general congressional
power to implement the Amendment. While Congress will surely have the
power to implement the Amendment in the federal system, it does not
have this implementation power in the state system. Section 3 of S.J.
Res. 3 confers on Congress only the power to ``enforce'' the Amendment.
This enforcement power is not unlimited, as the Supreme Court's recent
decision in City of Boerne v. Florida, 117 S. Ct. 2157, 2163-64 (1997),
makes clear in the context of similar language found in the Fourteenth
Amendment. As a consequence, this grant of a congressional enforcement
power does not remove from the states their plenary power over their
criminal justice systems. Thus, we believe, as did the majority of this
Committee, that the states have considerable implementation power under
the Amendment.
Question 3. The International Association of Chiefs of Police
(IACP) has raised concerns that the proposed Victims' Rights Amendment
could ``allow delays in the swift administration of justice, or the
creation of civil or criminal liability for failure to protect the
victims' or their survivors' rights.'' Can you assure us that the
IACP's concerns are unfounded?
Answer 3. Yes. Professor Cassell and I have both been asked similar
questions, so we have collaborated on our answer to give you the
benefit of our collective thinking on this point.
We do not have IACP document to which this question refers before
us, so we will answer this question without reference to the IACP.
Indeed, we know that many law enforcement offices and chiefs of police
around the country support the Victims Rights Amendment. They have good
reason for doing so. The Victims Rights Amendment will not delay
justice. To the contrary, it contains a provision that should speed up
the administration of justice--the victims right to ``consideration of
the interest of the victim that any trial be free from unreasonable
delay.'' Nor would it allow the creation of civil or criminal liability
for failure to protect victims. This concern appears to have been
raised with respect to an earlier version of the proposed Amendment.
S.J. Res. 3 does not contain a right of a victim to be protected from a
defendant. Instead, it contains specific rights dealing with court
consideration of the victims' interest in safety. Moreover, section 2
of S.J. Res. 3 states that the amendment does not create civil damages
actions against state entities, so any concern about new liability is
unfounded.
Question 4. The proliferation of state laws and constitutional
amendments protecting victims rights is a relatively recent phenomenon.
Just last year, Mississippi, Montana and Tennessee approved state
constitutional amendments providing rights to crime victims, joining 29
other states that have adopted such amendments since 1982. Why
shouldn't we learn from the experience of the states before imposing a
single federal standard in this area?
Answer 4. Professor Cassell and I have been asked similar
questions, so we have collaborated on our answer to give you the
benefit of our collective thinking.
We certainly agree that the country should learn from the
experience of the states in considering whether to pass a victims
rights amendment. As was explained at greater length at the hearing (in
Professor Cassell's prepared statement), on this point it is useful to
consider the result of a meeting recently convened by the Department of
Justice of those active in the field, including crime victims,
representatives from national victim advocacy and service organization,
criminal justice practitioners, allied professionals, and many others.
Their report--published by the office for Victims of Crime and entitled
``New Directions from the Field: Victims' Rights and Services for the
21st Century''--concluded that ``[t]he U.S. Constitution should be
amended to guarantee fundamental rights for victims of crime.'' The
report went on to explain,
A victims' rights constitutional amendment is the only legal
measure strong enough to rectify the current inconsistencies in
victims' rights laws that vary significantly from jurisdiction
to jurisdiction on the state and federal levels. * * * Today,
many victims do not report crime or participate in the criminal
justice system for a variety of reasons, including fear of
revictimization by the system and retaliation by the offender.
Victims will gain confidence in the system if their rights are
recognized and enforced, their concerns for safety are given
serious consideration, and they are treated with dignity and
respect.
These impressionist conclusions find strong support in a December, 1998
report from the National Institute of Justice (NIJ) finding that many
victims are denied their rights and concluding that ``enactment of
State laws and State constitutional amendments alone appears to be
insufficient to guarantee the full provision of victims' rights in
practice.'' The report found numerous examples of victims not provided
rights to which they were entitled. For example, even in several states
identified as giving ``strong protection'' to victims rights, fewer
than 60 percent of the victims were notified of the sentencing hearing
and fewer than 40 percent were notified of the pretrial release of the
defendant. A follow-up analysis of the same data found that racial
minorities are less likely to be afforded their rights under the
patchwork of existing statutes.
Of course, at some point the time for learning passes and the time
for action begins, particularly because each day that passes in a
``learning'' process means denials of rights to victims of crime. We
believe the time for action on a federal amendment has come.
Question 5. (A) What is the state of the law regarding crime
victims' rights in each of the states that does not currently provide
such rights in its constitution?
(B) What efforts are being made in these states to support passage
of state constitutional amendments regarding crime victims' rights?
(C) What efforts are being made in these and other states to
increase the protection of crime victims' rights other than efforts at
constitutional change (state and federal)?
(D) In states with victims' rights constitutional amendments,
please provide examples of cases in which the constitutional rights of
victims came into conflict with the constitutional rights of the
accused.
Answer 5. Professor Cassell and I have been asked similar
questions, so we have collaborated on our answer to provide you with
the benefit of our collective thinking.
(A) Providing precise information on the ``state of the law'' in
states without state constitutional amendments is difficult. We are
aware of no readily-available source that contains this information.
Indeed, this is one problem that victims face in attempting to assert
their rights. The treatise Professor Beloof and Professor Cassell are
working on will provide further information about the state of the law
around the country.
(B) The National Victims Constitutional Amendment Network (NVCAN)
supports state victims amendments. An information packet has been
prepared that is provided to persons interest in state amendments.
(C) Each year in the states, of course, various statutory changes
are made or proposed in laws concerning crime victims. For example,
this year in Utah, the Utah Council on Victims attempted to change
procedures for collecting restitution. We were unsuccessful, but will
make further efforts next year. Again, we do not have available a
comprehensive listing of all such efforts around the country. The
National Center for Victims of Crime attempts to keep track of various
legislative initiatives pursued on behalf of victims, and they may be
able to provide you with more comprehensive information.
(D) See our answers to question 1, above, which provides detailed
information on this question.
Responses of Beth Wilkinson to Questions From Senator Hatch
Question 1. As you know, the Department of Justice has a long
standing tradition of defending the constitutionality of Acts of
Congress whenever ``reasonable'' arguments to that effect can be made.
Terry Nichols has argued that it is a violation of the Ex Post Facto
Clause of the Constitution to apply the provisions of the 1996
Mandatory Victim Restitution Act (MVRA), 19 U.S.C.
Sec. Sec. 3664(f)(1)(A) (Supp. II 1996), retroactively to the 1995
bombing as Congress intended. In its decision last month, the 10th
Circuit rejected Nichols' position, concluding that restitution serves
to compensate victims rather than punish defendants and therefore that
the Act could be applied to his sentencing. United States v. Nichols,
No. 98-1231 (10th Cir. Feb. 26, 1999). Do you think that the 10th
Circuit's position (following, a 7th Circuit ruling in United States v.
Newman, 144 F.3d 531 (7th Cir. 1998),) is a ``reasonable'' one and, if
so, shouldn't the Department's lawyers be defending this ruling and
helping victims around the country obtain restitution from violent
offenders?
Answer 1. While the 10th Circuit recently ruled that the 1996
Mandatory Victim Restitution Act (MVRA) applies retroactively, most
other circuits have decided differently. In light of the split in the
circuits, the Department of Justice is right to take the most
conservative position to ensure that victims obtain restitution from
violent offenders without risking a reversal of the order on appeal. In
United States v. Terry Nichols, the government successfully persuaded
the trial court to order $14.5 restitution under the prior statute.
Thus, the restitution order would have been upheld on appeal regardless
of how the 10th Circuit interpreted the MVRA.
Question 2. Given the 10th and 7th Circuits' recent rulings on the
retroactive application on the MVRA rejecting the Department's views,
it seems clear that victims of crimes of violence in a number of cases
would have benefitted from having separate legal representation to help
them obtain the maximum possible restitution. In the cases you have
seen, what steps did the Department take to see that the victims were
aware of their right to separate legal representation on this issue and
what steps, in your view, should it have taken? For example, given the
difficulties that victims of violent crime have in obtaining separate
legal representation, would it have been desirable for the Department
of Justice to at least lay out to courts around the country the
argument recently adopted by the 10th and 7th circuits so that these
were aware of what the victims' legal arguments would be?
Answer 2. It would be wise for the Department of Justice to advise
victims of crime of their right to separate legal representation. There
are times when crime victims may want to seek counsel from those other
than the prosecution team. That counsel for victims take different
positions from Justice Department attorneys does not mean such
arguments will prevail. Lawyers for some of the victims in United
States v. Terry Nichols made arguments to the trial court that were
unsuccessful. The Justice Department attorneys are obligated to take
reasonable positions based on a fair interpretation of the law of the
case and the law or the circuit.
Question 3. Why didn't Department of Justice lawyers seek any order
of restitution against Timothy McVeigh, particularly given the
possibility that he might be able to ``sell his story'' by giving an
``exclusive'' interview to some curious media outlet?
Answer 3. Timothy McVeigh received a sentence of death from the
jury and Judge Matsch imposed that sentence without considering
restitution. Neither the prosecutors nor the victims, some of whom had
their own counsel, asked Judge Matsch to order restitution.
Responses of Beth Wilkinson to Questions From Senator Leahy
Question 1. In your experience, are Federal prosecutors and courts
equipped with sufficient resources to identify and locate victims and
assist them with their special needs, or would additional resources be
necessary to ensure that the rights proposed in this amendment could be
carried out?
Answer 1. To address the needs of victims, Congress must bolster
the presently limited resources of the judicial system. At present,
prosecutors and courts labor to fulfill the social and legal
requirements of criminal prosecution without sufficient funds and
administrative support necessary to assist victims of crime. The
resources marshaled in the Oklahoma City bombing cases were atypical
and most prosecutors struggle to successfully try their cases and meet
the needs of the victims. Any effort to redress the shortcomings of
society's response to victims will fail if not sufficiently funded and
staffed.
Question 2. In your experience, do victims generally want the same
thing from the judicial process, or do their expectations differ? If
the former, what do they seek? If the latter, please explain the
differences.
Answer 1. One of the most delicate aspects of working with victims
of crime is recognizing that each survivor and each family member deals
differently with the judicial system. As a prosecutor, I spoke to
survivors and family members of victims of crime who had vastly
different expectations of the criminal justice system. Some wanted
little from the process other than the just conviction of the
perpetrators. Many of the victims of the Oklahoma City bombing avoided
any contact with the system. They chose not to attend the trials, some
vehemently refused to testify as penalty witnesses. Others attended
nearly every proceeding that occurred in the cases and felt a need to
testify about their losses.
It would be inappropriate to believe that the opinions of the most
vocal are shared by those who choose to deal with their grief in a
different way. Because the reactions to the criminal justice system are
as varied as the victims themselves, it is difficult to generalize
about the expectations of crime victims.
Question 3. You have given us examples of how the proposed
constitutional amendment could have impeded the effective prosecution
of the Oklahoma City bombing defendants. Can you identify other
examples from your experience in which the amendment could have
impaired the criminal justice process?
Answer 3. The other major terrorism case that I handled could have
been put at risk if the proposed constitutional amendment were adopted.
In United States v. Dandeny Munoz Mosquera, a case prosecuted in the
Eastern District of New York, the defendant was convicted, among other
things, of bombing an airplane in Bogota, Colombia. The proposed
amendment would have required us to contact all of the victims, most of
whom resided in Colombia. To further complicate matters, we encountered
difficulties with elements of the Colombian government when we sought
cooperation and evidentiary testimony. The drug cartels threatened law
enforcement officials and made communication with witnesses and victims
extremely difficult.
Although the requirements of the proposed amendment may not be
burdensome in some local cases, the difficulties multiply when the
United States prosecutes crimes that occurred outside its borders. If,
for example, the government was prosecuting members of a foreign
terrorist organization, the prosecutorial strategy behind a plea with a
less culpable member of the organization may be best left unexplained
until the time of trial. With the requirements of the proposed
amendment, the victims could insist that the prosecution team explain
the rationale for the plea, thereby jeopardizing the prosecution of the
main perpetrators.
Question 4. The Committee has heard testimony that prosecutors did
not allow a victim of the Oklahoma City bombing to be heard at the
sentencing of Timothy McVeigh because she was opposed to the death
penalty. Is that correct? Please explain your response.
Answer 4. No one who opposed the death penalty was prohibited from
testifying during the penalty phase of the McVeigh trial. If a family
member or survivor chose to testify, the prosecution team explained
that the statement would be used to support the government's request
for the death penalty. Some who opposed a death sentence felt it would
be inappropriate for them to testify in a proceeding in which the
government would argue that death was the just sentence.
Whether a victim-witness supported or opposed the death penalty was
not, in any event, proper subject of testimony. No victim-witness was
permitted to testify regarding their personal views on the death
penalty.
Question 5. You suggested during the hearing that the rights of
victims should be balanced with the rights of the accused. (A) In cases
of irreconcilable conflict, where accommodation cannot protect the
rights of both the victim and the accused, do you believe that the
accused's historical constitutional right to a fair trial must be
preserved? (B) Would you support the addition to S.J. Res 3 of the
following language: ``Nothing in this article shall be construed to
deny or diminish the rights of the accused as guaranteed by this
Constitution''?
Answer 5. Until a defendant is convicted of a crime, a conflict
between the rights of a victim and the rights of the accused must be
decided in such a way as to preserve the right to a fair trial for the
accused. One way of ameliorating a deficiency in the current proposed
amendment would be to add the following language: ``Nothing in this
article shall be construed to deny or diminish the rights of the amused
as guaranteed by this Constitution.''
Question 6. You testified that, in your opinion, the proposed
constitutional amendment should not be limited to victims of violent
crimes, but should instead extend to all crime victims. Is it your
testimony that you would support the adoption of S.J. Res 3 were it so
broadened?
Answer 6. No, I do not support the adoption of S.J. Res 3 in its
current form, for the reasons I have stated. I also think any proposed
amendment to protect crime victims should include all victims, not just
victims of violent crimes.
Responses of Beth Wilkinson to Questions From Senator Kyl
Question 1. In your testimony, you explain that it was desirable
for victims to be heard at sentencing. Could you elaborate on the
positive aspects of victims making statements at sentencing?
Answer 1. There are several reasons that victim testimony at
sentencing is beneficial to the criminal justice system. First, whether
it is a judge or jurors who must decide the sentence of a convicted
defendant, it is essential that the impact of the crime be considered.
In most cases, survivors and family members are in the best position to
describe the loss to society. Second, many victims of crime want to
express their views to the defendant and the sentencing court. Speaking
at a sentencing hearing provides them with the opportunity to express
their views in a dignified and serious setting. Finally, when victims
of crime speak at a sentencing hearing, the community benefits from
hearing about the after effects of a crime.
Apart from the cathartic and retributive attributes of sentencing
hearings, the essential purpose is to determine the just sentence for a
defendant. Unlike the trial proceeding, during the sentencing hearing a
judge or jury should consider the impact of the crime when deciding
that just sentence. Of course, the court must always ensure that a
sentencing decision is based on reason and not on emotion or passion.
Question 2. During the Oklahoma City bombing case, Department of
Justice lawyers held several mass meetings with victims of the bombing
to explain developments in the case. Do you think these meetings helped
the victims understand the proceedings or were useful in other ways?
Answer 2. The meetings we held with the victims of the Oklahoma
City bombing were helpful to the victims and the prosecution team.
During those meetings we explained the proceedings and the issues we
anticipated would arise during the trial. The victims were able to ask
questions and express their views. One of the most important aspects of
the meetings was the time we had to get to know the victims and the
opportunity they had to get to know us. Victims who have suffered such
severe trauma and loss need to know the people who are responsible: for
the prosecution of the defendants. Likewise, it was a privilege for me
and the rest of the prosecution team to get to know the survivors and
family members and to understand the issues they were confronting.
Question 3. On June 26, 1996, Judge Matsch sua sponte ordered
victims of the Oklahoma City bombing who wish to be eligible to give
victim impact statements at sentencing to stop watching any of the
proceedings in the case. Judge Matsch gave the victims the lunch break
to make this wrenching decision of whether to stop watching the
proceedings or lose any opportunity to make an impact statement. What
was it like for the victims to make such an important decision with so
little time to deliberate?
Answer 3. The decision for some of the victims was very difficult
and was only exacerbated by the lack of time they had to make that
decision. Fortunately, the passage of the Victims Rights Clarification
Act of 1997 allowed many of the victims who had initially decided to
avoid watching the proceedings to attend the trials.
Question 4. On March 25, 1997, Judge Matsch ruled that the victims
request for a ruling clearly upholding the Victims Rights Clarification
Act of 1997 was moot. After that ruling, were Department lawyers able
to assure prospective victim impact witnesses unequivocally that they
would run no risks from watching the proceedings and, if not, what
risks did the Department lawyers see?
Answer 4. When Judge Matsch first ruled on the Victims Rights
Clarification Act of 1997, we could not unequivocally assure
prospective victims impact witnesses that they would be permitted to
testify if they viewed the trial. Judge Matsch did suggest that he
would determine at a hearing after the initial phase of the trial
whether attendance at the trial adversely affected the impact testimony
of any potential witnesses. Fortunately, none of the victims who chose
to watch the trial was precluded from testifying. The issue was
resolved in the McVeigh case and no victim had to face that choice
during the Nichols case.
Question 5. The proposed Victims' Rights Amendment would give ``a
victim of a crime of violence'' the right to be heard before a plea
bargain is accepted. Federal Rule of Criminal Procedure 32(c)(3)(E)
gives a victim of ``a crime of violence'' a right to be heard at the
sentencing of a defendant. Our Committee has expressed the view that
the two phrases should be given identical constructions. See S. Rep.
105-409 at 23. Do you believe that Marsha Knight and other victims of
the Oklahoma City bombing were victims of a ``crime of violence'' by
Michael Fortier under the Victims Rights Amendment and under the Rules
of Criminal Procedure. (As you know, he pled guilty to misprision of a
felony in violation of 18 U.S.C. Sec. 4 in connection with failing to
alert government authorities to the bombing.) If so, why did you and
other Department attorneys decline to join the victims' argument that
they were victims of such a ``crime of violence'' when they sought the
right to be heard at Fortier's sentencing under Rule 32(c)(3)(E)?
Answer 5. Victims did testify at the sentencing hearing for Michael
Fortier and the Justice Department advocated for their right to do so.
The Department argued that the court should exercise its discretion to
hear from any victim who wanted to speak; and the court agreed. Whether
Michael Fortier committed a crime of violence is irrelevant. I believe
victims of crime, regardless of whether the crime qualifies as a crime
of violence, should be permitted to speak at the sentencing hearing of
a defendant.
Question 6. After the 10th Circuit's ruling in United States v.
McVeigh, 106 F.3d 325 (10th Cir. 1997), how difficult is it for victims
and the Department of Justice to seek appellate review of decisions by
district court judges who fail to provide to victims of crime their
rights under the Victims Bill of Rights, 42 U.S.C. 10606(b)? Would
passage of the Victims Rights Amendment, particularly with its
provisions conferring ``standing'' on victims, improve the prospects of
obtaining appellate review of trial level denial of victims rights?
Answer 6. The provisions conferring standing to victims in the
proposed Victim's Rights Amendment need to be clarified as to when a
victim of crime would have a stand to seek appellate review. Any
standing problems that currently exist for victims could easily be
addressed through legislation. An amendment to the Constitution is
unnecessary to rectify those problems. To the extent some may suggest
that victims should have more interlocutory appeals, it should also be
understood that such appeals could unnecessarily delay a trial, thus
adversely impacting a case.
Question 7. Do you believe it would have been desirable for Marsha
Knight and other victims who were not able to testify at the penalty
phase of Timothy McVeigh's trial to have had the opportunity to give an
impact statement later when Judge Matsch actually imposed the capital
sentence?
Answer 7. It is not accurate to state that some victims were unable
to testify at the penalty phase for Timothy McVeigh. There were
approximately 37 witnesses who testified in front of the jury which
decided the just sentence for McVeigh. Any impact statement given later
when Judge Matsch actually imposed the capital sentence would have had
no effect on the sentence. The jury had already determined that the
death penalty was the appropriate sentence. If one of the purposes of
victim impact testimony is to provide the jury with information to
consider when sentencing a defendant, testimony at the imposition of
the sentence would not serve that purpose.
Responses of Paul Cassell to Questions From Senator Leahy
I appreciate the opportunity to respond to your questions
concerning the Victims Rights Amendment and hope that my answers will
allay some of the concerns that have lead you to oppose the Amendment.
Question 1. When you testified on this issue last year, I asked you
to provide a list of all appellate cases in which defendants had
successfully overturned their convictions based on the presence of
victims at trial, or other provisions of state or federal victims'
rights provisions. You did not respond by citing a single case.
Instead, you noted that you and Professor Doug Beloof were preparing a
treatise on the rights of crime victims that would comprehensively
survey the relevant case law, and that the relevant chapters had not
yet been completed.
Professor Beloof's casebook on victims has now been completed. Are
you aware of (A) any decisions that were not eventually reversed in
which victims' rights laws or state constitutional amendments were not
given effect because of defendants' rights in the federal Constitution
or (B) any cases in which defendants' convictions were reversed because
of victims' rights legislation or state constitutional amendments?
Answer 1. My answer last year mentioned a treatise that Professor
Beloof and I are preparing on victims' rights. This is a separate, more
comprehensive work than the Beloof casebook that your question
references. The Beloof casebook is a very useful teaching tool. I am
teaching a course on crime victims rights and the book has done an
excellent job in exposing the students to the various issues raised by
victims' demand for fair treatment in the process. However, the
casebook does not comprehensively collect appellate case law on
victims' right.
Only the treatise will review all the caselaw. Until such a
treatise is prepared (we estimate the task will take several years), it
is impossible to report on the precise status of victims' case law in
all fifty states. While I am not aware of any appellate cases today of
the type you describe that pertain directly to the rights contained in
the proposed Victims Rights Amendment, I should hasten to point out
that appellate cases of any sort involving victims are quite rare. This
is because of the difficulties victims have in protecting their rights.
As I explained at greater length in my prepared statement:
The important issue is not whether victims rights are
thwarted by a body of appellate law, but rather whether they
are blocked by any obstacles, including most especially
obstacles at the trial level where victims must first attempt
to secure their rights. One would naturally expect to find few
appellate court rulings rejecting victims' rights; there are
few victims' rulings anywhere, let alone in appellate courts.
To get to the appellate level--in this context, the ``mansion''
of the criminal justice system--victims first must pass through
the ``gatehouse''--the trial court [see footnote 174 in my
prepared statement]. That trip is not an easy one. Indeed, one
of the main reasons for the Amendment is that victims find it
extraordinarily difficult to get anywhere close to appellate
courts. To begin with, victims may be unaware of their rights
or discouraged by prosecutors from asserting them. Even if
aware and interested in asserting their rights in court,
victims may lack the resources to obtain counsel. Finding
counsel, too, will be unusually difficult, since the field of
victims' rights is a new one in which few lawyers specialize
[see footnote 175 in my prepared statement]. Time will be
short, since many victims' issues (particularly those revolving
around sequestration rules) arise at the start of or even
during the trial. Even if a lawyer is found, she must arrange
to file an interlocutory appeal in which the appellate court
will be asked to intervene in on-going trial proceedings in the
court below. If victims can overcome all these hurdles, the
courts still possess an astonishing arsenal of other procedural
obstacles to prevent victim actions, as Professor Bandes' soon-
to-be-published article cogently demonstrates [see footnote 176
in my prepared statement]. In light of all these hurdles,
appellate opinions about victims issues seem, to put it mildly,
quite unlikely.
One can read the resulting dearth of rulings as proving, as
Professor Mosteller would have it, that no reported appellate
decisions strike down victims' rights. Yet it is equally true
that, at best, only a handful of reported appellate decisions
uphold victims' rights. This fact tends to provide an
explanation for the frequent reports of denials of victims'
rights at the trial level. Given that these rights are newly-
created and the lack of clear appellate sanction, one would
expect trial courts to be wary of enforcing these rights
against the inevitable, if invariably imprecise, claims of
violations of a defendant's rights [see footnote 177 in my
prepared statement]. Narrow readings will be encouraged by the
asymmetries of appeal--defendants can force a new trial if
their rights are denied, while victims cannot [see footnote 178
in my prepared statement]. Victims, too, may be reluctant to
attempt to assert untested rights for fear of giving a
defendant a grounds for a successful appeal and a new trial
[see footnote 179 in my prepared statement].
In short, nothing in the appellate landscape provides a basis
for concluding that all is well with victims in the nation's
trial courts. The Amendment's proponents have provided ample
examples of victims denied rights in the day-to-day workings of
the criminal trials. The Amendment's opponents seem tacitly to
concede the point by shifting the debate to the more rarified
appellate level. Thus, here again, the opponents have not fully
engaged the case for the Amendment.
Question 2. One of the rights enumerated by S.J. Res. 3 is the
right ``to reasonable notice of the rights established by this
article.'' You have written that this provision is necessary because
``Rights for victims are of little value if victims remain unaware of
them.'' [Prepared statement of Paul G. Cassell, Hearing before the
Senate Comm. on the Judiciary on S.J. Res. 44, 105th Cong., 2d Sess.,
Apr. 28, 1998 (S. Hrg. 105-798), at p. 40.] Aren't you in fact
advocating for a governmental duty to warn victims along the lines of
Miranda?
Answer 2. No. No one disputes the rights of criminal defendants to
information about governmental processes after charges have been filed.
For example, to my knowledge, no one argues against informing indigent
defendants of their right to court-appointed counsel at the court
arraignment. The Sixth Amendment's right to counsel requires a criminal
defendant be notified expressly of this right, typically by a judge in
court. See, e.g., Faretta v. California, 422 U.S., 806, 835 (1975). The
Miranda apparatus is controversial because it does not follow along
these lines of rights within court proceedings but rather extend rights
to criminal suspects even before they have been formally charged.
Moreover, these rights are extended to suspected lawbreakers in a
manner that makes it difficult for police to obtain voluntary
confessions, significantly harming law enforcement efforts to control
crime. In stark contrast, the Victims Rights Amendment does not extend
rights before the formal initiation of criminal charges. As a result,
it does not impair law enforcement efforts to solve crimes.
Question 3. As you know, Rule 615 of the Federal Rule of Evidence
authorizes courts to exclude witnesses from the courtroom so that they
cannot hear the testimony of other witnesses. Rule 615 was amended last
year to create an exception for persons authorized by statute to be
present. It could have been amended to create an exception for victims.
In, your opinion, would such an amendment (A) be effective in
guaranteeing victims the right to attend trials, and (B) provide a
clear and visible test of whether a statutory/rule approach can work?
Answer 3. The recent amendment of rule 615 is an interesting
illustration of the delays in effectively implementing victims rights.
In 1990, Congress passed the Victims Rights and Restitution Act, more
commonly known as the Victims Bill of Rights, 42 U.S.C. Sec. 10606(b),
extending victims the right to be present at trial in certain
circumstances. This statute obviously superseded the blanket
authorization of Rule 615 to exclude victims who happened to be
witnesses. Yet it took the Federal Rules Committee a full eight years
to amend the Rule to reflect this fact. Even then, the amendment they
passed is a very narrow one.
Even if Rule 615 had been more broadly amended to create an
exception for victims back in 1990, it is improbable that this would
have been ``effective in guaranteeing victims the right to attend
trials'' in, for example, the Oklahoma City bombing case. As I
testified at greater length in my prepared statements submitted at the
hearing, in excluding the victim-impact witnesses, Judge Matsch
referenced not only the rules of evidence but also the common law and
the Constitution as a basis for removing them from the courtroom. Only
a constitutional amendment would clearly have invalidated the judge's
ruling.
You also ask whether an amendment to Rule 615 would provide a
``clear and visible test'' of whether a statutory approach could work.
It would provide a test, no less than the 1990 Victims' Bill of Rights
(among other enactments) provided a ``clear and visible'' test. Of
course, that 1990 test (among others) demonstrated that the statutory
approach to victims rights is not fully effective.
Question 4. As I understand it, Utah Rule 615, which gives victims
``an absolute right to attend trial, provided that the prosecutor
agrees,'' was left unchanged when in the mid-1990's legislation
implementing the Utah's Victims' Rights Amendment was enacted. I
believe you were very involved in that legislative effort as Chair of
the Utah Council of Victims Constitutional Amendment Committee.
In your article entitled ``Balancing the Scales of Justice'' that
appeared in the 1994 Utah Law Review, you defended the language in Utah
Rule 615 concerning agreement of the prosecutor, which was added at the
suggestion of the Statewide Association of Public Attorneys, by saying:
The prosecutors' concern was that there might be
circumstances in which, if a victim was present during trial, a
defense attorney might convince a jury that the victim's
testimony was irretrievably tainted from hearing the testimony
of other witnesses. Because prosecutors are in the best
position to make the tactical decision of when to prevent such
an attack by the defense, prosecutors were given the sole power
to exclude victim-witnesses. Such prosecutorial power generally
serves victims' best interests because effective prosecution is
good for victims.
Have you changed your mind about the impact of this provision on
effective prosecution? If so, as someone who has remained very active
in litigating and drafting provisions regarding victims' rights, have
you proposed legislation to rectify this obvious invitation to violate
victims' participatory rights?
Answer 4. This question appears to misunderstand one critical point
about the timing of passage of victims initiatives in Utah. Both the
Utah Victims Rights Amendment and its accompanying implementing
legislation were passed on the same day in the Utah legislature. Thus,
it is not clear what the question means when it says that this
provision ``was left unchanged when in the mid-1990's legislation
implementing the Utah's Victims' Rights Amendment was enacted.'' In
fact, this provision was put in at the suggestions of some prosecutors
to obtain the broad consensus support necessary to move the Utah
amendment through the Utah legislature.
Since the passage of that provision, the Utah Council on Victims of
Crime (on which I serve as the Chair of the Legislative Committee) has
not made a priority of changing this provision. Although the general
view of the our Council is (I believe) that victims deserve a blanket
right to attend trials, we have had so many other complaints' about
inadequate protection of victims' rights, particularly with respect to
enforcement of our existing rights, that we have focused our efforts on
these more pressing problems. Moreover, the Council is well aware of
efforts to pass the federal constitutional amendment, the passage of
which would obviate this peculiar glitch in Utah's efforts to extend
rights to victims.
Finally, you quote my law review article about the Utah provision.
I should point out that this article was a statement of the intentions
of the drafters of the Utah Victims Rights Amendment, see footnote * in
the article, not necessarily an explication of how a perfect victims
rights amendment should be drafted.
Question 5. Do you agree that Megan's law has been effective in
notifying communities regarding the whereabouts of registered sex
offenders? If so, why won't the same approach work with victims' rights
generally? If not, why isn't community notification included in the
proposed victims' rights constitutional amendment?
Answer 5. To take the last part of your question first, community
notification has not been included in the Amendment because the focus
has been on extending rights to individuals. As you know, the
Constitution generally protects the rights of persons, not communities,
and the victims rights amendment follows in that venerable tradition.
Turning to the first part of your question, I have the general
impression (although I have not fully studied all the ramifications of
Megan's laws) that the notification provisions have not been fully
effective in notifying communities about registered sex offenders. In
any event, even were these laws fully effective, they would not answer
questions about how to implement victims rights in the context of on-
going criminal proceedings. Megan's laws apply only when a convicted
offender is about to be released from prison. These laws thus shed no
light on how statutes work to protect victims during the pre-trial,
trial, and sentencing proceedings. Moreover, the focus of Megan's laws
is prevent future crimes by a particular offender. It thus sheds little
light on the Victims Rights Amendment, whose primary focus is on
protecting the rights of victims within a process that focuses on an
already-committed act. Finally, my sense is that criminal defendants
find the provisions of Megan's law notifying entire communities of past
sex offenses much more onerous than any of the provisions of the
Victims Rights Amendment.
Question 6. The proliferation of state laws and constitutional
amendments protecting victims rights is a relatively recent phenomenon.
Just last year, Mississippi, Montana and Tennessee approved state
constitutional amendments providing rights to crime victims, joining 29
other states that have adopted such amendments since 1982. Why
shouldn't we learn from the experience of the states before imposing a
single federal standard in this area?
Answer 6. Steve Twist and I have been asked similar questions, so
we have collaborated on our answer to give you the benefit of our
collective thinking.
We certainly agree that the country should learn from the
experience of the states in considering whether to pass a victims
rights amendment. As was explained at greater length at the hearing (in
Professor Cassell's prepared statement), on this point it is useful to
consider the result of a meeting recently convened by the Department of
Justice of those active in the field, including crime victims,
representatives from national victim advocacy and service organization,
criminal justice practitioners, allied professionals, and many others.
Their report--published by the Office for Victims of Crime and entitled
``New Directions from the Field: Victims' Rights and Services for the
21st Century''--concluded that ``[t]he U.S. Constitution should be
amended to guarantee fundamental rights for victims of crime.'' The
report went on to explain,
A victims' rights constitutional amendment is the only legal
measure strong enough to rectify the current inconsistencies in
victims' rights laws that vary significantly from jurisdiction
to jurisdiction on the state and federal levels. * * * Today,
many victims do not report crime or participate in the criminal
justice system for a variety of reasons, including fear of
revictimization by the system and retaliation by the offender.
Victims will gain confidence in the system if their rights are
recognized and enforced, their concerns for safety are given
serious consideration, and they are treated with dignity and
respect.
These impressionist conclusions find strong support in a December, 1998
report from the National Institute of Justice (NIJ) finding that many
victims are denied their rights and concluding that ``enactment of
State laws and State constitutional amendments alone appears to be
insufficient to guarantee the full provision of victims' rights in
practice.'' The report found numerous examples of victims not provided
rights to which they were entitled. For example, even in several states
identified as giving ``strong protection'' to victims rights, fewer
than 60 percent of the victims were notified of the sentencing hearing
and fewer than 40 percent were notified of the pretrial release of the
defendant. A follow-up analysis of the same data found that racial
minorities are less likely to be afforded their rights under the
patchwork of existing statutes.
Of course, at some point the time for learning passes and the time
for action begins, particularly because each day that passes in a
``learning'' process means denials of rights to victims of crime. We
believe the time for action on a federal amendment has come.
Question 7. (A) What is the state of the law regarding crime
victims' rights in each of the states that does not currently provide
such rights in its constitution?
(B) What efforts are being made in these states to support passage
of state constitutional amendments regarding crime victims' rights?
(C) What efforts are being made in these and other states to
increase the protection of crime victims' rights other than efforts at
constitutional change (state and federal)?
(D) In states with victims' rights constitutional amendments,
please provide examples of cases in which the constitutional rights of
victims came into conflict with the constitutional rights of the
accused.
Answer 7. Steve Twist and I have been asked similar questions, so
we have collaborated on our answer to provide you with the benefit of
our collective thinking.
(A) Providing precise information on the ``state of the law'' in
states without state constitutional amendments is difficult. We are
aware of no readily-available source that contains this information.
Indeed, this is one problem that victims face in attempting to assert
their rights. The treatise Professor Beloof and Professor Cassell are
working on will provide further information about the state of the law
around the country.
(B) The National Victims Constitutional Amendment Network (NVCAN)
supports state victims amendments. An information packet has been
prepared that is provided to persons interest in state amendments.
(C) Each year in the states, of course, various statutory changes
are made or proposed in laws concerning crime victims. For example,
this year in Utah, the Utah Council on Victims attempted to changes
procedures for collecting restitution. We were unsuccessful, but will
make further efforts next year. Again, we do not have available a
comprehensive listing of all such efforts around the country. The
National Center for Victims of Crime attempts to keep track of various
legislative initiatives pursued on behalf of victims, and they may be
able to provide you with more comprehensive information.
(D) See our answers to question 1, above, which provides detailed
information on this question.
Question 8. Would the proposed constitutional amendment make it
possible for victims to bring federal class actions against non-
complying state prosecutors and law enforcement authorities? Could such
class actions result in ``extensive lower federal court surveillance of
the day to day operations of State law enforcement operations,'' as the
Conference of Chief Justices has warned?
Answer 8. If a federal amendment passes, there is every reason for
believing that state prosecutors and law enforcement authorities will
protect the constitutional rights of victims that have been sanctioned
through the amendment process. Thus, the need for enforcement will
likely be limited to rare situations. Even in those rare situations,
class actions seem very unlikely.
The experience with the state amendments supports this conclusion,
as state class action suits have been quite rare, if not in fact
nonexistent. I am not aware of any such suit in Utah, for example. It
is also interesting that the Conference of Chief Justice provided no
example of the surveillance-of-day-to-day-operations concern actually
materializing under the state amendments through state class action
suits. The reason for the rarity of class action suits is probably due
to various factors, one of which is the requirement that such suits
show common issues of law and fact in a large number of cases. Denials
of victims rights not infrequently occur in situations were it can be
argued that such commonality is lacking. Moreover, it is unclear why
victims would pursue collateral litigation when they could avail
themselves of a prospective order directly in their own criminal case.
Section 3 of the proposed amendment confers ``standing'' on victims to
enforce their rights in their own criminal case. This will, no doubt,
be far and away the predominant way in which victims rights are
enforced rather than through the collateral class action approach.
Further information about this subject is also found in my answer
to the next question.
Question 9. What do you think is meant in Section 2 by the victim's
standing with respect to reopening proceedings or invalidating rulings
``to provide rights guaranteed by this article in future proceedings''?
Does this contemplate an injunction? If so, against whom?
Answer 9. As to the meaning of Section 2 of the Amendment, I can do
little to improve the detailed statement found in the Senate Report
105-409 at pp. 34-35, which lays out the meaning of the provision in
considerable detail. I think that this statement answers your question,
particularly with its description of the circumstances in which court
orders could be granted requiring the admission of victims to ``future
proceedings.'' As the Report suggests, these orders would not be in the
form of an injunction, but rather in the form of a court order in the
context of a particular case.
The exclusion of victims from proceedings in the Oklahoma City
bombing case will serve to illustrate this point. There the victims did
not seek an injunction against Judge Matsch. Rather, they sought
initially reconsideration by Judge Matsch of his ruling. When that was
unsuccessful, they sought a writ of mandamus from the Tenth Circuit
requiring Judge Matsch to admit the victims. (Because the procedural
vehicle for challenging Judge Matsch's ruling was unclear, the victims
also took an appeal from his order.) As recounted at greater length in
my testimony, these efforts to obtain a writ of mandamus were
unsuccessful because the Tenth Circuit concluded the victims lacked
``standing'' to challenge the order. Section 2 of the Amendment would,
in essence, reverse the Tenth Circuit's result by conferring standing
on the victims to seek such a writ.
Question 10. As you know, this Committee reported a resolution
identical to S.J. Res. 3 toward the end of the last Congress. The
Majority Report accompanying that resolution contended that,
``consistent with the plain language of [Section 3],'' the States would
retain the power to implement the amendment, including the power to
flesh out the contours of the amendment by providing definitions of
``victims'' of crime and ``crimes of violence.'' As I read Section 3,
only ``The Congress'' would have the power to implement the amendment.
Please discuss how much latitude you think that the States would have
in implementing this amendment and any necessary exceptions to it.
Answer 10. Steve Twist and I have both been asked similar
questions. We have collaborated on our answer to provide you with the
benefit of our collective thinking on this point.
We agree with the language of the Majority Report you quote. As the
Majority Report explained:
This provision [section 3 of the Amendment] is similar to
existing language found in section 5 of the 14th amendment to
the Constitution. This provision will be interpreted in similar
fashion to allow Congress to ``enforce'' the rights, that is,
to insure that the rights conveyed by the amendment are in fact
respected. At the same time, consistent with the plain language
of the provision, the Federal Government and the States will
retain their power to implement the amendment. For example, the
States will, subject to the Supremacy Clause, flesh out the
contours of the amendment by providing definitions of
``victims'' of crime and ``crimes of violence.''
S. Rep. 105-409 at 35.
The important point to distinguish here is between ``enforcement''
power under the Amendment and implementation power. The question posed
seems to conflate the two points, referring to a general congressional
power to implement the Amendment. While Congress will surely have the
power to implement the Amendment in the federal system, it does not
have this implementation power in the state system. Section 3 of S.J.
Res. 3 confers on Congress only the power to ``enforce'' the Amendment.
This enforcement power is not unlimited, as the Supreme Court's recent
decision in City of Boerne v. Florida, 117 S. Ct. 2157, 2163-64 (1997),
makes clear in the context of similar language found in the Fourteenth
Amendment. As a consequence, this grant of a congressional enforcement
power does not remove from the states their plenary power over their
criminal justice systems. Thus, we believe, as did the majority of this
Committee, that the states have considerable implementation power under
the Amendment.
Question 11. In his Additional Views accompanying S.J. Res. 44,
Chairman Hatch agreed with the Department of Justice that the standard
of a ``compelling interest'' for any exceptions to rights enumerated by
the proposed constitutional amendment may be too demanding and
inflexible. He wrote:
The compelling interest test is itself derived from existing
constitutional jurisprudence, and is the highest level of
scrutiny given to a government act alleged to infringe on a
constitutional right. The compelling interest test and its
twin, strict scrutiny, are sometimes described as `strict in
theory but fatal in fact.' I truly question whether it is wise
to command through constitutional text the application of such
a high standard to all future facts and circumstances.
[S.Rpt. 105-409, 105th Cong., 2d Sess., p. 45.] In your opinion, would
the ``compelling interest'' standard provide the necessary flexibility
when the proposed amendment (A) imposes costs on corrections officers
to transport incarcerated victims to court proceedings; or (B) is
invoked against true victims who are wrongly charged in domestic
violence cases?
Answer 11. (A) I do not see the ``compelling interest'' interest
standard as coming into play in circumstances involving the
transportation of incarcerated victims. Those victims do not have a
right to compel transportation to court proceedings, as explained in
greater length in my prepared testimony.
This objection [that victims might be able to compel the
state to transport them to court] appears to be contrary to
both the plain language of the Amendment and the explicit
statements of its supporters and sponsors. The underlying right
is not for victims to be transported to the courthouse, but
simply to enter the courthouse once there. As the Senate
Judiciary Committee report explains, ``The right conferred is a
negative one--a right `not to be excluded'--to avoid the
suggestion that an alternative formulation--a right ``to
attend''--might carry with it some governmental obligation to
provide funding * * * for a victim to attend proceedings'' [see
footnote 131 in my prepared statement]. The objection also runs
counter to current interpretations of comparable language in
other enactments. Federal law and many state constitutional
amendments already extend to victims the arguably more
expansive right ``to be present'' at or ``to attend'' court
proceedings [see footnote 132 in my prepared statement]. Yet no
court has interpreted any one of these provisions as
guaranteeing a victim a right of transportation and lodging at
public expense. The federal amendment is even less likely to be
construed to confer such an unprecedented entitlement because
of its negative formulation [see footnote 133 in my prepared
statement].
(B) It is not clear to me how the proposed Amendment could be
``invoked against'' victims of domestic violence who have been
wrongfully charged. The Amendment is designed to create rights for
victims rather than take them away from defendants. Thus, it is unclear
from the question how one should envision a wrongfully charged victim
of domestic violence--no less than any other criminal defendant--
finding the Amendment deployed against her.
Hypothetically, were such circumstances to arise, it is important
to recognize that, while the ``compelling interest'' standard is a
significant one, it is not an impossible one to meet. The example of
yelling ``Fire!'' in a crowded theater is widely-cited example, Schenck
v. U.S., 249 U.S. 47, 52 (1919) (Holmes, J.), but recent cases
specifically allow First Amendment exceptions to be made for compelling
reasons in a variety of circumstances. See, e.g., Burson v. Freeman,
504 U.S. 191 (1992) (prohibition of campaigning close to a voting booth
upheld); Osborn v. Ohio, 495 U.S. 103 (1990) (prohibition of child
pornography upheld). Accordingly, were the circumstances you describe
to materialize--involving the ``invocation'' of a victims rights
enactment against the type of person it was designed to protect--the
exceptions clause offers sufficient flexibility to cover it.
Question 12. The Majority Report (at p. 9) cites the case of
Virginia Bell, and criticizes the system for ordering restitution in an
amount that was ``arbitrary and utterly inadequate.'' Roughly, 90
percent of criminal defendants are indigent, yet the amendment would
seem to require judges, prosecutors and public defenders to calculate,
argue and decide upon the amount of a restitution order--an order that
would be completely unenforceable as to indigent defendants. Is this a
good use of the scarce resources in the criminal justice system?
Answer 12. Here again, I find myself in agreement with this
Committee. The Committee previously made findings on the need for
mandatory restitution in connection with the passage of the Mandatory
Victims Restitution Act. There the Committee explained that ``[i]t is
essential that the criminal justice system recognize the impact that
crime has on the victim, and, to the extent possible, ensure that [the]
offender be held accountable to repay these costs.'' S. Rep. 104-179 at
18. The Committee went on to explain why, even though many defendants
lack substantial resources, a system of mandatory restitution orders is
important. My impression is that these views on the desirability of
mandatory restitution were widely shared in Congress, as my
understanding is that the Mandatory Victim Restitution Act ultimately
was enacted with strong, bipartisan support.
Question 13. I am also concerned that the routine issuance of
unenforceable restitution orders could lead to citizen contempt for
government. If a defendant is indigent, the federal constitutional
right to restitution is meaningless, isn't it? It might also suggest
that the constitutional right should be against the government, so that
it will pay victims for the injuries inflicted upon them by criminal
defendants. Do you advocate extending the constitutional right to
guarantee compensation from government resources to pay restitution for
victims who were injured by indigent defendants?
Answer 13. These questions were, I believe, carefully considered by
this Committee when the Mandatory Victim Restitution Act was passed.
With respect to the possible indigency of a defendant, for example, the
Committee explained that ``this position underestimates the benefits
that even nominal restitution payments have for the victim of crime, as
well as the potential penalogical benefits of requiring the offenders
to be accountable for the harm caused to the victim.'' S. Rep. 104-179
at 18. Since the passage of the federal Mandatory Victim Restitution
Act, I am not aware of any evidence that it has lead to victim
``contempt'' of the federal courts.
Extending the proposed Victims Rights Amendment to require
government compensation to victims would extend the amendment beyond
the traditional bounds of the state victims amendments. The consensus
that appears to support S.J. Res. 3 might begin to dissipate were the
Amendment to be extended to such less charted terrain. Because the
existing provisions in S.J. Res. 3 are so important, I would not be in
favor of possibly jeopardizing their passage through such an extension
of the language of the Amendment.
Question 14. If I'm an indigent victim, and all it takes to
``exclude'' me from the proceedings is to refuse to pay my travel
expenses, would the proposed amendment give me a constitutional right
to bus fare?
Answer 14. No. See my answer to question 11(A), above.
Question 15. The International Association of Chiefs of Police
(IACP) has raised concerns that the proposed Victims' Rights Amendment
could ``allow delays in the swift administration of justice, or the
creation of civil or criminal liability for failure to protect the
victims' or their survivors' rights.'' Can you assure us that the
IACP's concerns are unfounded?
Answer 15. Yes. Steve Twist and I have both been asked similar
questions, so we have collaborated on our answer to give you the
benefit of our collective thinking on this point.
We do not have the IACP document to which this question refers
before us, so we will answer this question without reference to the
IACP. Indeed, we know that many law enforcement offices and chiefs of
police around the country support the Victims Rights Amendment. They
have good reason for doing so. The Victims Rights Amendment will not
delay justice. To the contrary, it contains a provision that should
speed up the administration of justice--the victims right to
``consideration of the interest of the victim that any trial be free
from unreasonable delay.'' Nor would it allow the creation of civil or
criminal liability for failure to protect victims. This concern appears
to have been raised with respect to an earlier version of the proposed
Amendment. S.J. Res. 3 does not contain a right of a victim to be
protected from a defendant. Instead, it contains specific rights
dealing with court consideration of the victims' interest in safety.
Moreover, section 2 of S.J. Res. 3 states that the amendment does not
create civil damages actions against state entities, so any concern
about new liability is unfounded.
Question 16. At the hearing, you suggested that victims' rights
under the proposed constitutional amendment should attach at the moment
that a suspect in the case has been charged with the crime. I am
concerned about the effect of naming a ``victim'' before the accused,
who must be presumed innocent, has been found guilty. This problem is
particularly acute in cases where the defendant claims self-defense? As
one commentator has written:
``[A] defendant in an assault case who claims he acted in
self defense is asserting that the act was not a criminal
offense, and, a fortiori, that there is no victim. Under these
circumstances, the state cannot give the complaining party the
rights of a 'victim' unless it presumes that the defendant's
justification is invalid and that an actual criminal offense
did occur. To allow the state to make such a presumption prior
to any judicial finding necessarily renders a defendant
presumptively guilty prior to trial and puts a jury in the
position of reconsidering a factual finding that the state has
already made.''
[Comment, ``Arizona Criminal Procedure After the Victims' Bill of
Rights Amendment,'' 23 Az. St. L.J. 831, 836.] Under the proposed
amendment, would victims' rights ``attach'' upon charging when the
defendant claims he acted in self-defense? What if the defendant does
not notice an intention to claim self-defense until weeks or months
after he or she is charged?
Answer 16. It is important here to be precise about the rights in
the Amendment to which one is referring. For example, the right of a
victim to speak at sentencing will not exist until a sentencing
proceeding takes place--that is, until a defendant has been convicted
by proof beyond a reasonable doubt and rejection of all defenses that
have been raised. on the other hand, for example, a victim's right to
be notified of court proceedings pertaining to a defendant will attach
once formal criminal charges are filed. Thus, once a defendant is
charged with criminal assault, a victim will be informed when future
public court proceedings concerning those charges will take place. It
is important to emphasize that charges do not proceed in our criminal
justice system unless a finding of probable cause has been made by a
judge. That determination is, of course, subject to challenge by the
defendant at trial, including the presentation of defenses such as
self-defense. The victims rights amendment will not interfere with the
opportunity to present such defenses. The victim, however, should be
notified of public court proceedings in which such defenses will be
presented and should be able to attend those proceedings.
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Prepared Statement of Douglas Beloof and Dean James Huffman on Behalf
of Northwestern School of Law of Lewis & Clark College
My name is Douglas Beloof, I am a visiting Professor of law at
Northwestern School of Law at Lewis & Clark College. I have written the
casebook, Victims in Criminal Procedure. I have also written The Third
Model of the Criminal Process: The Victim Participation Model 99 Utah
L.Rev. v. 4 (pending May 1999), which explores the value underlying
victim participation. I have devoted most of my professional career to
crime victims. I am joined in my support of the Crime Victims Rights
Amendment by the Dean of our law school, James Huffman.
The question before the Senate is whether or not the victim of
crime should obtain very modest constitutional rights in the criminal
justice system. While various rationales are articulated in opposition,
at bottom the opposition is that these minimal victim accommodations
are not valued highly by the opponents.
There are those who will rely upon any and all rationales to deny
crime victims modest constitutional rights. Distilling the opposition
to its essence, the opposition believes that the human dignity of crime
victims should not be valued highly enough to allow for modest victim
rights to co-exist with the criminal defendant's rights. To say that
statutes provide adequate protections for crime victims is to say that
victim rights just aren't important enough for constitutional status.
To put this argument in perspective, no one would suggest that we
should reduce a criminal defendant's rights from constitutional to
statutory status. If it is necessary to protect the dignity of the
defendant in the constitution, it is also appropriate to provide the
dignity of the crime victim with the same protection. This is because
the human dignity of both the criminal defendant and the crime victim
are worthy of constitutional recognition. I do not expect to change the
minds of those adamantly opposed to the future. The future is revealed
in an emerging reality of criminal procedure which includes the victim
in various stages of the criminal process. But, for those with an open
mind, consider that the real issue before the Senate is how highly the
Senate values the dignity of the crime victim. It is easy to find
rationales to deny crime victims these modest rights. But these
opposing rationales only rule when the human dignity of crime victims
is devalued and is valued below the human dignity of the criminal
defendant. The rationales used in opposition to the Crime Victim Rights
Amendment carry weight only when basic human rights of crime victims
are perceived as trivial compared to the rights of others. In
particular these opposing rationales carry weight when the human
dignity of crime victims is perceived as trivial compared to the human
dignity of criminal defendants.
Principles of federalism are but one example of a rationale used to
deny the human dignity of crime victims. But, principles of federalism
only interfere with enacting victim rights legislation if a lower value
is placed on civil rights for crime victims than civil rights for
others. No one would suggest that the First Amendment be repealed so
that the states, in the name of federalism, could experiment with
freedom of religion or freedom of the press. No one would suggest this
because fundamental civil rights are more highly valued than federalism
principles. To say that the principle of federalism, or any other
principle, trumps basic rights for crime victims is to devalue the
human dignity of crime victims. It is to say that while federalism
principles do not prevent other fundamental rights from attaining
constitutional status, crime victim rights are citizens whose dignity
ought not to be constitutionally recognized along with the human
dignity of the criminal defendant. It is to say that crime victims are
citizens who are not as worthy as criminal defendants. Of course, it is
not necessary for the states to ``experiment'' with basic human rights
before the Senate elevates such rights to constitutional status.
Experimentation was never intended for fundamental civil rights but for
less important matters. The Amendment is designed not to reduce the
dignity of criminal defendants, but to acknowledge at a constitutional
level the similar dignity of the crime victim.
If you come to the Crime Victims Rights Amendment with an open
mind, then ask yourself these questions: Should the victims of the
Oklahoma City bombing have had the accommodation of these modest
constitutional rights? Should the families of the security officers
killed while protecting Members of Congress have these modest rights?
Should your constituents have these modest rights when they are
victimized by crime? These questions are not intended to appeal to
emotion. Rather, they are intended to assist you in prioritizing
values. Prioritization of values is the fundamental exercise in
creating laws. When values are prioritized, can there be any question
that these fundamental civil rights and the values they represent are
worthy of constitutional status? Throughout my career as lawyer and law
professor, it has always been true that conservatives, moderates and
liberals have joined together to create constitutional rights for
victims in state constitutions. Professors Lawrence Tribe and Paul
Cassell, as persons from the left and right who support the Crime
Victim's Amendment, agree that victims rights are fundamental civil
rights. We agree and add our voices to those of Professors Cassell and
Tribe to urge you to support the Crime Victim Rights Amendment. We hope
you will see that a vote for the Crime Victim Amendment is a vote that
moves all of us farther down the road liberty and justice for all.
Prepared Statement of James E. Doyle
victims' rights constitutional amendment--senate joint resolution 3
As Attorney General of the State of Wisconsin, I wish to reaffirm
my support for a federal constitutional amendment which recognizes the
fundamental right of crime victims to have access to the criminal
justice process.
As a district attorney more than 20 years ago, I began one of the
first victim/witness programs in the nation. Since that time in 1978, I
have watched the development of rights and services for victims of
crime. I have seen prosecutors, judges and law enforcement officials
become more sensitive to the needs of crime victims.
This increased awareness came, not because leaders in the criminal
justice system were great visionaries, but because victims who were
treated badly by the system demanded better treatment. Victims,
advocates and family members who have fought for a voice in the
criminal justice process should receive our respect for what they have
endured and our thanks for enlightening us.
Due to the work of victims and their advocates, Wisconsin has a
long history of recognizing and addressing the needs of victims of
crime. One of the nation's first two victim/witness programs was
started in Milwaukee in 1975 and we enacted the nation's first victims'
bill of rights in 1980. Wisconsin was among the first states to amend
its constitution to recognize crime victims' rights in 1993.
I believe that prosecutors today at the local, state and federal
levels share a sincere appreciation for the critical role that victims
play in ensuring that the criminal justice system functions to protect
all of us. Those of us who are responsible for public safety should
treat crime victims with fairness, dignity and respect. It is the right
thing to do.
Respect for victims' rights also has improved our ability to fight
crime. When victims are treated well by the criminal justice system,
other victims are encouraged to report crimes and cooperate with law
enforcement officers and prosecutors.
I believe that most prosecutors strongly support victims' rights.
The major issues of concern to prosecutors have dealt with ensuring
that an amendment does not diminish the discretion of prosecutors or
their ability to carry out effectively their responsibility for
enforcing the law. I believe those concerns are more than adequately
addressed in S.J. Res. 3.
Wisconsin law, effective December 1, 1998, provides for greater
accountability and enforceability of our state statutory and
constitutional rights. In many respects, Wisconsin's crime victims'
rights amendment is broader than S.J. Res 3. They are similar in that
it is left to the legislature to define who are ``crime victims.'' Our
new law affords all rights to all crime victims (misdemeanors and
felonies) in both adult and juvenile proceedings. It applies to
business, corporate and governmental victims as well as natural
persons.
In addition to those rights contained in S.J. Res. 3, our state
constitution gives victims the right to confer with the prosecution,
the right to receive compensation and, importantly, requires that the
legislature provide remedies to victims. The guiding philosophy is that
government has a firm obligation to ensure that victims are adequately
informed about their rights, but that all victims should be afforded
the courtesy of deciding whether they wish to exercise those rights.
Among the more noteworthy provisions of this law is the creation of
a Crime Victims Rights Board that, among other powers, may seek the
imposition of a civil forfeiture for intentional violations of victims'
rights.
I raise this because many of the issues we debated in Wisconsin in
developing this legislation are similar to those that have been
discussed with respect to the federal amendment. What I think is quite
significant about the Wisconsin experience was that our prosecutors,
including those in our major metropolitan areas, supported effective
and meaningful enforcement of victims' rights. (Indeed, a principal
drafter of the new law was the then-president of our state prosecutor's
association.) In other words, please do not be misled into thinking
that meaningful victims' rights in anyway impedes effective law
enforcement.
In closing, I believe that we can achieve reasonable and workable
approaches to the implementation of constitutional rights for crime
victims. It is our duty to ensure that innocent victims of crime who
have already suffered at the hands of a criminal do not suffer again
because the criminal justice system does not care.
I strongly urge you to support S.J. Res. 3.
Prepared Statement of Marsha A. Kight
My name is Marsha Kight, I am Director of Families and Survivors
United, a Oklahoma based advocacy organization.
On April 19,1995 I lost my daughter, Frankie Merrell, in the worst
act of terrorism in the history of this country. A day of Infamy. In
the months that followed I found myself in a downward spiral. There was
no question--my life had to change if I was to continue to live.
I knew that, for myself I must find a voice to survive this tragic
loss. I became an advocate for victims' of the Oklahoma City bombing,
and through that experience, I exposed myself to the plight and pain of
so many others. For all of us who joined together in this way, the veil
of innocence was removed. Among other things, we determined that the
silence of the victims had to end.
In the years following the bombing, as that crime has been
prosecuted in the courts, I have learned that it is not sufficient for
the victims to speak just to anyone willing to listen, they must also
have the right to be heard in the justice system.
There have been millions of victims' before the Oklahoma bombing
and sadly, many are yet to follow. My hope is that the good which comes
from this tragedy will shine as a beacon of hope for all victims' of
crime, everywhere, and act as the catalyst for positive change in
American laws on victimization. That hope has yet to be realized.
Every time innocent people are murdered, it should and does affect
us all everytime an act of violence happens, every American loses some
sense of security and freedom.
How many more of our sons and daughters, brothers and sisters,
friends, spouses, mothers and fathers have to be slaughtered before we
unite and cease to tolerate violence in our country, or to be treated
disrespectfully by our government afterwards.
I have experienced the indignities of the justice system first
hand, for me this debate is not about abstract constitutional theory,
it is not about what the lawyers or the law professors or the experts
have to say. For me this debate is about my daughter and the voice that
I must now be for her.
The constitutional protections, so important in criminal
proceedings, were put in place by our founding fathers to ``provide for
the common defense and ensure domestic tranquillity.'' Civil liberties
were recognized as fundamental for everyone in establishing this
nation.
On a June 1996 morning, Judge Richard P. Matsch informed family
members and survivors, who were seated in his courtroom, that they had
the lunch hour recess to decide whether or not they would remain as
observers of the trial, either in the Denver courtroom or in Oklahoma
City on the closed-circuit television, or be impact witnesses during
the penalty phase of the trial, if McVeigh was found guilty. For
victims', who had lost their loved ones and survivors, this was a
shocking, painful event and yet another victimization this time by the
judicial process.
Although a grueling decision like this normally requires very
careful thought, we were given no time. Every family member and
survivor present tearfully made his or her choice that noon hour. Many,
who had just arrived for the hearings, left in dismay, excluded from
the most important judicial process in their lives and in the history
of this nation.
I opted to remain and upon return to Oklahoma City began seeking a
way to reverse Judge Matsch's decision on behalf of families and
survivors, as well as all victims' of crime.
Paul Cassell, a Utah attorney and professor of law, and Bob Hoyt
and his associates at the Washington, D.C., law firm of Wilmer, Cutler
and Pickering took up our plight. They filed an emergency petition with
the Tenth Circuit Court of Appeals in Denver, Colorado, asking that the
court rescind Judge Matsch's order. Professor Cassell specifically
cited an act of Congress that permitted victims to observe court
proceedings without prejudicing their right to also speak at
sentencing. Without a hearing, the Appeals Court's three-judge panel
ruled that victims' did not have the right to be heard on this
violation of their rights, that they had no ``standing'' to even our
challenge to this cruel exclusion from judicial proceedings,
considered, much less vindicated.
We then filed an En Banc petition, asking that all judges in the
Tenth Circuit Court of Appeals review this decision. Supporting our
request for review were all the Attorney Generals in the Tenth Circuit,
49 members of Congress, and the Department of Justice. The Court
refused to even hear the case, once again, we were turned away.
Knowing the time constraints before the trial, the decision was
made by all concerned to take our case to the United States Congress.
In a non-partisan act, our President and this Congress took a giant
step toward the fair treatment of victims' by enacting the ``Victims'
Clarification Act of 1997.''
We returned once again to the courts and asked that Judge Matsch
rescind his Order, however, incredibly he left open the possibility
that victims' may still be excluded during the sentencing phase if they
choose to remain in the courtroom throughout the trial. He said that
there may be a Constitutional defect in the new law and that our
hearing the trial testimony may improperly influence the impact
testimony of some individuals, but the time to hear these challenges
would come after the conviction, if there was one.
Because of this cloud over his ruling, on April 4, 1997 we filed
another motion seeking clarification, stating that ``the victims'
impact witnesses continue to face the exclusion of their impact
testimony, or remaining eligible to testify but not being able to
observe the trial.'' The prosecutors advised the family members,
``notwithstanding our new law, victims' should still stay out of the
trial if they want to be heard at sentencing, if there is a
conviction.''
The prosecution team told me that, under the current rules, that I
was ineligible to be an impact witness because I am a member of a
minority group, those who oppose the death penalty.
If a Constitutional Amendment had already been passed, I could have
accepted an implementation statute limiting the number of impact
witnesses, since 2,500 of us qualified as victims' of this crime. I
could also accept that I might not win a random drawing to speak. What
I could not accept is some ideological, religious, or philosophical
test that automatically excluded me from speaking.
The victims' right to be heard must be made as sacred as the
defendant's right to counsel, and must be protected as zealously as the
accused right to remain silent.
Indeed, we cherish the constitutional protections for the accused,
to ensure that all participants in the criminal justice system perform
their duties honorably, ethically, and in accord with the highest
standards. We also support the ideal that no one should be convicted of
a crime unless that conviction is backed up with proper evidence,
obtained in full compliance with the rules of criminal procedure.
But we have learned from experience that these protections for
defendants must be balanced with constitutional considerations for the
rights of victims', their families and representatives, to fully
participate in each and every stage of the justice process through the
investigation, indictment, bail, motions, trial, sentencing, appeals
and parole.
Society, itself, is harmed by violent crime, through assaults on
the peace, dignity and good order of its people. Only the direct
victims' of a criminal act can testify to both the physical and
emotional pain caused by such an act. Just as defendants have the right
to introduce mitigating circumstances at sentencing and parole
hearings, victims, too, must have the right to share the impact of the
crime on their lives with presiding officials.
The right of victims' to present impact statements at all
appropriate stages of the judicial process must be absolute. Never
before, in the history of our country, have so many been so negatively
impacted as victims, of ever increasing violent crime. And even if the
annual roster of new victims is declining, it is well to remember that
they join a huge number of other victims, whose wounds have not healed.
Crime Victims' are liberals and conservatives, rich and poor, for
and against the death penalty, vengeful and forgiving, weak and strong,
black, white and every color between and none of us should be barred
from speaking as a result of our views or social status.
I do not take lightly the idea of advocating an amendment to the,
U.S. Constitution. I am aware of the fact that this country has seen
fit to add only twenty-seven such amendments since its inception a
little over 200 years ago. But never before, in the history of our
country, has violent crime been so pervasive, and never before, in the
history of our country, have so many victims, been impacted by such
horrific crimes.
I have been saddened, confused and hurt by my experience, with the
criminal justice system which seems to defend itself by sending
conflicting messages to victims'.
Now is the time for all of us to make certain that the voices,
their experiences and the presence of the victims' are given legitimate
standing in every Court, on every level, throughout America. The only
way to guarantee that is by enforceable and meaningful rights enshrined
in the U.S. Constitution.
It now falls upon Congress to interpret the conflicting messages
and suggested legal theories, in a manner consistent with securing the
blessings of liberty upon us and our descendants. And, in a manner that
provides equal protection to the innocent, as has been and is applied
to the protection of the accused.
Let me say, the hole in my heart remains unfilled and will always
be open, but your actions may help give me, hope. I ask you if not the
Oklahoma City bombing what will it take to bring about change? Or maybe
the question is * * *. Who's next? Possibly someone you love or your
child?
______
Let Victims' Rights Ring Across America
Marsha Kight
April 19, 1995, was the worst attack of terrorism in the history of
this country. Its target was the U.S. government, but instead it
shattered innocent lives. I lost my daughter, Frankie Merrell, and my
five-year-old granddaughter, Morgan, lost her mother. In the months
that followed I found myself in a downward spiral. There was no
question my life had to change if I was to continue to live.
I knew that, for myself, I must find a voice to survive this tragic
loss. I became an advocate for victims of the Oklahoma City bombing,
and through that experience, I exposed myself to the plight and pain of
so many others. For all of us who joined together in this way, the veil
of innocence was removed. Among other things, we determined that the
silence of the victims had to end.
This book has been our effort to act on that belief, to put our
memories into words. I am proud of our collaborative efforts to give
voice to our pain. But in the years following the bombing, as that
crime has been prosecuted in the courts, I have learned that it is not
sufficient for the victims to speak to anyone willing to listen, they
must also have the right to be heard in the justice system.
There have been millions of victims before the Oklahoma bombing
and, sadly, many are yet to follow. My hope is that the good which
comes from this tragedy will shine as a beacon of hope for all victims
of crime everywhere, and that it will act as the catalyst for positive
change in American laws on victimization. That hope has yet to be
realized.
Every time innocent people are murdered, it should and does affect
us all. Every time an act of violence happens, every American loses
some sense of security and freedom.
How many more of our sons and daughters, brothers and sisters,
friends, spouses, mothers, and fathers have to be slaughtered before we
unite in an effort to stop violence in our country, and the
disrespectful ways in which our government treats victims afterward?
The constitutional protections, so important in criminal
proceedings, were put in place by our founding fathers to ``provide for
the common defense and ensure domestic tranquility.'' Civil liberties
were recognized as fundamental for everyone in establishing this
nation.
On a June 1996 morning, Judge Richard P. Matsch informed family
members and survivors who were seated in his courtroom that they had
the lunch-hour recess to decide whether or not they would remain as
observers of the trial, either in the Denver courtroom or in Oklahoma
City on the closed-circuit television, or be impact witnesses during
the penalty phase of the trial, if McVeigh was found guilty. For the
victims, who had lost their loved ones, and the survivors, this was a
shocking, painful event and yet another victimization--this time by the
judicial process.
Although a grueling decision like this normally requires very
careful thought, we were given no time. Every family member and
survivor present tearfully made his or her choice that noon hour. Many,
who had just arrived for the hearings, left in dismay, excluded from
the most important judicial process in their lives and in the history
of this nation.
I opted to remain in the courtroom as an observer, but upon my
return to Oklahoma City I began seeking a way to reverse judge Matsch's
decision on behalf of families and survivors, as well as all victims of
crime.
Paul Cassell, a Utah attorney and professor of law, and Bob Hoyt
and his associates at the Washington, D.C., law firm of Wilmer, Cutler
and Pickering took up our cause. They filed an emergency permit with
the Tenth Circuit Court of Appeals in Denver, Colorado, asking that the
court rescind judge Matsch's order. Professor Cassell specifically
cited an act of Congress that permitted victims to observe court
proceedings without prejudicing their right to also speak at
sentencing. Without a hearing, the Appeals Court's three-judge panel
ruled that victims did not have the right to be heard on this violation
of their rights, that we had no ``standing'' to even have our challenge
to this cruel exclusion from judicial proceedings considered, much less
vindicated.
We then filed an En Banc petition, asking that all judges in the
Tenth Circuit Court of Appeals review this decision. Supporting our
request for review were all the attorneys general in the Tenth Circuit,
forty-nine members of Congress, and the Department of Justice. The
court refused to hear the case. Once again we were turned away.
Knowing the time constraints before the trial, the decision was
made by all concerned to take our case to the United States Congress.
In a nonpartisan act, the president and the Congress took a giant step
toward the fair treatment of victims by enacting the Victim Allocution
Clarification Act of 1997.
The victim's right to be heard must be made as sacred as the
defendants right to counsel, and must be protected as zealously as the
accused's right to remain silent.
Indeed, we cherish the constitutional protections for the accused,
to ensure that all participants in the criminal justice system perform
their duties honorably, ethically, and in accordance with the highest
standards. We also support the ideal that no one should be convicted of
a crime unless that conviction is backed up with proper evidence,
obtained in full compliance with the rules of criminal procedure.
But we have learned from experience that these protections for
defendants must be balanced with constitutional considerations for the
rights of victims, their families and representatives, to fully
participate in each and every stage of the justice process: through the
investigation, indictment, bail, motions, trial, sentencing, appeals,
and parole.
Society itself is harmed by violent crime, through assaults on the
peace, dignity, and good order of its people. Only the direct victims
of a criminal act can testify to both the physical and emotional pain
caused by such an act. Just as defendants have the right to introduce
mitigating circumstances at sentencing and parole hearings, victims,
too, must have the right to share the impact of the crime on their
lives with presiding officials.
The right of victims to present impact statements at all
appropriate stages of the judicial process must be absolute. Never
before in the history of our country have so many been so negatively
impacted as victims of ever-increasing violent crime. And even if the
annual roster of new victims is declining, it is wise to remember that
they join a huge number of other victims whose wounds have not healed.
Crime victims are liberals and conservatives; rich and poor; for
and against the death penalty; vengeful and forgiving; weak and strong;
black, white, and every color in between--none of us should be barred
from speaking as a result of our views or social status.
I do not take lightly the idea of advocating an amendment to the
U.S. Constitution. I am aware of the fact that this country has seen
fit to add only twenty-seven such amendments since its inception a
little over two hundred years ago. But never before in the history of
our country has violent crime been so pervasive, and never before have
so many victims been impacted by such horrific crimes.
I have been saddened, confused, and hurt by my experiences with the
criminal-justice system, which seems to defend itself by sending
conflicting messages to victims.
Now is the time for all of us to make certain that the voices, the
experiences, and the presence of the victims are given legitimate
standing in every court on every level, throughout America. The only
way to guarantee that is by enforceable and meaningful rights enshrined
in the U.S. Constitution. I call upon each person who reads this book
to contact their members of Congress and ask them to support this
amendment. If not the Oklahoma City bombing, what will it take? The
death of your loved one?
______
Prepared Statement of Marsha A. Kight in Response to the Testimony of
Beth A. Wilkinson
My daughter, Frankie Merrell, was murdered in the Oklahoma City
bombing, and in tribute to her and all the others, I founded Families
and Survivors United, which took a leading role in advocating for the
victims and survivors before and during the trials which followed. This
is how I first came to meet Beth Wilkinson.
Having attended every day of the McVeigh trial, I came to regard
Beth Wilkinson as the most effective advocate on the prosecution team.
More than that, I and others trusted her to bring the victims'
perspective into the courtroom, and she lived up to that trust. So, I
believe that her statement before the Judiciary Committee today is from
the heart--that she really believes that if our Victims Rights
Amendment were in place, it might have jeopardized a very basic right--
the ``right of the just conviction of the guilty,'' as she puts it.
But she is wrong. As she describes so well, the prosecution team
worked hard to earn our trust, and for the great majority of the 2,000-
plus of us who were designated victims under the law, we gave them our
trust. But on the one tactical issue she says argues against the
Amendment, the prosecution team chose not to trust us for the reasons
she describes, and in the process, that team broke both our trust and
the law.
She claims that, had the Amendment been in place, its right for
victims to be heard before a plea bargain is accepted might have harmed
the prosecution. Specifically her suggestion that might have persuaded
the judge to not accept the guilty plea of Michael Fortier--and thus
might have jeopardized the eventual conviction of Timothy McVeigh and
Terry Nichols. There are three things wrong with this conjecture.
First, Michael Fortier's testimony was not crucial to either
conviction, as several jurors later made clear to me.
Second, had the Justice Department taken us into its trust on the
usefulness of the Fortier plea, the great majority of us would have
reciprocated that trust and encouraged the judge to accept the plea. I
think from everything else Beth Wilkinson describes about the trust-
building between the prosecution and the victims confirms this belief.
We were not blind sheep, willing to accept everything the prosecutors
said was so--we were, most of the time, informed citizens who were
persuaded by the prosecutors' reasoning. Beth Wilkinson as much as
admits this when she notes that the victims overwhelming asked for a
provable and sustainable case against the guilty.
And third, the prosecution team's mistrust of us over the Fortier
plea agreement was so great that it chose not to notify us over the
hearing in which the plea was offered, and it chose not to confer with
any of us beforehand about the plea--both of which were in violation of
existing federal law.
So when Beth Wilkinson says that statutory reform will meet our
just demands, we must ask, what happened to the statutes already on the
books?
I am increasingly persuaded that the most formidable enemy of crime
victims' aspirations for getting justice under our Constitution are
criminal Justice officials--even well-meaning ones like Beth
Wilkinson--who believe that only government lawyers know best. Her
testimony is in fact Exhibit A in the case for the Amendment because it
is the voice of a superior government extending handouts as an act of
grace, not protecting legitimate rights of a free people. She says that
the ``concerns'', of the victims must be balanced with the ``need for a
just trial,'' as though these important values were somehow in
conflict, and that only the government knows how to achieve this goal.
I cannot tell you how these words hurt me; they confirm my worst
fears about the treatment of victims in our justice system and how
nothing will change without constitutional rights.
It is painfully obvious to me that she thinks of us as mere
meddlers who must be kept out of this important government business for
fear that we might break something. Beth Wilkinson may believe that she
``grew to understand my grief first hand,'' but clearly she does not.
For me and so many of our families our grief was profoundly extended
when our government minimized and discounted our interests by refusing
to consult with us about this important development early in the case.
For example, consider the point Beth Wilkinson makes about grand
jury secrecy. She says, ``Due to the secrecy rules of the grand jury,
we could not explain to the victims why Fortier's plea and cooperation
was important to the prosecution of Timothy McVeigh and Terry
Nichols.'' Under existing federal law, however, courts are authorized
to enter appropriate orders allowing for the disclosure of grand jury
information in advance of a court proceeding. It apparently did not
even occur to her then, nor does it today, to have sought such a court
order for disclosure. Nor is it clear that such an order would even
have been necessary, as surely there would have been ways to explain
the circumstances to the victims without going confidential grand jury
matters.
Perhaps most disturbing of all to me is Beth Wilkinson's assertion
that the Victims Rights Clarification Act of 1997 ``worked''--no
victims were precluded from testifying.'' In fact, I was precluded from
testifying in the sentencing phase of the trial. As she is well aware,
I very much wanted to be a penalty phase witness. But because of my
philosophical beliefs in opposition to capital punishment, I was not
allowed by the government prosecutors to testify. Clearly the statute
did not work for me.
In addition, a number of victims lost their right to attend the
trial of Timothy McVeigh because of legal uncertainties about the
status of victims' rights. As I testified before the Senate Judiciary
Committee in 1997, Judge Matsch rejected a motion made by a number of
us to issue a final ruling upholding the new law as McVeigh's trial
began. His reluctance led the prosecution team (including Beth
Wilkinson) to tell us that, if we wanted to give an impact statement at
the penalty phase, we should seriously consider not attending the
trial. Some of the victims on the prosecution's penalty phase list
followed this pointed suggestion and forfeited their supposedly
protected right to attend McVeigh's trial. Our lawyers also sought
further clarification from the judge (unsuccessfully), but had to do so
without further help from the prosecution team. The prosecutors were
apparently concerned about pressing this point further because the
judge might become irritated.
Beth Wilkinson urges the Congress to ``consider statutory
alternatives to protect the rights of victims.'' While she says that
she opposes the Victim's Rights Amendment in its ``current form,'' the
context of this statement makes it clear that she opposes any
constitutional rights for crime victims. She concludes with the
following prescription: ``We must educate prosecutors, law enforcement
and judges about the impact of crimes so that they better understand
the importance of addressing victims' rights from the outset.'' But the
truth is that there will be no real rights to address, as my experience
makes clear, unless those rights are enshrined in the United States
Constitution. Only then will victim's rights be meaningful and
enforceable.
Prepared Statement of Anne McCloskey
The Maryland Coalition Against Crime supports passage of S.J. Res.
3 because it will provide meaningful and enforceable rights for crime
victims. Just as the accused defendants' rights are ensured by the
United States Constitution, crime victims also must be guaranteed
certain basic rights under this fundamental law of our country. A
victims' rights amendment to the Constitution is vital to establish
balance in our criminal justice system. Nothing in this amendment
diminishes the rights of the accused. It simply allows victims access
to information and limited participation in the criminal justice
system.
Crime victims throughout our country should be allowed consistent
rights in the judicial process. At this time, 32 states have passed
constitutional amendments that articulate victims' rights in various
ways. While the plight of crime victims has improved through these
efforts, there is no unifying law that would treat all these victims in
a fair manner. In fact, 18 states provide no constitutionally protected
rights for crime victims. Only through the passage of a U.S.
Constitutional Amendment can we be sure that all crime victims are
guaranteed the same rights.
In 1994, Maryland voters overwhelmingly approved a comprehensive
Constitutional Amendment for crime victims' rights. I co-chaired the
coalition of victims' rights organizations that campaigned for eight
years for this amendment. During that time, I became very knowledgeable
about the benefits and the problems with various proposals. Opponents
argued that defendants would be denied rights; the justice system would
be bogged down; appeals would proliferate; it would be too costly to
the state. I am pleased to say that after four years of implementation
none of the dire predictions has come to pass. The amendment works, not
only for the victims, but for the benefit of society and the criminal
justice system.
Our country can no longer continue to deny basic rights to so many
of its citizens. MCAC urges you to support S.J. Res. 3 and provide a
framework for all states to utilize in protecting crime victims'
rights.
Prepared Statement of Karolyn V. Nunnallee
People victimized by drunk driving crashes too often get hit with a
cruel double whammy. First, they lose loved ones who do not survive
and/or they themselves suffer injuries that range from minor to
disabling. Then, when their cases get to the courthouse, they learn
that they have far fewer guaranteed rights than the accused drunk
driving offenders.
Consider how Marilyn Mathis must have felt after her husband,
Minister, was killed by a drunk driver. Marilyn felt the last thing she
could do to honor her husband was to give a victim impact statement at
the trial. ``I wanted to let the court know how lost our family was
without him,'' said Marilyn. ``I was astounded, then sad, then angry
when the defense attorney asked the judge to keep me out of the
courtroom during the trial. The judge acted as if he had no choice
since the defense attorney asked for it. So, I sat outside, upset and
alone. Because of my continual pleading with the prosecutor to allow me
in, she did arrange for me to address the jury, but only after the
offender had been sentenced.''
Marilyn's story poignantly captures the plight of surviving drunk
driving victims. As of March 1997, 32 states have victims' rights
constitutional amendments to ensure that victims have rights throughout
the judicial process. Forty-eight states have enacted victims' bills of
rights. However, the U.S. Constitution includes rights for defendants
and none for victims, leaving them seriously shortchanged.
Even in states with strong victims' bills of rights and state
constitutional amendments, a substantial number of victims are denied
their rights, according to survey research funded by the National
Institute of Justice, U.S. Department of Justice and conducted by
National Victim Center in spring 1997. The survey showed that a
majority of victims--63.3 percent in states with ``strong'' victims'
rights laws and 74.5 percent in ``weak'' states--are not informed of
the offender's bail release.
In strong states, only half the victims whose cases concluded in a
plea agreement are being informed of negotiations, although prosecutors
are required by law to consult with victims in advance. One-fourth of
the victims in these so-called strong states are not given the
opportunity to present a victim impact statement at sentencing.
In addition to disturbing research findings like these, there is
abundant anecdotal evidence that victims are not receiving their day in
court. Stories like the saga of Sue Phillips of Louisiana are unfolding
every day in towns across America and illustrate how easily victims'
rights can be violated in the judicial process. When a drunk driving
crash left Sue Phillips and her family injured, the defendant was
charged with a fclony. At the sentencing hearing, the judge denied
Sue's request to give her victim impact statement even though the state
Victims' Bill of Rights guaranteed her the right to do so. The judge
cited his ``busy docket'' as the reason for denying her request.
Victims of all crimes experience these injustices on a daily basis.
The infamous Oklahoma City bombing case victimized hundreds of people.
The trial court judge, Richard Matsch, ruled that victims would not be
allowed to attend the trial if they wished to present a victim impact
statement at sentencing. The Tenth Circuit Court of Appeals upheld the
trial court, saying that victims had no legal standing to assert their
right to be present and that the government could not enforce that
right by appeal or by seeking a mandatory order. Shortly after,
President Clinton signed a federal bill that had been overwhelmingly
passed by both the Senate and the House allowing victims whose only
testimony would be impact statements to attend the trial. Still, Judge
Matsch ruled ambiguously, including the fact that those who wished to
give a victim impact statement would be subject to voir dire.
It will take an amendment to the U.S. Constitution for crime
victims to have their say in court and every other room in the
courthouse where decisions are made daily about their cases. The U.S.
Constitutional Amendment for Victims Rights is now pending before
Congress. In late 1996, Senators John Kyl (R-AZ) and Dianne Feinstein
(D-CA), introduced the federal amendment in the Senate and Congressman
Henry Hyde (R-IL) introduced it in the House. Constitutional protection
for victims is not a partisan issue. It has support on both sides of
the aisle on Capitol Hill. Also, it was supported in both political
party platforms and by both Presidential candidates in 1996.
``Participation in all forms of government is the essence of
democracy,'' said President Bill Clinton when he announced his support
for the Victims Federal Constitutional Amendment in June 1996,
``Victims should be guaranteed the right to participate in proceedings
related to crimes committed against them,'' said the President.
``People accused of crimes have explicit constitutional rights.
Ordinary citizens have a constitutional right to participate in
criminal trials by serving on a jury. The press has a constitutional
right to attend trials. ``All of this is as it should be. It is only
the victims of crime who have no constitutional rights to participate,
and that is not the way it should be. When someone is a victim, he or
she should be at the center of the criminal justice process, not on the
outside looking in.''
The Victims' Rights Constitutional Amendment was reintroduced at
the opening of the 106th Congress. If passed by a simple majority in
each committee, the amendment should reach the floor or both chambers
in 1999. If passed by a two-thirds majority in both the House and the
Senate, it will go to the states for ratification. Three-fourths of the
state legislatures (38) must ratify it before the amendment becomes
part of the U.S. Constitution.
The journey from idea to law of the land has been long and arduous,
and it isn't over yet. It began in 1982 as a vision of Frank
Carrington, founder of Victims Assistance Legal Organization (VALOR),
Washington State Attorney General Kenneth Eikenberry and other members
of President Reagan's Task Force on Victims of Crime which published
its Final Report in December of that year.
Although some members of the task force were skeptical about it,
Eikenberry practically demanded that the report call for a sixth U.S.
constitutional amendment to create specific rights for crime victims,
foremostly the right to be informed of as well as present and heard at
criminal justice proceedings.
The next milestone came in 1984 when Mothers Against Drunk Driving
(MADD) and the National Organization for Victim Assistance brought
together leaders from key national organizations and grassroots self-
help advocacy groups. The purpose of the meeting was to share
information and insight on successful strategies for grassroots
activism and to explore ways to assist each other.
During an early plenary session, a vocal victims' rights advocate
put a spotlight on the Presidential Task Force's recommendation. Robert
Preston, President of Florida-based Justice for Surviving Victims
implored the victims' rights movement to take the idea seriously. The
next evening, about 30 advocates--including 10 from MADD--gathered
informally to strategize about the process of amending the federal
constitution.
After everyone returned home to their communities, this initial
group continued dialogue among one another, culminating in the November
1987 founding of the National Victims' Constitutional Amendment Network
(NVCAN). Bob Preston served as the coalition's first chair and Janice
Lord, who was then MADD's director of Victim Services, was the first
secretary.
The coalition decided the best strategy would be to first generate
support from the states for victims' rights. The coalition's specific
objective became ratification of state constitutional amendments for
victims' rights in 38 states--the number required to ratify a federal
constitutional amendment. Passage by the states would create a strong
foundation of support for federal reform.
NVCAN labored for the next decade to push through state amendments.
The National Victim Center became a repository for information about
amendment efforts throughout the country. Victims' rights advocates
were onto something powerful. In each of the 32 states where victims'
rights amendments have made it to a vote of the people, they have
passed by an overwhelming majority, receiving 80 to 90 percent approval
in most states.
By 1995, NVCAN decided it was time to move forward with the
proposed federal amendment. By directive of its national board of
directors, MADD, too, joined the federal push.
U.S. Attorney General Janet Reno, a staunch victims' rights
supporter, immediately supported the amendment. ``Let us make sure that
we give our victims the right to be, heard--not in some dispassionate
way in [only a written] impact statement, but in a courtroom if they
want to be heard, so that people can know what it's like to be a
victim,'' said Reno at a Candlelight Vigil for Victims in New York
City. ``Let us give them an opportunity to participate, to be there,
and to hold the criminal justice system accountable at every level.''
Reno has continued to be outspoken on the issue. ``Efforts to
secure victims' rights through means other than a constitutional
amendment have proven less than fully adequate,'' Reno testified before
the U.S. House Judiciary Committee in June 1997. ``Unless the
Constitution is amended * * * we will never correct the existing
imbalance in this country between defendants' constitutional rights and
the current haphazard patchwork of victims' rights.''
The proposed victims rights constitutional amendment is the only
constitutional amendment that the U.S. Justice Department and the
President currently support. Without a federal Constitutional
Amendment, victims will never be assured that their rights are balanced
with those of their offenders.
The time has come to balance the scales of justice to ensure that
crime victims are guaranteed a voice in the criminal justice process in
which they have become unwitting participants. The drafters of the
Constitution designed this document to help remove tyranny and control
over the powerless and to assure that all Americans would have. a voice
in the very system of government that could control their daily lives.
Our forefathers intended for the Constitution to be a living and
growing document. If this were not so, we would still have slavery
today, women would not have the right to vote and defendants in
criminal cases would not have the enumerated rights they enjoy today in
the criminal justice system. We do not seek to take away the rights
guaranteed to criminal defendants. We only seek to assure that our
Constitution protects the innocent victims of crime to the same degree
that it protects those who are accused of committing the crime.
All crime victims want is fairness, and as the late U.S. Supreme
Court Justice Potter Stewart observed, ``Fairness is what justice
really is.''
Prepared Statement of William T. Pizzi
Dear Senator Kyl:
I am writing in support of the Victims' Rights Amendment and have
enclosed with this letter the draft of an article that will appear in
the Utah Law Review explaining why I think such an amendment is needed.
I have also enclosed a second article published in the Stanford
Journal of International Law comparing the advantages that victims have
in the German trial system with the disadvantages victims have in our
trial system. I enclose this second article simply as background so
that those interested might understand why our trial system needs a
Victims' Rights Amendment.
i. introduction
The Austrian philosopher Ludwig Wittgenstein describing a certain
philosophical problem wrote that ``a picture held us captive. And we
could not get outside of it because it lay in the nature of our
language.'' \1\ I want to borrow his metaphor, specifically his claim
that a picture holds us captive and we have difficulty getting outside
it because I see running through American legal scholarship and
judicial opinions a picture of our trial system that holds us captive.
It is the picture of a trial as a two-sided contest between the state
and the individual.
---------------------------------------------------------------------------
\1\ Ludwig Wittgenstein, Philosophical Investigations 48e (G.E.M.
Anscombe, translator) (1953) (emphasis in original).
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The Victims' Rights Amendment is important because it challenges
our two-sided trial model and forces us to confront some difficult and
painful realities about our trial system that we have avoided for too
long. The Victims' Rights Amendment carries with it fonnal
acknowledgement that victims of violent crime have a stake in the trial
that is different from that of the general public or even the
prosecutor. One can see this most clearly in the first part of the
amendment providing that victims of a crime of violence have the right
``not to be excluded from any proceedings relating to the criime.'' But
it also is evident in other parts of the amendment, such as the section
giving victims of violent crimes the right to be heard on the merits of
any proposed plea bargain.
While much that is contained in the Victims' Rights Amendment has
already been enacted through state constitutional amendments as well as
state and federal statutes, recognition of the interests of crime
victims in the Constitution is important because it may encourage us to
rethink our trial system. In this article I want to use the Victims'
Rights Amendment to raise questions about our trial system and the
system's priorities. I think reexamination of our trial system is long
overdue. To help provide perspective on the treatment of victims in our
trial system, I will contrast with our system the treatment of crime
victims in other western trial systems.
ii. multi-sided criminal trials
The picture of criminal trials as two-sided has a powerful hold on
us. As a way of representing the fact that we have moved away from
system of private prosecution--like other western countries--to one in
which prosecutorial power is vested in a public official, I see nothing
wrong with thinking of criminal cases as two-sided. Normally our
criminal courts usually have two tables in the front of them, one for
the prosecution and one for the defense. Also we caption our criminal
cases ``State v. Jones'' or ``The People v. Jones'' which seems to
suggest a two-sided contest. But when this generalization about
criminal cases is put forward as if it were the metaphysical structure
of criminal cases in this country, it becomes inaccurate, artificial,
and confining. Hence the importance of the Victims' Rights Amendment.
When you examine the structure more closely, it quickly becomes
clear that there is no metaphysical constraint that demonstrates that
criminal cases have two and only two sides. Take the courtroom, for
example. The courtroom is set up for convenience, and there is nothing
to stop us from changing it to make it work better or to permit more
people to sit in the front of the courtroom. While usually we have two
tables, sometimes we put more in the front of the courtroom,
particularly when there are two or more defendants on trial. More
importantly, when there are two defendants, our system recognizes that
the interests of the defendants will almost always differ. The American
Bar Association Standards for the Defense Function state that because
``the potential conflict of interest in representing multiple
defendants is so grave,'' ordinarily a lawyer should decline to
represent more than one defendant in the same criminal case.\2\ Because
the potential conflict is so serious, some public defender offices have
a policy of never representing more than a single defendant in multiple
defendant cases.\3\
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\2\ American Bar Association, Standards for Criminal Justice, The
Defense Function, Sec. 4-3.5 (c) (1992).
\3\ See Gary Lowenthal, Joint Representation in Criminal Cases, 64
Va. L. Rev. 939, 950 (1978).
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But somehow it is easier to see divergent interests on the defense
side of a criminal case than on the prosecution side. Perhaps it is
because those supposedly on the prosecution side are masked with a
sweeping label, ``the state'' or ``the people.'' But what does it mean
to say that ``the state'' is opposed to the defendant? The prosecutor
is usually not even an employee of the state, but an employee of a much
smaller entity, be it a county, borough, parish or city. The police who
investigate the case may be employees of the same governmental unit,
but quite often they may be employees of a different geographical unit,
or even employees of the federal government. The prosecutor does not
represent the police and sometimes there are differences between the
police and the prosecution over the handling of a criminal matter
before trial and even at trial.
One example of differences between the police and the prosecution
becoming public occurred in the murder investigation of Jon Benet
Ramsey in Boulder. There have been indications throughout the
investigation that the police and the district attorney's officer were
having troubling cooperating.\4\ Eventually, one of the lead detectives
resigned from the investigation and submitted an angry resignation
letter that alleged that the district attorney's office was crippling
police efforts and compromising the case.\5\
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\4\ See Hector Gutierrez, Assistant DA apologizes to Boulder cops,
Rocky Mountain News, February 15, 1997 4A.
\5\ See Hector Gutierrez, Detective Blasts DA's Handling of Jon
Benet Ramsey Slaying, Pittsburgh Post Gazette, August 8, 1998, A4;
Detective Blasts DA's Handling of Jon Benet Ramsey Slaying in Thomas
Resignation Letter, Boulder Daily Camera, August 7, 1998, http://
www.insideboulder.com/extra/ramsey/1998/07thomle.html.
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More importantly, even if the investigators and the prosecutors are
employees of the same governmental unit, isn't it clear that the police
and the prosecutor ought to have different responsibilities in a strong
criminal justice system? It is certainly true that in a serious
criminal case that the police and the prosecution will want to see the
person who committed the criminal act convicted and sentence
appropriately. That will often be true of the trial judge as well, and
perhaps even of the defense attorney where the crime is particularly
horrendous. But each has a distinct professional role to play in the
system and they need to perform that role whatever their personal
feelings about the crime and what the desirable outcome of the criminal
case should be.
Yet when it comes to the police and the prosecutor our system tends
to see them as working together ``on the same side'' against the
defendant. But if the police are part of the prosecution team, who is
supposed to seek-out evidence at the crime scene that may be important
for the defense? In those cases in which the perpetrator may not be
apprehended for several weeks after the crime, the police must see
themselves as duty-bound to do a complete and thorough investigation
that considers possible exculpatory evidence as well as incriminating
evidence. When a criminal justice system falls to emphasize the need
for thorough and objective investigators, the results of an
investigation can more easily become slanted and biased against the
defendant. We should be shocked that a once-prestigious entity such as
the FBI laboratory began to shade its reports and distort its findings
to favor the prosecution.\6\ But it is not surprising that it would
occur in a system that often fails to distinguish between the police
and the prosecution. Instead of driving them closer together as our
system does and conceptualizing the police and prosecution as a single
entity, the ``state,'' which is trying to convict the defendant, our
system should encourage the police to see themselves as having
responsibilities independent of the prosecution of the case.
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\6\ Roberto Suro and Pierre Thomas, Justice Dept. Cites Failures Of
FBI Lab; Evidence Was Flawed In Several Major Cases, Washington Post,
April 16, 1997, A01.
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The relationship between the victim and the prosecutor presents a
similar situation to the police and the prosecutor. For starters, the
prosecutor doesn't represent the victim and cannot give the victim the
same advice that a private attorney might give. A victim may, for
example, want advice from the prosecutor as to whether she should meet
with the defense investigator who is trying to interview trial
witnesses. A private attorney representing the victim, who knows what a
good defense attorney can do at trial with even minor inconsistencies
in prior statements, would often advise the victim not to meet with the
investigator. But tempting as it may be to a prosecutor to give the
same advice, it would be unethical for a prosecutor to do so. The
American Bar Association Standards Relating to the Prosecution Function
state that it ``is improper for a prosecutor * * * to suggest to a
witness that the witness not submit to an interview by opposing
counsel.'' \7\
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\7\ American Bar Association, Standards for Criminal Justice, The
Prosecution Function, Sec. 3-3.1 (C) (1992).
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While the interests of the victim and the prosecutor will often
converge in many cases, there will sometimes be cases in which the
interests of the victim and the prosecutor may sharply diverge. This
will often reflect the fact that the victim's focus is on the
particular criminal case while a prosecutor often has to see the same
case in broader terms that may be influenced by limited resources,
prosecutorial priorities, and even political considerations. An obvious
example where some divergence would manifest itself would be a
relatively serious case where the prosecutor believes the chances of
conviction are not sufficiently high to merit prosecution while the
victim feels that the crime should be prosecuted even if conviction is
not likely. There is no right or wrong in this situation but rather
both the victim and the prosecutor are looking at the case from
different perspectives. A prosecutor these days usually has no choice
but to make difficult decisions about how limited prosecutorial
resources are to be invested. At the same time, a victim may not agree
with the prosecutor's priorities or the decision about the way that the
case involving the victim is to be handled.
Crime victims have often expressed frustration with our trial
system because they are to a considerable extent invisible in the
system.\8\ They have a legitimate interest in the way a criminal case
is handled, yet it has been a battle to get prosecutors, judges, and
defense attorneys to respect that interest. The Victims' Rights
Amendment represents formal acknowledgement that victims have a role in
the system that can be different from the prosecutor or the police.
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\8\ See, e.g., Steve Baker, Justice Not Revenge: A Crime Victim's
Perspective on Capital Punishment, 40 U.C.L.A. L. Rev. 339, 340 (1992)
(``The criminal justice equation does not include the relatives or
friends of victims.'')
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This is not to say that the interests of the victim should be
paramount to those of the prosecutor but the victim's interest should
be understood and considered before an important decision affecting the
victim is reached. A nice example is plea bargaining. The Victims'
Rights Amendment gives victims the right to be heard, if present, prior
to the acceptance of a negotiated plea.\9\ There will be cases in which
the victim is completely supportive of the proposed plea agreement and
may desire to tell this to the court. But there will be cases in which
the victim is strongly opposed to the plea agreement, perhaps because
the victim believes that the charge to which the defendant wishes to
plea guilty or the sentence to be imposed does not adequately reflect
the seriousness of the crime. It is important that the victim have the
right to be heard on the proposed plea bargain.
---------------------------------------------------------------------------
\9\ See S.J. Res. 44, Section 1.
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Permitting the victim to express opposition to the agreement
provides a check on plea bargains that do not serve the public
interest. But one suspects that in the vast majority of cases where the
victim is opposed to the proposed bargain, the prosecutor's view of the
public interest ought to lead to acceptance of the bargain by the
court. But even if it is a rare case in which the victim's opposition
to a plea agreement is likely to alter the proposed plea bargain, it is
still very important that the victim be heard. We have a criminal
justice system in which lawyers and judges spend a great deal of their
time talking to each other. But the system does it a very poor job of
listening to citizens, and that includes not only victims but
defendants as well. Sometimes it is easier to accept decisions with
which one disagrees if one feels that one's views have been heard and
have been considered before the decision was made. This is what the
Victims' Rights Amendment gives victims.
iii. victims in the courtroom
Defense attorneys understand that constitutional recognition of a
status for victims of serious crimes independent of the prosecutor has
a tremendous symbolic value and they don't want to see it accorded
victims. Gerald Lefcourt, a leading criminal defense attorney and then
president of the National Association of Criminal Defense Lawyers,
wrote an article in The Champion, the magazine of the NACDL, attacking
the Victims' Rights Amendment in extreme terms.\10\ One of the first
worries that he expresses is his concern that such an amendment ``would
give victims equal standing in what amounts to a place at their own
counsel table.'' \11\
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\10\ See Gerald B. Lefcourt, President's Column, Of Danger To All,
Of Benefit to None, The Champion, 5 (July 1998).
\11\ Id.
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I want to reply to this remark by considering his worry that
victims might be permitted to sit in the front of the courtroom at
their own counsel table. To Lefcourt, this seems so clearly wrong as to
need no further explanation for why it is wrong.
I think he is correct that the Victims' Rights Amendment might
encourage more states to rethink where the victim should be seated at
criminal trials but this is exactly the sort of question that we ought
to be thinking about. While it is rare for a state to permit victims to
sit in the front of the courtroom at criminal trials,\12\ it is not
unusual among western countries to find victims in the front of the
courtroom, even occasionally participating in the trial. In
Belgium,\13\ France,\14\ and Italy,\15\ victims have long had a right
to participate in the criminal trial on a rather equal basis with the
state's attorney and the defense attorney. One of the reasons why
victims often choose to participate at the criminal trial is that the
victim may be awarded civil damages at the criminal trial. It is
cheaper for the victim to join in the criminal case and seek damages
rather than later having to bear the expense of a separate civil case.
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\12\ See, e.g., Ala Code section 15-14-54 (``A victim of a criminal
offense shall not be excluded from court or counsel table during the
trial or hearing or any portion thereof conduct by any court which in
any way pertains to such offense. * * *''). This statute was upheld in
Pierce v. State, 576 So. 2d 236, 251 (Ala. Crim. App. 1990).
\13\ Christine Van Den Wyngaert, Belgium, 17-18, in Criminal
Procedure Systems in thE European Community (Christine Van Den
Wyngaert, editor) (1993).
\14\ R.L. Jones, Victims of Crime in France, 158 Justice of the
Peace & Local Government Law 795-96, December 3, 1994.
\15\ William T. Pizzi and Luca Marafioti, The New Italian Code of
Criminal Procedure: The Difficulties of Building an Adversarial Trial
System on a Civil Law Foundation, 17 Yale J. Int. L. 1, 14 (1992).
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Obviously, this is a different model from our country where civil
damages would have to be pursued separately from the criminal cases.
But my point is not that these countries are a model for us. But I use
these countries simply to point out that permitting some form of victim
participation in a criminal trial may seem radical to American lawyers,
but it is not at all radical among westem countries.
Another country with a somewhat different model of victim
participation at trial is Germany.\16\ Damages are not a possibility at
a German criminal trial so victim participation at trial is not
generally permitted, except for a small category of serious crimes.\17\
Among the crimes permitting such participation are murder, kidnapping,
and rape.\18\ Victims rarely wish to participate in the trial, feeling
that they can rely on the state's attorney and the judges to reach a
fair verdict and sentence.\19\ But the exception is sexual assault
where a high percentage of victims always wish to participate in the
trial.\20\ Victims feel they have a stake in the trial and want to be
present and be represented.
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\16\ See generally William T. Pizzi and Walter Perron, Crime
Victims in German Courtrooms: A Comparative Perspective on American
Problems, 32 Stan. J. Int. L. 37 (1996).
\17\ Id. at 54-55.
\18\ See StPO Sec. 395.
\19\ See William T. Pizzi and Walter Perron, supra note at 55, n.
76.
\20\ Id. at 59.
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That most sexual assault victims would wish to participate at trial
through counsel while victims of other serious crimes rarely wish to do
so should not be surprising. For one thing, the victim's character and
credibility is likely to come under a much more severe attack in a
sexual assault case. Often, for example, in acquaintance-rape cases the
attack on the victim includes the allegation that no crime ever took
place because the victim consented to have sex with the defendant. The
defense may attack the victim on almost every aspect of her testimony
in an attempt to suggest that she is lying and trying to convict the
defendant for corrupt reasons. Additionally, it is not unusual in such
cases for issues having to do with the prior relationship between the
victim and the defendant to be raised, which may mean delving into very
private events separate from the crime in question. When one considers
the nature of the crime and the likelihood that the victim may be ``put
on trial,'' it is easy to see why sexual assault victims in Germany
tend to see the trial as ``their trial'' and want to participate in the
trial through counsel.
If some continental countries think that it is appropriate for
victims of serious crimes to participate in criminal trials, why is the
Victims' Rights Amendment so controversial? Notice that the Victims'
Rights Amendment is very modest in what it provides victims with regard
to the trial. It gives victims no right of participation at trial, nor
even a right to sit in the front of the courtroom. In fact, it doesn't
even give victims ``a right to be present'' at the trial. Instead, it
provides victims only the right ``not to be excluded from any
proceedings relating to the crime.'' \21\ Presumably, this would allow
the victim of a violent crime who is a witness to resist a motion for
sequestration and remain in the back of the courtroom. Given the fact
that some states already exempt victims from sequestration orders and
permit them to remain in the courtroom at trial,\22\ what is being
sought with respect to trial for victims in the Victims' Rights
Amendment is very limited. And when one compares being able to remain
in the courtroom with the participatory role that victims have at trial
in the European countries just mentioned, the change proposed becomes
even more modest.
---------------------------------------------------------------------------
\21\ See S.J. Res. 44, Section 1.
\22\ See, e.g., Ariz. R. Crim. Proc. 9.3 (a) (1998); Ala. Rules of
Evid. R. 615 (4) (1998); Or. Evid. Code R. 615 (1998).
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iv. our ``adversary system''
In the previous section I described some European trial systems
that give victims a participatory role in the courtroom in some cases.
If those countries think it appropriate to recognize an active role for
victims in some criminal cases, why is the Victims' Rights Amendment so
wrong in thinking that the interests of victims of violent crime
deserve some formal recognition in our Constitution? I think that one
argument that American lawyers are likely to raise is that European
trial systems and our American trial system are fundamentally
different. Under the traditional dichotomy, we are supposed to have
``an adversary system'' and European countries are supposed to have
``an inquisitorial system.'' \23\
---------------------------------------------------------------------------
\23\ See Monroe H. Freedman, Our Constitutionalized Adversary
System, 1 Chapman L. Rev. 57, 84-85 (1998).
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I think this distinction has become blurred over time and that all
western trial systems are adversarial to a degree today.\24\ Obviously,
``to a degree'' means that there are considerable differences from
system to system, with some systems not very adversarial and others
more adversarial. To try to make this point, I want to turn to explore
briefly what it might mean when American lawyers say that our trial
system is ``an adversary system'' and that this is supposed to
distinguish our trial system from European trial systems.
---------------------------------------------------------------------------
\24\ I make this point at some length using the countries of the
Netherlands, Germany, Norway, and England in chapter five of William T.
Pizzi, Trial without Truth 89-116 (1998).
---------------------------------------------------------------------------
Recently, Professor Monroe Freedman has written an article in which
he argues that our adversary system is built into our Constitution.\25\
I think he is wrong in making that claim but I don't intend to dispute
that point here. What I want to do is use the definition he uses as a
basis for trying to understand what is special about an adversary
system as opposed to the supposedly inquisitorial systems on the
continent. He begins his article with the following definition: ``In
its simplest terms, an adversary system resolves disputes by presenting
conflicting views of fact and law to an impartial and relatively
passive arbiter, who decides which side wins what.'' \26\ Working with
this definition, which aspects of the definition distinguish American
trials from those that occur on the continent?
---------------------------------------------------------------------------
\25\ Monroe H. Freedman, Our Constitutionalized Adversary System, 1
Chapman L. Rev. 57 (1998).
\26\ Id.
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a. Hotly contested factual and legal issues
Surely, it is not the idea the presentation of conflicting views of
fact and law at trial as there are often hotly contested factual or
legal issues in all trial systems. To follow up with the acquaintance-
rape example from the previous section, such trials will often be
bitterly contested in any country and in any trial system, with the
victim insisting that she did not give consent and the defense
insisting that the victim consented and is not telling the truth.
Several years ago, I witnessed a rape trial in a courtroom in Freiberg,
Germany, where the victim, an admitted drug addict, claimed that she
had been raped by the two defendants.\27\ They in turn insisted that
she had agreed to have sex with them on the promise that they would
give her heroin the following day. The defendants and their lawyers
launched a major assault on the victim's credibility and her character.
They brought in witnesses who testified that the victim had prostituted
herself for heroin on past occasions. In each case the victim was
recalled to the stand to answer the allegations. It was a very bitterly
contested trial, yet it took place within a trial system that is
supposedly not an adversary system. In short, I don't think ``hotly
contested'' serves to distinguish among western trial system those that
are adversary systems from those that are not.
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\27\ See Pizzi and Perron, supra note at 63 n. 124.
---------------------------------------------------------------------------
b. Impartial and relatively passive judges
Perhaps the distinction lies in the fact that the trial takes place
before ``an impartial and relatively passive arbiter.'' The first part
of this element--that the judge be ``impartial'' draws no meaningful
distinction among trial systems as every western trial system wants its
factfinders, be they professional judges, lay judges, jurors, or some
combination thereof, to be impartial in the important task before them.
Article 14 of the International Covenant of Civil and Political Rights,
which has been ratified by all western countries, states that anyone
charged with a crime is entitled to a trial before ``a competent,
independent and impartial tribunal.'' \28\ All western countries hope
that their judges and factfinders are impartial.
---------------------------------------------------------------------------
\28\ International Covenent on Civil and Political Rights (adopted
December 19, 1966, entered into force March 23, 1976, 99 U.N.T.S. 171),
Sec. 14, 1.
---------------------------------------------------------------------------
The second part of this element--that the arbiter be ``relatively
passive'' does draw a distinction among western trial systems but the
distinction is not as clear as some might think. Certainly judges on
the continent often take the primary responsibility for calling and
questioning witnesses at trial and they can be very active in
controlling the conduct of the trial to the point that the lawyers play
a greatly reduced role at trial.\29\ But there are other continental
countries where the parties call the witnesses and do the bulk of the
questioning of witnesses. In Norway\30\ and Italy,\31\ for example, the
public prosecutor and the defense attorney call their own witnesses and
do the initial questioning, rather on the American model. In fact,
Italy considers its trial system to be an adversarial trial system\32\
and yet victims have broad rights of participation at trial including
questioning witnesses and making legal arguments. Is Italy an adversary
system because the judges are relatively passive compared to judges in
other continental countries?
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\29\ See generally, John H. Langbein, Comparative Criminal
Procedure: Germany, 3-60 (1977).
\30\ Robin Thrap-Meyer, Introduction to the Legal System of Norway,
p. 12.
\31\ See William T. Pizzi and Luca Marafioti, supra note at 14.
\32\ See Lawrence J. Fassler, Note, The Italian Penal Procedure
Code: An Adversarial System of Criminal Procedure in Continental
Europe, 29 Colum. J. Transnat'l L. 245 (1991).
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What makes this notion of a ``relatively passive arbiter'' somewhat
difficult as a feature that should distinguishes an adversary systems
from an inquisitorial system is the fact that American trial judges
have the power to ask questions.\33\ While in jury trials, American
judges tend to be very passive, at bench trials some judges ask many
questions.\34\ When you consider that individual judges often vary
considerably in their willingness to intervene and ask questions at
trial, ``relatively passive'' seems to suggest a difference of degree
among trial systems rather than a bright line that would separate our
trial system from those on the continent.
---------------------------------------------------------------------------
\33\ See Fed. R. Evid. 610.
\34\ Further complicating the American criminal trial system is the
fact that we have a system of military trials where the fact-finders
are encouraged to ask questions during the trial and sometimes play an
active role at trial. See Schleuter, Military Criminal Justice:
Practice and Procedure 630 (1996).
---------------------------------------------------------------------------
c. Winning
What really stands out in Freedman's definition of adversary
systems is the last part of Freedman's description of our adversary
system. It states that the duty of the impartial arbiter is to decide
``which side wins what.'' End of definition. American trials are about
winning. European trials are not conceptualized in that way: trials are
supposed to aim at the truth and to that end judges (and also the
state's attorney) have a responsibility to pursue relevant issues even
if not raised by the parties or to call witnesses if that becomes
necessary.\35\ In short, European judges feel responsible for the
outcome of the trial and the justice of the result.
---------------------------------------------------------------------------
\35\ See Mirjan Damaska, Evidentialy Barriers to Conviction and Two
Models of Criminal Procedure, 121 U. Pa. L. Rev. 506, 586 (1973); John
H. Merryman, The Civil Law Tradition (2d ed. 1985).
---------------------------------------------------------------------------
I think a trial system defined in Freedman's terms is ultimately
sterile. Any trial system that is to have credibility has to place
heavy emphasis on trial verdicts that are accurate and reliable. But
there is no emphasis on truth or reliability in Freedman's definition
and, unfortunately, his definition accurately reflects a trial cultural
where winning and losing are central and heavily emphasized. In an
expensive and extremely complicated system, the winner will often be
the side that has greater resources or the side with the more skillful
advocate, not the side with the stronger evidence. What should be the
responsibility of the trial judge in such a situation? \36\
---------------------------------------------------------------------------
\36\ American trial judges have the power to call their own
witnesses at trial, see Federal Rule of Evidence 614 (a), but there is
no guidance as to when or why that power should be used so it is rarely
exercised.
---------------------------------------------------------------------------
Surprisingly, there is no guidance for trial judges in such a
situation. Franklin Strier in his book Reconstructing Justice points
out that the ABA Code of Judicial Conduct fails to impose any
obligation on the trial judge to seek justice.\37\ Instead, the only
adjudicative constraint on a trial judge is to perform her task
impartially. Strier warns that when impartiality is thought to require
passivity that ``can make the judge an unwilling abettor of intolerable
injustice.'' \38\
---------------------------------------------------------------------------
\37\ See Franklin Strier, Reconstructing Justice 83 (1994).
\38\ Id.
---------------------------------------------------------------------------
Some strong European trial systems permit victim participation in
some criminal cases but some strong European trial systems, such as
those in the Netherlands \39\ or Denmark,\40\ do not pen-nit victim
participation at trial. But those countries would not define their
trial systems as being aimed at deciding ``who wins what.'' The case
for victim participation at trial is much stronger in a system like
ours that places a low priority on truth and a high priority on
winning. If you are not a winner in such a system, you will be a loser,
and that is exactly the way that victims are often portrayed after an
acquittal. Has anyone ever heard a defense attorney on the courthouse
steps following an acquittal say anything other than that the verdict
shows that the jury believed the defendant and obviously didn't believe
the defendant?
---------------------------------------------------------------------------
\39\ See A.H.J. Swart, The Netherlands, at 291-92 in Criminal
Procedure Systems in the European Community (Christine Van Den
Wyngaert, editor) (1993).
\40\ See Vagn Greve, Denmark, at 59-60 in Criminal Procedure
Systems in the European Community (Christine Van Den Wyngaert, editor)
(1993).
---------------------------------------------------------------------------
v. a trial system unsure what it is
Of course judges do care about the justice of the results that take
place in their courtrooms, but they often seem unsure whether this
concern should temper the system's adversarial excesses. A case that
nicely illustrates the difficulties for judges in our trial system is
the Louise Woodward case which received international publicity.\41\ As
you may recall, Woodward was the English au pair charged in
Massachusetts with first and second degree murder in the death of
Matthew Eappen, the infant in her care. While murder was a possible
verdict, the case always seemed more appropriate as a manslaughter
case. It seemed to fit better the facts of the case in which the
teenage defendant was supposed to have become frustrated with the
infant in her care and caused his death through the very rough way she
shook him in frustration.
---------------------------------------------------------------------------
\41\ When the author was lecturing in China in late October of
1997, he was able to follow developments in the trial on CNN
International.
---------------------------------------------------------------------------
But at the end of the trial, the defense team, led three
experienced defense attorneys, asked that the lesser included charge of
manslaughter not be given to the jury.\42\ This was viewed as an
audacious gamble because the jury would be left with the difficult
choice of either returning a verdict of second-degree murder or a
verdict of acquittal.\43\ Making the stakes very high for the defendant
was the fact that first-degree murder carried with it a mandatory life
sentence, while second-degree carried with it a life sentence, but
permitted parole after a minimum of fifteen years in prison.\44\
Manslaughter had no minimum.
---------------------------------------------------------------------------
\42\ See William F. Doherty, Woodward team wins bid to limit
verdict to murder or acquittal; Boston Globe, October 28, 1997, A1;
David Usborne, Will it be `noose-or-loose'?; The Independent, October
26, 1997, 17; CourtTV, Daily Updates from Commonwealth v. Woodward,
Highlights from October 27, http://www.courttv.com/trials/woodward/
week4.html#oct27.
\43\ See Tunku Varadarajan, Au pair risks `noose or loose' verdict,
The Times, October 28, 1997, Home News.
\44\ See William F. Doherty, supra note at A1.
---------------------------------------------------------------------------
If you want to understand how extremely adversarial our trial
system can be and how invisible victims are at times in the system,
there could hardly be a better example. The trial judge did not see it
as his responsibility to put to the jury the option that seemed most
likely to fit the facts. We can rationalize this decision by saying
that the prosecution ``blew it'' by charging murder instead of
manslaughter, but is it fair to visit this decision on the victim and
the victim's family? As mentioned earlier, victims in our trial system
feel like they are invisible and this is a nice example. The judge went
to great lengths to make sure that Woodward approved of the daring
gamble that was going to take place. He brought in an additional
attorney to make sure that she was fully informed of the risks of the
decision not to instruct on manslaughter.\45\ After meeting with the
additional attorney, Woodward told the court that she agreed with the
decision only to put murder or an acquittal to the jury.
---------------------------------------------------------------------------
\45\ Id.
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What this judge, a judge with an excellent reputation,\46\ was
saying to the world watching this trial is that trials in the United
States are more about winning and losing than they are about accurate
verdicts.
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\46\ See David Nyhan, But can he make the case for attorney
general?, Boston Globe, October 26, 1997, E4 (Zobel is a ``savvy trial
judge''); Don Aucoin, While millions watch, Trial of Woodward in
infant's death is touchstone for US, British television, Boston Globe,
October 9, 1997 (Judge Zobel ``runs a tight ship''). Judge Hiller
Zobel, the judge in the Woodward case, is also an amateur historian.
See Hiller B. Zobel, The Jury on Trial, American Heritage, July/August
1995 at 42.
---------------------------------------------------------------------------
Obviously, if the defense had won there would have been high praise
for the brilliance of the defense advocates and their bold strategy.
But we all know what happened. The prosecutor gave a tremendous
summation, and the defendant ``lost,'' receiving a life sentence as she
knew she would if she were to be convicted. When a system emphasizes
winning and losing so heavily and openly permits such an audacious
gamble, losing is possible.
But it is at this point that our supposedly ``adversary system''
took a different turn. A few days later, the same judge entered the
courtroom now concerned about the injustice of the result.\47\ But
where does this judge come from in an ``adversary system'' and where
was a judge with these concerns at trial? Having permitted the defense
to gamble and having made sure that the defendant was fully informed of
the consequences of the gamble, where in an adversary system does this
judge get the authority to question the second degree murder
conviction? The judge substituted a manslaughter verdict and dropped
Woodward's sentence from life (meaning a fifteen year minimum) to time
served, permitting her immediate release.\48\ (Massachusetts sentencing
guidelines had suggested a prison sentence of from three to five
years.\49\)
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\47\ Tom Mashberg, Judge rules manslaughter in nanny case, Boston
Herald, November 10, 1997, 004.
\48\ See Associated Press, Au pair freed after judge reduces
verdict, Chicago Tribune, November 10, 1997, Zone C, 1.
\49\ Davi Usborne, Ordinary girl who put justice on trial; The
Independent, June 17, 1998, 3.
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What you see in the Woodward case is a trial system that doesn't
know what its goal is. I don't dispute the justice of the manslaughter
verdict in the Woodward case or even the sentence that was imposed. But
the way the system got there raises serious questions about the
premises of our trial system. In a trial system where judges are
supposed to be ``relatively passive arbiters,'' a single judge rejects
the verdict of a jury and imposes the verdict he feels is correct. He
then goes on to impose a very lenient sentence, based on a view of the
facts that some jurors plainly did not accept.\50\
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\50\ See Joe Ryan and Anne E. Kornblut, Juror `appalled' at
sentence Boston Globe, November 11, 1997, B1.
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I think it is time to put aside the convenient labels and cliches
that dominate our descriptions of our trial system--that ``we have an
adversary system,'' that ``we don't trust judges,'' ``that we believe
in jurors of 'our peers,' '' and so on--and look at what we really
have. When I do this I see a trial system that doesn't know what it
wants to happen at trial and doesn't know itself very well. It swings
from extremely adversarial to extremely inquisitorial, from vesting
incredible power injuries to permitting judges to undo or effectively
overrule jury verdicts with which they disagree, from incredibly weak
judges at times to judges vested with tremendous power over the liberty
of citizens at other times. I don't think any of these extremes are
healthy for victims, or for defendants.
vi. victims in other common law trial systems
I want to return to Gerald Lefcourt's worry that victims might have
a seat at counsel table to make one more point about trial systems,
this time about other common law trial systems. I have to confess that
I don't know of any common law country that would permit the victim to
sit in the front of the courtroom at counsel table which is the worry
Lefcourt expresses. This might seem to support Mr. Lefcourt's
assumption that pennitting a victim to sit in the front of the
courtroom ought to be unthinkable.
But the problem is that in the common law countries I have visited,
the defendant also doesn't sit in the front of the courtroom at counsel
table. The defendant sits in a small box, usually next to a uniformed
guard, at the very back or at one side of the courtroom.\51\ Enter any
Crown Court in London and it is easy to tell who is on trial and I mean
that on more than one level.\52\
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\51\ See Michael H. Graham, Tightening the Reins of Justice in
America, 69-70 (1983).
\52\ See William T. Pizzi, Discovering Who We Are: An English
Perspective on the Simpson Trial, 67 U. Colo. L. Rev. 1027, 1028-29
(1996).
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Imagine how Mr. Lefcourt would feel if it was proposed that
defendants at serious criminal trials had to sit in a small box at the
very back of the courtroom, far removed from their attorneys and often
even farther from the proceedings than some members of the public.
American defense lawyers sometimes complain about the difficulty
``personalizing the defendant'' to the jury.\53\ They are quite
fortunate compared to defense banisters in England who must work at
considerable distance from the defendant.\54\ The barrister cannot
personalize the defendant to the jury by putting an arm on the shoulder
of a defendant or chatting quietly with him.
---------------------------------------------------------------------------
\53\ Id.
\54\ See Michael H. Graham, supra note at 69.
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Now I am not advocating that we build docks in American courtrooms
or that we make defendants sit outside the bar in our courtrooms and
only permit lawyers inside the bar. But the Victims' Rights Amendment
has to be understood against a background in which defendants have many
advantages in our trial system that they don't have in other trial
systems and conversely victims have many disadvantages at trial that
they don't have in other trial systems. It is against this background
that the limited ``right'' provided victims at trial in the Victims'
Rights Amendment--a right ``not to be excluded'' from at trial should
be seen as completely appropriate for our trial system.
vii. a final observation on victims' rights ``versus'' defendants
rights
One attack on the Victims' Rights Amendment is try to set victims'
rights against defendants' rights. Consider again Gerald Lefcourt's
attack on the Victims' Rights Amendment. He states that ``the amendment
establishes rights that would, by definition, overwhelm protections the
Constitution affords defendants including the presumption of
innocence.'' \55\ This is complete hyperbole. The amendment has been
carefully crafted so that its provisions do not conflict with any of
the constitutional rights of defendants. Basically, the amendment
tracks the law that has been put into effect in the majority of states
through state constitutional amendments.
---------------------------------------------------------------------------
\55\ See Gerald B. Lefcourt, supra note at 5.
---------------------------------------------------------------------------
But having argued that our trial system doesn't treat victims well
at trial, one might think that this means that our present system
treats defendants well. But this is a complicated issue. I think this
is not a good system for the vast majority of defendants and they have
little to fear from the Victims' Rights Amendment.
Sure, comparatists often say that if a defendant is really guilty,
that defendant would prefer to be tried in the United States,\56\ and
they don't mean that as a compliment. What they mean is that no matter
how strong the evidence, with a good lawyer, who knows what might
happen at trial?
---------------------------------------------------------------------------
\56\ See John H. Merryman, supra note at ?.
---------------------------------------------------------------------------
But the dark side is that the system doesn't want defendants to
exercise their constitutional rights and it has evolved very effective
means of coercing defendants to waive their constitutional rights. What
the system does is threaten defendants with very high punishments if
they have the temerity to try to exercise their constitutional
rights.\57\ What we have seen over the last twenty years has been a
tremendous increase in habitual offender statutes, statutes with high
mandatory punishments, very high sentencing ranges, and other
sentencing statutes that put tremendous pressure on defendants to waive
their rights and avoid trial.\58\ The result is a system that works to
the advantage of wealthy and sophisticated defendants but is not a good
system for the vast majority of defendants who are neither wealthy nor
sophisticated.
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\57\ See William T. Pizzi, Punishment and Procedure: A Different
View of the American Criminal Justice System, 13 Const. Comm. 55
(1996).
\58\ The growing harshness of American sentencing laws and the
political pressure that have encouraged this development have been the
subject of book length studies. See, e.g., Michael Tonry, Sentencing
Matters (1996); Katharine Beckett, Making Crime Pay (1997).
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A great deal of sentencing power has been shifted from judges to
prosecutors and they use it to pressure defendants to plead guilty or
face some very unattractive alternatives.\59\ In many states, the
number of cases going to trial is shrinking. The system is completely
given over to plea bargaining. Why would any sane prosecutor want to go
to trial if a trial is a crapshoot? And it is pretty tough for a
defendant to turn down a one year offer if knows he will get a five or
ten year minimum if convicted at trial.
---------------------------------------------------------------------------
\59\ A shocking example of prosecutorial sentencing power and the
risks to a defendant of trying to withstand that power is Bordenkircher
v. Hayes, 434 U.S. 357 (1978). Hayes turned down a plea bargain offer
of a five year sentence to go to trial. He was convicted and received a
mandatory life sentence.
---------------------------------------------------------------------------
This is not a criticism of plea bargaining per se. Every western
system has some mechanism for the expedited disposition of a large
percentage of its criminal cases that offer defendants some discount
for avoiding trial or at least avoiding a prolonged trial.\60\ But
there is good plea bargaining and bad plea bargaining and United States
draws no distinction between the two. Today one should worry less about
false convictions at trial than about defendants with credible defenses
who go to prison because the pressure on them to plead guilty often
from their own lawyers is intense.\61\
---------------------------------------------------------------------------
\60\ See William T. Pizzi and Luca Marafioti, supra note at 35-37
(describing plea bargaining analogs in Denmark, Spain, France and
Germany).
\61\ In a recent article, William Stuntz has warned that a highly
complicated legal system like the American system encourages defense
lawyers to work hard at procedural issues and puts pressure on them to
avoid factual lines of inquiry that require much more time to develop.
See William J. Stuntz, The Uneasy Relationship Between Criminal
Procedure and Criminal Justice, 107 Yale L. J. 1, 35-47 (1997).
---------------------------------------------------------------------------
viii. conclusion
What the Victims' Rights Amendment does in terms of expanding the
law for victims is very minimal. Many of the provisions of the
amendment, such as the right to file a victim impact statement or the
right to be informed and heard on the merits of proposed plea bargain
agreements, are already embodied in the law of many states. In fact,
because the amendment is limited to crimes of violence, the provisions
of the amendment are significantly less extensive than the existing law
in many jurisdictions.
But the symbolism of recognizing victims in our Constitution is
tremendously important and this article has tried to show why. There is
nothing inconsistent in having a strong and reliable trial system that,
at the same time, acknowledges that victims have an interest in the
prosecution of a criminal case, including the trial.
Victims are very angry at the treatment they receive in our
criminal justice system and I have tried to show that they have a right
to be angry. Unfortunately, anger is not a good basis on which to make
important public policy decisions and it contributes to the increasing
harshness we see in our system. Crime is a serious problem in all
western countries and politicians have to get elected in these
countries as well. But we need to ask ourselves why judges and lawyers
in these other countries have been more successful in fending off calls
for the death penalty, for harsh mandatory minimums, tough habitual
offender statutes, and the like. Part of the answer is that the judges
in those systems have greater credibility with the public and, in some
of the countries at least, the trial system commands greater respect
and public confidence. I think we need the balance that a
Victims'Rights Amendment offers to restore some of the public
confidence our system has lost. I think victims need it, but so do
defendants.
Article Prepared by William T. Pizzi* and Walter Perron**
Crime Victims in German Courtrooms: A Comparative Perspective on
American Problems***
Introduction: The Victims' Movement in the United States and the Need
for a Comparative Perspective
The victims' movement in the United States is a powerful political
force that has achieved some significant victories in its fight to
improve the treatment of victims within the American criminal justice
system. In 1982, for example, Congress passed the Victim and Witness
Protection Act.\1\ This legislation encouraged sentencing judges to
impose requirements of restitution on convicted defendants\2\ and
required the filing of victim impact statements as part of any
presentence report supplied by the Department of Probation to a
sentencing judge.\3\ While the Act is applicable only in federal
courts, it has served as a model for similar reform legislation that
has since been passed in most states.\4\
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* Professor of Law, University of Colorado School of Law. The
author is grateful to the University of Colorado Council on Research
and Creative Work, and to the Max-Planck-Institut fur Auslandisches und
Internationales Strafrecht, for the funding that supported the research
for this article. The author also wishes to acknowledge the valuable
contribution that Beate Weik, a law graduate in Freiburg, Germany, made
to the research that went into this article.
**Professor of Law, Johannes Gutenberg-Universitat Mainz,
Fachbereich Rechts- und Wirt-schaftswissenschaften, Germany. The author
is also grateful to Beate Weik and to Roland Grimm, a law student at
the Universitat Konstanz, for their valuable help.
*** The authors wish to express their appreciation for the generous
cooperation of three experienced members of the legal community in
Freiburg, Germany: Regina Schaaber, a lawyer who frequently represents
rape victims in criminal cases; Ulf Kopcke, a lawyer who does a
significant amount of defense work, but has also represented victims at
criminal trials; and Silvia Fodor, a state's attorney, who has
represented the state at many rape trials. They provided background
information on criminal trials in Germany and were especially helpful
with information on how victim participation at German trials works in
practice.
\1\ Victim and Witness Protection Act of 1982, Pub. L. No. 97-291,
96 Stat. 1248 (codified as amended in scattered sections of 18 U.S.C.).
\2\ Id. Sec. 5 (codified as 18 U.S.C. Sec. 3579). Few offenders,
except in white collar criminal cases, have the skills earning power,
and employment opportunities to make meaningful restitution.
Consequently, it has been argued that tough language mandating
restitution in the Victim and Witness Protection Act, and those state
statutes modeled on it, raise false expectations in the minds of crime
victims. See Emilio Viano, Victim's Rights and the Constitution:
Reflections on a Bicentennial, 33 Crime and Delinq. 438, 446 (1987).
\3\ Fed. R. Crim. P. 32(c)(2)(C).
\4\ In 1989, 48 states had authorized consideration of victim
impact statements at sentencing, Dina R. Hellerstein, The Victim Impact
Statement: Reform or Reprisal, 27 Am. Cri. Rev. 391, 399 (1989).
Victims do not use their statutory rights with frequency. In
California, where victims have the right of allocution at sentencing,
victims exercise this right in less than three percent of felony cases.
Id. at 399-400 (citing to Edwin Villmoare & Virginia V. Neto, Victim
Appearances at Sentencing Hearings Under the California Victims' Bill
of Rights 42 (National Institute of justice Executive Summary, 1987)).
See also Lynn Weisberg, Victim Appearances at Sentencing in California,
71 Judicature 166, 166 (1987).
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Just two years later, Congress passed another major piece of
legislation aimed at improving the treatment of victims in the criminal
justice system. The Victims of Crime Act of 1984 \5\ established a
Crime Victims Fund that disburses monies (collected from fines,
penalties, and bond forfeitures) to state victim compensation funds and
to victim assistance projects throughout the country.\6\ As a result of
this legislation and the funding it provided, as well as similar
legislation at the state level, victim service programs are now almost
universal in sizable communities throughout the United States. These
programs provide services to victims such as emergency care, crisis
intervention, counseling, help with victim compensation and
restitution, and victim advocacy.\7\
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\5\ Pub. L. 98-473, 98 Stat. 2170 (1984).
\6\ Id. Sec. Sec. 1402-04. See Robert C. Davis & Madeline Henley,
Victim Service Programs, in Victims of Crime: Problems, Policies, and
Programs 157, 161 (Arthur J. Lurigio et al. eds., 1990).
\7\ As of 1992, 47 states and the District of Columbia had passed
legislation setting up victim compensation programs. Christopher R.
Goddu, Victims' ``Rights'' or a Fair Trial Wronged?, 41 Buff L. Rev.
245, 250 (1993). See also John R. Anderson & Paul L. Woodard, Victim
and Witness Assistance: New State Laws and the System's Response, 68
Judicature 221, 222 (1985).
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Over the last several years, however, the victims' movement in the
United States has been trying to achieve something much more
controversial: recognition of a victim's right to participate at each
stage of the criminal process, including the trial. The drive to
establish such a right began with the 1982 report of the President's
Task Force on Victims of Crime, which proposed adding to the Sixth
Amendment a sentence guaranteeing victims ``the right to be present and
to be heard at all critical stages of judicial proceedings.'' \8\ While
this seems a radical proposal, the Task Force report concluded that no
alternative short of amending the Sixth Amendment would secure to
victims proper treatment and respect in the criminal justice system.\9\
---------------------------------------------------------------------------
\8\ See President's Task Force on Victims of Crime, Final Report
114 (1982).
\9\ Id. at 114-15.
---------------------------------------------------------------------------
Rather than try initially to amend the U.S. Constitution, which
would be controversial and difficult, the victims' rights movement
decided that it was politically wiser to push first for the passage of
state laws or constitutional amendments that would establish a right
for victims to participate at some level in the criminal process.\10\
While focusing on amending a majority of state constitutions, the
movement remained committed to the ultimate goal of seeking a federal
constitutional amendment guaranteeing rights for victims.\11\ Having
achieved the adoption of victims' rights amendments in twenty states
since 1986,\12\ the National Victims' Constitutional Amendment Network,
an umbrella group representing all major victims' rights organizations,
unanimously adopted on September 15, 1995 the specific language that it
will seek to have added to the Sixth Amendment.\13\ The existing state
constitutional amendments \14\ and those statutes enacted pursuant to
them vary considerably in their language and content, but they are
generally consistent in providing that a victim: (1) be kept informed
of the progress of the case as it moves from step to step, (2) receive
notice about any hearings in the case, and (3) have the right to be
heard on certain issues when the victim has relevant testimony to
provide.\15\
---------------------------------------------------------------------------
\10\ See LeRoy L. Lamborn, Victim Participation in the Criminal
Justice Process: The Proposals for a Constitutional Amendment, 34 Wayne
L. Rev. 115, 132 (1987).
\11\ See id. at 131-33.
\12\ See Paul G. Cassell, Balancing the Scales of Justice: The Case
for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L.
Rev. 1373, 1382 (noting that Alabama, Alaska, Arizona, California,
Colorado, Florida, Idaho, Illinois, Kansas, Maryland, Michigan,
Missouri, New Jersey, New Mexico, Ohio, Rhode Island, Texas, Utah,
Washington, and Wisconsin have all passed victims' rights amendments).
Professor Cassell also reports that at least eight other states are
actively considering victims' rights amendments. Id. at 1383.
\13\ The National Victims' Constitutional Amendment Network
proposes that the following paragraph be added to the Sixth Amendment:
Moreover, to establish, preserve, and protect the rights of
the people to liberty, justice and due process, a victim of
a serious crime shall be informed of and enjoy the
following fundamental rights throughout the criminal
justice process: to be treated with fairness, respect, and
dignity; to timely notice of and, unless incarcerated, to
be present at all proceedings where the accused has the
right to be present; to be heard at any proceeding
concerning post-arrest release, a negotiated disposition, a
sentence, post-conviction release, and any other matter
where victim participation will serve the ends of justice;
to confer with the appropriate officials regarding post-
charging disposition of a case, sentencing recommendations,
and post-conviction supervision decisions posing a
significant threat to the safety of the victim; to a speedy
trial and final disposition free from unreasonable delay;
to receive prompt and full restitution from the convicted
offender, to be free from an unwarranted release of
confidential information; to be reasonably protected from
the accused or convicted offender; and to be informed, upon
request, when the accused of convinced offender is given
any release from secure custody, or has escaped. The
exercise of denial of any right granted under this
paragraph shall not entitle the accused or convicted
---------------------------------------------------------------------------
offender to any relief.
Letter from Mary McGhee, co-chair of the National Victims'
Constitutional Amendment Network, to William T. Pizzi (Nov. 11, 1995)
(on file with the Stanford Journal of International Law).
---------------------------------------------------------------------------
\14\ See Ala. Const. amend. 557; Alaska Const. art. I, Sec. 24;
Ariz. Const. art. II, Sec. 2.1; Cal. Const. art. I, Sec. 28; Colo.
Const. art II, Sec. 16a; Fla. Const. art. I, Sec. 16(b); Idaho Const.
art. I, Sec. 22; Ill. Const. art I, Sec. 8.1; Kan. Const. art. XV,
Sec. 15; Md. Decl. of Rights art. XLVII; Mich. Const. art. I, Sec. 24;
Md. Const. art. I, Sec. 32; N.J. Const. art. I, para. 22;
N.M. Const. art. II, Sec. 24; Ohio Const. art. I, Sec. 10a; R.I. Const.
art. I, Sec. 23; Tex. Const. art. I, Sec. 30; Utah Const. art. I,
Sec. 28; Wash. Const. art. I, Sec. 35; Wis. Const. art. I, Sec. 9m.
\15\ For an excellent overview of the range of ``rights'' granted
to victims under various state amendments and accompanying legislation,
see generally Lamborn, supra note 10, at 143-72.
---------------------------------------------------------------------------
Some aspects of these state amendments ought not to be
controversial. It seems entirely proper for a victim to be kept
informed about the progress of the case and to have a right to be heard
on matters that may directly affect her, such as a reduction of bail or
a trial continuance. But what does it mean in these amendments for the
victim to be granted the right to be present and to be heard at the
trial itself?.
These amendments may give victims no more rights to participate at
the trial than what they already have: the ``right'' to observe the
trial, like any member of the public, subject to normal sequestration
rules; and the ``right'' to be heard at trial, if the victim is called
by either the prosecution or the defense. Clearly, if victims' rights
amendments turn out in fact to be much more symbolism than substance,
this will provoke the ire of the victims' movement. But what exactly
are the problems with the American criminal justice system from the
victims' point of view, and how will a right to participate somehow
solve these problems?
Unfortunately, the issue of victims' rights in the United States is
one on which there is very poor communication between those outside the
system--victims and their families; and those inside the system--
judges, lawyers, and scholars. While victims are quite articulate in
communicating their frustration and anger with the system,\16\ their
complaints are often expressed at a level of generality that does not
indicate the specific structural problems they would like to see
remedied. For example, victims complain of being made to feel like ``an
outsider to the criminal justice system,'' \17\ or like ``another piece
of evidence.'' \18\ But such complaints, though powerful, communicate
very little about any specific changes in the structure of American
trials that would make victims feel more included in the process.
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\16\ ``My life has been permanently changed. I will never forget
being raped, kidnapped, and robbed at gunpoint. However, my sense of
disillusionment with the judicial system is many times more painful. I
could not, in good faith, urge anyone to participate in this hellish
process.'' Anne M. Morgan, Criminal Law Rights: Remembering the
``Forgotten Person'' in the Criminal justice System, 70 Marq. L. Rev
572, 572 (1987) (quoting a crime victim's statement at a Senate
subcommittee hearing on the Victim and Witness Protection Act of 1982).
\17\ A good deal of my frustration stemmed from the feeling that,
as a crime victim, I was an outsider to the criminal justice system. *
* * Like other family members of murder victims, I found myself
excluded from the system, unable to participate in the formal
proceedings. The criminal justice equation does not include the
relatives and friends of victims. Steve Baker, Justice Not Revenge: A
Crime Victims Perspective on Capital Punishment, 40 U.C.L.A. L. Rev
339, 340 (1992).
\18\ Betty Jane Spencer, A Crime Victims Views on a Constitutional
Amendment for Victims, 34 Wayne L. Rev. 1, 2 (1987).
---------------------------------------------------------------------------
At the same time, those within the system who are accustomed to
viewing criminal trials as two-sided battles between the state and the
defendant, have a great deal of difficulty seeing how a criminal trial
can be altered in any significant way to give victims more comfort and
visibility in the courtroom without depriving the defendant of a fair
trial.\19\ So poor is the level of communication that those within the
system often seem genuinely bewildered by the victims' rights movement,
even to the point of suggesting rather condescendingly that victims are
seeking a solace from the criminal justice system that they ought to be
seeking elsewhere,\20\ or that it might even be harmful to victims to
participate in the process.\21\
---------------------------------------------------------------------------
\19\ See M. Dolliver, Victims' Rights Constitutional Amendment: A
Bad Idea Whose Time Should Not Come, 34 Wayne L. Rev. 87, 90 (1987)
(``Any attempt to use the Constitution to enhance a victim's rights by
placing the victim in direct conflict with the accused in court reverts
to a process that history has shown is less than fully civilized.'');
Goddu, supra note 7, at 271-72 (``To avoid any chance of a miscarriage
of justice, victim participation, at the trial level, should be limited
to spectator access to the courtroom and nothing more.'').
\20\ See Vivian Berger, Payne and Suffering--A Personal Reflection
and a Victim-Centered Critique, 20 Fla. St. U. L Rev. 21, 59 (1992)
(``The system is not equipped to nurture victims or their
representatives.''); id. at 65 (``Private forums will better serve to
mend hearts and honor the dead.'').
\21\ Justice James M, Dolliver of the Washington Supreme Court
suggests that increased participation in the process by the victim
might have a negative psychological and economic effect on victims. See
Dolliver, supra note 19, at 90.
---------------------------------------------------------------------------
This Article offers no solutions to any of the structural and
constitutional questions that seem certain to arise in the years ahead
as victims' rights groups push for some level of participation at
trial. It may, however, offer American readers something that is
noticeably lacking in the American literature; perspective on the
problems that victims face in American courtrooms. The authors hope to
bridge the communication gap that exists between those outside and
those working within the American system by leaving it entirely and
examining how victims are treated at criminal trials in Germany. For a
number of reasons, the authors believe that victims of serious crimes
fare better in the German trial system than they do in American
courtrooms, and this Article will explain why the authors have reached
that conclusion.
This Article, however, is not reformist in nature. Germany, like
most western countries other than the United States and England, is a
civil law country, and many aspects of the treatment of victims at
German trials reflect a trial structure grounded in the civil law
tradition. For example, because civil law trials in Germany are
directed and controlled by trial judges and are not structured as
adversarial contests, it is easier to accommodate the interests of
victims at trial without disturbing the adversarial balance that is
central to American criminal trials. Thus, there are no easy solutions
to the difficult problems that lie ahead for the American legal system
as it tries to address the concerns of victims within the confines of a
rigorously adversarial trial structure.
But the debate over the right of victims to some level of
participation at trial will continue to be emotional and unproductive
until those within the system acknowledge and better understand the
sources of victims' frustration in their encounters with the American
criminal justice system. It is toward that understanding that the
authors hope to contribute.
This Article is divided into two parts. Part I explains why certain
central features of the German trial system, most of which are common
to other countries that share the civil law tradition, offer definite
advantages to victims when compared to criminal trials that take place
in the American legal system. Part II deals with the right granted
victims of certain serious crimes to participate directly in the German
criminal trial as Nebenklager, which translates roughly as permitting
the victim to act as a ``secondary accuser.'' We describe the major
reforms made to the Nebenklage procedure in 1986 and show how it works
in practice, using as an illustration a rape prosecution in which the
victim has chosen to take advantage of the procedure.
The authors have chosen to discuss the Nebenklage procedure in
detail partly because it does not provide all crime victims with a
general right of participation at trial. Rather, the procedure is
available only for the most serious crimes, and its major impact, as we
shall explain, is on victims of sexual assault. Thus, while the
Nebenklage procedure is important and its impact is significant in
sexual assault cases, it needs to be kept in perspective: it is only
one aspect of a trial tradition that offers victims a number of
advantages, both direct and indirect, in comparison to the American
adversarial system and the difficulties that victims face in American
courtrooms.
i. victims in the civil law system
A. The German trial system prefers narrative testimony
One of the biggest differences between German trials and American
trials is the way that witnesses--victims, defendants, police officers,
experts, etc.--are questioned in court. After the presiding judge has
informed the witness of her obligation to testify truthfully and
completely about the matter at hand, and has obtained a few pieces of
background information from the witness, such as her name and address,
the presiding judge will always ask the witness to explain fully and
completely what happened. In short, the witness is invited to tell all
she knows about the crime and its surrounding circumstances in a
narrative fashion.
This preference for narrative testimony, which is embodied in
section 69 of the German Criminal Procedure Code
(Strafprozeordnung),\22\ reflects an important epistemological
premise, common in civil law countries,\23\ that evidence should be
presented to the court in as near to its original form as possible.
This means that the presiding judge will never try to ``control'' the
examination of a witness who has important evidence to present at trial
by using a series of questions to take the witness through the events
in question step by step, as is customarily done by attorneys on direct
examination in an American criminal trial.
---------------------------------------------------------------------------
\22\ See Strafprozeordnung [StPO] Sec. 69(1) (F.R.G.).
\23\ See Mirjan Damasika, Evidentiary Barriers to Conviction and
Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L.
Rev. 506, 517-18 (1973).
---------------------------------------------------------------------------
While the presiding judge will ask the witness questions, this will
not occur until the witness has had an opportunity to give a detailed
narrative of the events in question, in her own words. It is not
unusual for the victim of a serious crime, such as a rape or a serious
assault, to testify uninterrupted for thirty to forty minutes or
longer, as she explains how the crime occurred, what steps she took
after the crime occurred, and what happened to her subsequently. Only
after the witness has finished giving her account will the judge begin
to ask her questions.\24\
---------------------------------------------------------------------------
\24\ It needs to be emphasized that this preference for narrative
testimony applies to all witnesses, and thus a defendant will also be
permitted to give his account of the events in a detailed narrative
form.
---------------------------------------------------------------------------
Because the German system prefers to let witnesses testify
relatively freely about the events in question, it is not unusual for a
witness at a German criminal trial to mention something that would
bring an immediate objection in an American courtroom--perhaps because
it is hearsay, contains an opinion, or is not directly relevant to the
matter at hand, and may even be prejudicial to the defendant. The
German system is less worried about evidentiary problems of this nature
than is the American system. Chiefly this is because trials in Germany,
as in most civil law countries, take place in front of professional
judges when the offense is minor, or in front of ``mixed'' panels of
professional and lay judges when the crime is more serious.\25\ Perhaps
because there will always be professional judges among the factfinders,
the German system is more optimistic that the factfinders will be able
to separate the more probative from the irrelevant evidence.\26\
Moreover, continental systems tend to be skeptical about the entire
intellectual enterprise of erecting elaborate evidentiary structures to
distinguish relevant from irrelevant evidence.\27\ For these reasons,
there is no direct analog in Germany to the technical set of rules that
tightly controls the production of evidence at trial in most American
jurisdictions.\28\
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\25\ See Richard S. Frase & Thomas Weigend, German Criminal Justice
as a Guide to American Law Reform: Similar Problems, Better Solutions?,
18 B.C. Int'l. & Comp. L. Rev. 317, 321-22 (1995). Lay Judges in
Germany serve for a period of four years and sit twelve days a year.
There is no procedure for challenging lay judges as there is for
challenging jurors in the United States, and the only grounds for
removing a lay judge are those that would require recusal for a
professional judge. See generally John H. Langbein, Comparative
Criminal Procedure: Germany 141-44 (1977).
\26\ See Damaska, supra note 23, at 514-15.
\27\ Id.
\28\ It is not correct to say that there are no evidentiary rules
at German trials. German law embodies a rough analog of the common law
hearsay rule, namely, the principle of orality and immediacy which
requires that the judges examine in court a witness who has information
about a matter of fact rather than simply admitting a prior statement
of the witness into evidence. See StPO Sec. 250. StPO Sec. 244(2)
obliges the judges to examine and take into consideration all evidence
that is relevant to the issue. This requires that the judges
investigate and hear the best possible version of evidence. See
Damaska, supra note 23, at 516-17. Thus, judges can admit hearsay, but
if it relates to an important issue, they would also have to hear
direct testimony, if available. Because the judges are under a duty to
examine all of the relevant evidence about the matter at hand, the law
of evidence is of rather minor importance in Germany compared to the
central role it plays in the American trial system. See Mirjan Damaska,
Structures of Authority and Comparative Criminal Prodecure, 84 Yale
L.J. 480, 526 (1975).
---------------------------------------------------------------------------
The German system's preference for narrative testimony also
reflects a desire that judges hear testimony that has not been
``shaped'' by lawyers' preparation. While witness preparation is
considered ethically proper and even necessary in an important criminal
case in the United States, in Germany it is unethical to influence a
witness; the shaping of testimony in which both prosecution and defense
routinely engage in the United States would be improper.\29\ The German
system would prefer to hear witnesses testify in their own words rather
than hear from witnesses who have been coached and rehearsed. The
result is a trial that is less technical and less influenced by lawyers
than is typical in the American legal system.
---------------------------------------------------------------------------
\29\ See Gerhard Jungfer, Eigene Ermittlungstatigkeit des
Strafverteidigers--Strfprozessuale und standesrechtliche Grenzen in Die
Eigene Ermittlungstatigkett des Strafverteidigers, Strafprozessuale und
Standesrechtliche Moglichkeiten und Grenzen 7, 11 (1981); Elmar Muller,
Strafverteidigung im Uberblick, 67 n.32 (1989).
---------------------------------------------------------------------------
In part, of course, this difference reflects the fact that the
German system is not an adversarial system in which the prosecution and
defense present witnesses to the court. Rather, it is an inquisitorial
system in which the judges have an obligation at trial to examine,
evaluate, and weigh all relevant evidence in order to reach an accurate
determination of the issues. Because the judges have an affirmative
obligation to inquire into the charges, it is the judges, not the
parties, who have the primary responsibility for deciding which
witnesses will be heard at trial, and it is the judges, not the
parties, who usually conduct the bulk of the examination of those
witnesses.\30\ If the judges investigate in an incomplete manner and
refuse to seek out and examine all available and potentially relevant
evidence, an appellate court will be likely to reverse.\31\
---------------------------------------------------------------------------
\30\ For an excellent overview of criminal trials in Germany, see
Langbein, supra note 25, at 3-60.
\31\ See StPOSec. Sec. 244(2)-(5), 337.
---------------------------------------------------------------------------
These differences point to the apparent ambivalence in the American
legal system about what exactly it seeks to elicit from victims and
other witnesses. Witnesses are sworn to tell ``the whole truth,'' but
the system does not seem to want to hear what the victim considers to
be the whole truth about the event in question. Certain aspects of the
crime that may be important to the victim will be inadmissible at
trial. And the testimony of the victim has to be shaped so that it not
only comports with our rules of evidence but also has the effect the
lawyer is seeking.
Clearly, the United States lies at one extreme in the way that
lawyers are free to manipulate evidence for presentation at trial. Even
in England, which also has an adversarial trial structure, the sort of
pretrial witness preparation that is standard practice in serious
American criminal cases would be considered improper.\32\ The American
system fosters an extreme form of advocacy, and it is important to
fully understand the impact of this approach on victims. If a primary
goal of a criminal trial is to provide a cathartic and beneficial
effect for victims, it seems that such benefits will more likely accrue
to victims in a system that not only permits them to tell everything
they know about the crime in their own words, but actually prefers such
testimony to that which has been shaped and prepared. In short, a trial
system that encourages a witness to be herself in the courtroom and
that demonstrates a willingness to listen to what she has to say offers
an advantage to victims that should not be underrated.
---------------------------------------------------------------------------
\32\ Paragraph 6.1 of the General Standards, Code of Conduct of the
Bar of England and Wales (1990) provides:
Generally a barrister should not discuss a case or the
evidence to be given in a case with any potential witness
other than the lay client, a character witness or an expert
witness. * * * A barrister should not rehearse, practise or
coach any witness, in relation either to the evidence
---------------------------------------------------------------------------
itself or to the way in which to give it.
See also Michael M. Graham, Tightening the Reins of Justice in America
66-67 (1983).
B. German trials determine the sentence as well as the issue of guilt
Another major difference between German and American criminal
trials is that the factfinders at a German trial will determine the
defendant's sentence should they find the defendant guilty.\33\ There
is no separate sentencing procedure.\34\
---------------------------------------------------------------------------
\33\ See Langbein, supra note 25, at 36-38; Damaska, supra note 23,
at 517-18.
\34\ This dual inquiry at trial into guilt and possible sentence is
not unusual among civil law countries. See Comparative Law 479 (Rudolph
B. Schlesinger et al. eds., 5th ed. 1988). However, the system of dual
inquiry is not without its critics. In fact, German academics have
suggested that the issues of guilt and sentencing should be decided
separately. See Arbeitskreis deutscher und schweizerischer
Strafrechtslehrer (Arbeitskreis AE), Alternativ-Entwurf, Novelle zur
Strafprozeordnung, Reform der Hauptverhandlung 4 ff., 53 ff.
(Tubingen 1985). However, such calls for reform have not yet resulted
in any changes to the German trial structure.
---------------------------------------------------------------------------
This has direct and indirect implications for the victim. The
direct implication is that the court will always inquire into the
impact the crime has had on the victim. In fact, such information is
always relevant because it is a sentencing factor under the German
Penal Code.\35\ Thus, crime victims not only have more freedom to
describe the crime in question, as explained in the previous
subsection, but also have the ability to complete the picture by
explaining the impact that the crime has had on them in the period
since it occurred. The result is testimony that, from the victim's
perspective, is a coherent whole: ``here is where I was and what I was
doing when the crime occurred; here is what happened to me during the
crime; here is what I did following the crime; and here is how the
crime has affected me.''
---------------------------------------------------------------------------
\35\ Strafgesetzbuch (StGB) Sec. 46(2).
---------------------------------------------------------------------------
There are also at least two indirect benefits for victims that
result from addressing sentencing at a German criminal trial. First,
the stress on the victim and the victim's family is reduced to the
extent that the whole criminal matter is resolved in a single trial. By
contrast, in the United States the trial and sentencing are very
different in tone and function, and often are separated by a
significant amount of time to permit a presentence investigation to
take place. Because in the United States the victim frequently is an
important prosecution witness at trial, the victim's credibility, and
sometimes also the victim's character, may come under sustained attack.
But it would be considered not only irrelevant but prejudicial for the
victim to dwell on the impact of the crime at trial.\36\ It is only at
the sentencing hearing, if the defendant is convicted, that the victim
will have the opportunity to explain the crime's impact on her and her
family.\37\ Sentencing hearings, also differ from trials in that they
are usually inquisitorial in format, with the judge, armed with the
presentence report, controlling the proceeding.\38\
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\36\ It is frequently urged that even permitting victims an
oppportunity to speak at sentencing, where such remarks will often be
directed only to the judge, is also overly prejudicial. See, e.g,
Andrew Blu, Impact of Crimes Shakes Sentencing, Nat'l L.J., June 26,
1995, at A1; Robert C. Black, Forgotten Penological Purposes: A
Critique of Victim Participation in Sentencing, 39 Am. J. Juris. 225
(1994); Lynne Henderson, The Wrongs of Victim's Rights, 37 Stan. L.
Rev. 937, 999-1001 (1985).
\37\ Sometimes the victim is only allowed to do this in writing and
not in person. See Lamborn, supra note 10, at 151-52.
\38\ See William T Pizzi, Lessons from Reforming Inquisitorial
Systems, 8 Fed. Sent. Rep. 42 (1995).
---------------------------------------------------------------------------
A second indirect consequence of resolving guilt and possible
sentencing in one proceeding is that it tends to make trials in the
civil law system somewhat less adversarial in tone. In the United
States, because the defendant will get another opportunity to present
mitigating evidence prior to sentencing, he has more freedom to deny
responsibility for the crime and to attack the credibility of
prosecution witnesses in an effort to gain acquittal or a hung jury.
For example, the defense can insist at trial that the victim brought
the charges against the defendant out of spite or anger. If that
defense fails, at the sentencing hearing the defense can offer as
mitigating evidence an entirely different theory, such as alcohol-
induced poor judgment, or genuine remorse on the defendant's part. At
German trials, in order for the court to consider mitigating evidence
in sentencing, the defense must present it at trial, which makes
arguing two such disparate approaches very difficult. Thus, in Germany
the defense must make some hard choices about the arguments that it
will raise. It should also be noted that German factfinders will be
aware of the defendant's prior convictions and his character to the
extent that they bear on sentencing. As a result, the defense strategy
of attacking the victim's character while keeping the defendant's prior
record away from the jury, used in certain cases in the United States,
is simply not available in Germany.
Another aspect of continental criminal procedure worth mentioning
in connection with the dual inquiry of German trials is the opportunity
given the defendant to respond to the charges at the very beginning of
the case, a right which is almost universally exercised.\39\ This
allows the defendant to give her version of the events before any
witnesses have been called to give evidence.\40\ This initial step,
coupled with the dual nature of the trial inquiry, makes it very clear
at the outset what the defense will and will not contest, both of which
are important to the judges and the other witnesses. Once the defendant
has addressed the charges, and the issues are more focused, the victim
may find it somewhat less stressful to testify.
---------------------------------------------------------------------------
\39\ Almost all continental defendants choose to respond to the
charges when asked to do so, the only refusals occurring in political
trials where they are used to signify defiance of the legal system as a
form of political protest. See Damaska, supra note 23, at 527 n.42.
\40\ See id. at 528-29.
---------------------------------------------------------------------------
The dual inquiry of the German trial, as well as the timing of the
defendant's evidence,\41\ offer definite advantages for victims
compared to the American system, in which defendants are somewhat more
free to concede nothing and attack all elements of the prosecution's
case. This is certainly not to say that the credibility of victims is
never attacked at German trials. Indeed, sometimes the credibility of a
crime victim is viciously attacked. Still, the risks to the defense of
an abusive examination strategy coupled with the relevance of the
defendant's character and background at trial make the entire
proceeding less stressful for the victim in comparison to the American
system.
---------------------------------------------------------------------------
\41\ The defendant is permitted to respond to the charges, but is
not a witness at the trial in that he is not put under oath. It is
considered unfair in continental systems to force a defendant to give
testimony at a trial charging him with a crime and yet threatening him
with perjury. See Damaska, supra note 23, at 516 n.13.
---------------------------------------------------------------------------
C. Trials are controlled by the professional judges
As mentioned earlier, Germany, like most civil law countries, uses
``mixed'' panels of judges, composed of both professional and lay
judges.\42\ In the case of a serious crime, such as murder or sexual
assault, the trial will take place in front of three \43\ professional
judges and two lay judges. Though lay judges are considered an
important safeguard in the system, control over the trial rests as a
practical matter in the hands of the professional judges. In
preparation for trial, two of the professional judges carefully study
the entire investigative file and take the lead in deciding what
evidence they need to examine at trial. and who they should call to
testify.\44\ This power is not absolute, as both the state's attorney
and the defense attorney may suggest to the judges that additional
evidence be examined or that other witnesses be called to testify.
Because these requests are rarely rejected, they serve as an important
check on the power of judges.\45\ In most criminal cases, however,
there are few or no such motions because the issues in the case are
clear, and the judges will have done a thorough job of reviewing the
files to see which witnesses should be called.
---------------------------------------------------------------------------
\42\ See text accompanying note 25, supra.
\43\ See Gerichtsverfassungsgesetz [GVG] Sec. 76(l)-(2) (1974).
\44\ Langbein, supra note 25, at 62-63. Lay judges are not
permitted to read the dossier. Id. at 67.
\45\ The power that the state's attorney and the defense attorney
can wield by filing motions for additional evidence or to request that
additional witnesses be called is considerable because the judges can
reject these motions only in very limited circumstances. See StPO
Sec. Sec. 244(3)-(5), 245 (1974). There is high risk of reversal on
appeal if such a motion is denied. This has considerable importance in
white-collar criminal cases where motions for additional evidence filed
by the defense can prolong the trial significantly. Thus this power is
considered not only a check on the system, but also a powerful defense
weapon. See Walter Perron, Das Bewwisantragsrecht des Beschuldigten im
Deutschen Strafproze, 314-42, 380-81, 477 (1995). See, e.g.,
Heinrich Kintzi, Moglichketen der Vereinfachung und Beschleunigung von
Strafverfahren de lege ferenda Deutscher Richterbund 325 (1994); Walter
Perron, Beschleunigung des Strafverfahrens mit rechtsstaalichen
Mitteln, Juristen Zeitung, 823 (1994). Helmut Frister, Beschleunigung
der Hauptverhandlung durch Einschrankung von Verteidigungsrechten?,
Strafverteidiger 445 (1994).
---------------------------------------------------------------------------
The judges' primary control over witness selection and the
production of evidence at trial extends to the questioning of witnesses
as well. While the lay judges, state's attorney, defense attorney, and
even the defendant will each have an opportunity to ask questions of
any witness, that opportunity will arise only after the presiding judge
and the second professional judge have finished examining the witness.
However, because the professional judges are usually very well prepared
and very thorough in their questioning, it is normally the case that
the bulk of the testimony given by a witness is elicited by the
presiding judge or the second professional judge.\46\
---------------------------------------------------------------------------
\46\ See Damaska, supra note 28, at 525; Langbein, supra note 25,
at 64.
---------------------------------------------------------------------------
This procedure presents certain advantages to victims in comparison
to the more partisan examination and cross-examination that takes place
in American courtrooms. It is often easier for victims to answer
questions concerning painful, distasteful, or embarrassing events when
these questions come from professional judges who are expected to be
both impartial and fair. Yet, this advantage should not be overvalued,
as defense attorneys in Germany will eventually have the opportunity to
question the victim and may be quite aggressive in attacking the
victim's credibility or character in appropriate cases. Nevertheless,
because the system relies to a considerable extent on professional
factfinders at trial, certain arguments or attacks on the victim made
by defense lawyers in front of American juries are less likely to be
made at a corresponding German trial. In the United States, a defense
attorney may find it advantageous to attempt to shift the jury's
attention to issues that may be peripheral or even irrelevant to the
alleged crime. For example, an American defense lawyer at a rape trial
may feel compelled to argue to the jury that the victim put herself at
risk by being out alone at night or dressing provocatively. In
contrast, such arguments are unlikely to be raised at a German rape
trial because the professional judges know well what issues are
relevant to the case at hand.\47\
---------------------------------------------------------------------------
\47\ There is also perhaps a bit more freedom on the part of German
judges to intervene to restrict certain irrelevant or unfair questions.
StPO Sec. 241 (2) gives judges the authority to reject questions which
are clearly irrelevant or which are unlikely to produce relevant
evidence from witness. See Lutz Meyer-Goner, in Kleinknecht/
Meyer/Meyer-Goner, Strafprozeordnung,
Gerichtsverfassungsgesetz, Nebengesetze und Erganzende Bestimmungen,
42. Auflage, Sec. 241 Nr. 6-15 (1995). In addition, StPO Sec. 68a
prohibits questions which could do harm to the witness' honor, unless
they are absolutely necessary.
But because the German system is nonadversarial in conception, to a
large extent the system requires a consensus among the lawyers and the
judges as to how a trial should properly be conducted and when a lawyer
does not conform to the expectations of the system, judges are not
well-equipped to control such behavior. For that reason there is now
discussion in Germany about whether certain broad procedural rights
accorded to the defendant should be limited to prevent the abuse of
those rights. See, e.g., Heinrich Kintzi, Moglichkeiten der
Vereinfachung und Beschleunigung von Strafverfahren de lege ferenda,
Deutscher Richterbund 325 (1994); Walter Perron, Beschleunigung des
Strafverfahrens mit rechtsstaalichen Mitteln, Juristen Zeitung, 823
(1994). Helmut Frister, Beschleunigung der Hauptverhandlung durch
Einschrankung von Verteidigungsrechten?, strafverteidiger 445 (1994).
---------------------------------------------------------------------------
This discussion of the factfinding role of German judges
illuminates systemic differences between the German and American
systems. European countries believe that factfinding is an art, and
that having professional factfinders among those who will decide the
defendant's fate is important because professionals will generally do a
better job of sorting and evaluating the evidence.\48\ Obviously,
vesting strong power in the judiciary entails risks of abuse, but
European systems try to protect against such abuse through a variety of
means: (1) spreading factfinding authority among more than one
judge,\49\ (2) giving the defense and the state's attorney the right to
participate actively in all evidentiary proceedings, including the
right to request the examination of additional witnesses,\50\ (3)
requiring that verdicts be fully explained and justified by the law and
the evidence, and (4) providing for far broader appellate review of the
trial judgment than is permitted in the United States.\51\
---------------------------------------------------------------------------
\48\ See Damaska, supra note 28, at 507-08.
\49\ Except for the most minor cases, continental trial systems are
always multi-judge panels. See Damaska, supra note 23, at 510.
\50\ See text accompanying note 45, supra.
\51\ Continental systems view appellate review as simply an
extension of the trial process and not an additional step, so that
reconsideration of what happened at trial is considered a normal part
of the process. See Damaska, supra note 28, at 490-91.
---------------------------------------------------------------------------
In contrast, the American criminal justice tradition places less
emphasis on official power and thus American judges play a more passive
role at criminal trials. Even commenting on the evidence by the judge
at the end of the case--a practice that is viewed as desirable and
necessary in other common law countries \52\--is disfavored in most
American jurisdictions.\53\ The notable exception is the federal
system, where comment on the evidence is permitted, but even there most
federal judges choose not to exercise the right to comment.\54\ The
American legal system places the issue of guilt before a body of
nonexperts, who come entirely from outside the system and are expected
to draw conclusions based only on what they hear at trial, with no
additional review of the investigative file. As a result, the system is
open to a broader range of arguments and more aggressive treatment of
witnesses than is the case in German criminal trials, making the
procedure more emotionally trying for victims of serious crimes.
---------------------------------------------------------------------------
\52\ See Graham, supra note 32, at 94-95.
\53\ See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
Sec. 23.6(c), at 889 (Student ed. 1985). Scholars view the state
restrictions on judicial comment as a manifestation of American
populism. See Fleming James et al., Civil Procedure Sec. 7.22, at 372-
73 (4th ed. 1992).
\54\ See Jack B. Weinstein, The Power and Duty of Federal Judges to
Marshall and Comment on the Evidence in Jury Trials and Some
Suggestions on Charging Juries, 118 F.R.D. 161, 169 (1988) (citing
statistics showing that federal judges summarize the evidence in only
27 percent of their cases and comment on the evidence in only 18
percent of their cases).
---------------------------------------------------------------------------
D. Verdicts must be explained and justified at German trials
At any trial--whether in the United States or in Europe--the
rendering of the decision is often a tense and dramatic moment. But the
conclusion of criminal trials in the United States is fundamentally
different from the conclusion of criminal trials in Germany and other
continental countries. In the United States, the verdict for each count
of the charging document is limited to one or two words: guilty or not
guilty. While the trial may have taken a substantial period of time,
the conclusion is swift. The jury is never required to provide any
formal explanation of how or why it reached the verdict in
question.\55\
---------------------------------------------------------------------------
\55\ While special verdicts that include the jury's answers to a
series of questions are possible in civil trials in the United States,
they are generally frowned upon and rarely used in criminal trials. See
Heald v. Mullaney, 505 F.2d 1241, 1245 (1st Cir. 1974); United States
v. Spock, 416 F.2d 165, 181-82 (1st Cir. 1969).
---------------------------------------------------------------------------
Trials in Germany conclude in a similarly dramatic fashion: the
panel of judges enters the courtroom and the presiding judge announces
the judgment, which will also indicate the sentence, if the defendant
has been found guilty. However, the presiding judge also gives an oral
explanation of how the judges reached their verdict, as well as how
they decided upon the particular sentence.\56\ The judges' reasoning
will later be incorporated into a formal written account of the verdict
that reviews the evidence at trial and, depending on the nature of the
trial, explains: (1) which legal issues were raised by the evidence and
how each was decided by the judges, (2) what the factual evidence was
and how the judges resolved any issues of credibility, and (3) how the
judges determined the sentence, if appropriate.\57\
---------------------------------------------------------------------------
\56\ A criminal judgment (Urteil) at a German trial contains both
(1) a dispositive judgment (Urteilsformel), which explains what action
the court took, and (2) a statement of the reasons for the judgment
(Grunde, Urteilsgrunde). Langbein, supra note 25, at 56.
\57\ The court is required to disclose the grounds of its decision
in a general way when it announces the dispositive judgment in court
within four days after the close of trial. See StPO Sec. 268(2). The
court must file a written judgment thereafter. See StPO Sec. 275(1).
See Ellen Schluchter, in Systematischer Kommentar zur
Strafprozeordnung und Zum Gerightsverfassungsgesetz, Sec. 260
Nr. 38 (Neuwied, Kriftel, Berlin 1994); Langbein, supra note 25, at 56.
---------------------------------------------------------------------------
Depending on the complexity of the case, the judges usually draft
this document within a few weeks of the conclusion of the trial. Once
completed, it serves as the basis for an appeal. Such a document, which
may take ten or fifteen pages in even a fairly straightforward criminal
case, is possible only because the factfinding panel includes
professional judges, who understand the requirements of the law and
have the legal sophistication to draft it.\58\ The judgment is drafted
to conform with the statement of the trial decision announced in court,
and it is then signed by the professional judges.\59\
---------------------------------------------------------------------------
\58\ See Langbein, supra note 25, at 56-57.
\59\ Id. at 57.
---------------------------------------------------------------------------
A trial that results in a written verdict with well-articulated
reasons for the judges' decision offers victims (and defendants)
important advantages. First, it is easier to accept a verdict as fair
and just when there is a written document demonstrating that the judges
have done their job fairly, conscientiously, and in conformity with the
law. One can be disappointed with a verdict, yet conclude after
listening to the reasoning behind it that it is, nonetheless,
understandable or even justifiable.
No better example contrasts an unexplained and an explained verdict
than the acquittal of a defendant. Such a verdict, in the American
criminal justice system, is often highly ambiguous. For example, in an
acquaintance-rape trial, did the jury acquit because it found the
victim's testimony not worthy of belief, thus concluding there was no
crime, or did the jury find that although the evidence was very strong,
it was not sufficient to establish guilt beyond a reasonable doubt?
When such a trial takes place in a civil law system it is possible
for the factfinders to say some things that might be of considerable
consolation to the victim, but which would remain hidden behind a two-
word verdict at an American trial. For example, the judges might
explain that they found the testimony of the victim to be entirely
credible but, because the issue was the defendant's mens rea, they
concluded that there was not enough evidence to convict. Or the judges
might explain that it was not possible to resolve a conflict of
credibility between the victim and the defendant and, for that reason,
they had no choice but to return a verdict acquitting the defendant of
the crime.
An American criminal trial seems more and more to be about winning
and losing, and verdicts absent justification or explanation seem to
say that if you are not the winner, you must be the loser. Because it
is very difficult to prove a defendant guilty beyond a reasonable
doubt, we have to expect that in any credible criminal justice system
there will be cases where the evidence is very strong, but still
insufficient to support a conviction. In such a case, an explanation
that sums up the evidence fairly and accurately, and explains why the
evidence was strong, yet insufficient, is much more likely to be
accepted as just by the victim and the defendant as well as the public.
It also prevents the press from claiming, as sometimes happens in the
United States after a verdict of not guilty, that the jury ``found the
defendant innocent,'' when that is not what the jury had intended by
its verdict.
E. German judges have the duty to seek the truth
Because the structure of criminal trials in civil law systems
differs from that in adversarial systems, the issues to be determined
at trial are different as well. At a European trial, the factfinders
must determine whether or not the defendant committed the crime in
question and, if so, what sentence is appropriate for that defendant
for that crime. A German criminal trial is structured as a search for
the truth; the system believes that the best way to reach the truth is
to place responsibility on a panel of judges to examine and weigh all
relevant evidence in order to determine whether the defendant is guilty
of the alleged crime.\60\
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\60\ Professor Mirjan Damaska connects the reluctance of
continental systems to embrace exclusionary rules of various sorts to
the higher commitment such systems make to the search for truth. See
Damaska, supra note 23, at 578-87.
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An American trial operates on different epistemological assumptions
and has a completely different structure. The issue at an American
criminal trial is whether or not the state can prove the defendant's
guilt beyond a reasonable doubt. Neither the judge nor the jury in an
American courtroom has the duty to seek out the truth about the charges
against the defendant. Instead, the trial is a testing of the state's
case to see if the state has sufficient evidence and sufficient skill
to prove the defendant guilty beyond a reasonable doubt. In this trial
structure, the professional judge's role is to be a neutral referee
between the opposing parties, and the judge, consequently, is not
expected to play an active role in the production of evidence. The jury
also has a passive role: questions from the jury are discouraged by the
trial setting, and it is practically unheard of for the jury to ask to
hear additional witnesses or to call for the production of additional
evidence.
The American criminal justice system is also more ambitious in
terms of what it attempts to accomplish from within. It is much more
willing than the German system to suppress reliable evidence at trial
in order to punish police for violating the rules of search and
seizure, even at the cost of a false acquittal.\61\ In addition, the
United States is also proud of its tradition of jury nullification
which permits a jury to nullify the law and acquit a defendant if it
believes that the law or the prosecution is unfair.\62\ The concept of
a group of factfinders--lay factfinders at that rejecting the law in
order to follow its own conception of what is fair and just would never
find a home in the German system, which places much greater emphasis on
accurate fact finding and on the uniform application of the law.\63\
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\61\ While Germany has a constitutionally based exclusionary rule,
it is considerably narrower than the American version and the idea of
excluding all the fruits of an illegal search for the purpose of
deterrence has never been accepted in Germany. Claus Roxin,
Strafverfahrensrecht Sec. 24, at 155-65 (1993). On the philosophical
difficulty that exclusion of reliable and probative evidence presents
to continental lawyers and judges because it conflicts with the duty to
find the truth, see Damaska, supra note 23, at 522-24.
\62\ Rather than requiring that a verdict be justified and
explained, the American system goes in the other direction, permitting
juries to temper the law in a particular case to fit their own
conception of fairness and justice. In Duncan v. Louisiana, in which
the Supreme Court held that the Sixth Amendment right to a jury trial
applied to the states, Justice White referred to the power that juries
have to disagree with the law and to nullify it in appropriate cases.
Duncan v. Louisiana, 391 U.S. 145, 156-58 (1968). But the American
system is clearly ambivalent about jury nullification. Most courts
refuse to instruct juries on their power to nullify the law. See United
States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).
\63\ See Damaska, supra note 28, at 491-92.
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The American political tradition is much more distrustful of
governmental power generally,\64\ and public officials in particular,
than is the German system,\65\ and thus would find it difficult to
accept the dominant trial role that is accorded professional judges in
the civil law tradition. Some of that distrust is evident in the fact
that many of our judges are elected to their position, and attempts to
move states away from the partisan election of judges are usually
soundly defeated.\66\ American distrust of public officials is also
evident in the reluctance to permit judges to comment on the evidence
at trial, even though such comment was permitted at common law.\67\
Instead of vesting control of the trial in judges, the American trial
tries to balance control among the prosecutor, the defense attorney,
the judge, and even the jury. This system of shared power over the
trial naturally requires a much more complicated set of procedures if
the balance is to be maintained and truth is to be discovered. Yet at
the same time, these procedures often need to be subtle and indirect
precisely because power in the system is shared and must be balanced
carefully. Thus, even procedures that are independent of the production
and examination of evidence at trial, such as discovery,\68\ or the
selection of the jury,\69\ have adversarial aspects and can be time
consuming and quite complicated.
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\64\ See Alexis De Tocqueville, 1 Democracy in America 346-47
(Henry Reeve trans., New York, Century Co. 1898) (1835). This aversion
to strong centralized governmental power runs deep in the American
political tradition. See Grant McConnell, Private Power and American
Democracy 5 (1966).
\65\ Professor Mirjan Damaska describes the relationship between
the state and the individual in continental systems as one that borders
on the ``mutual love'' that a parent has for a child. Damaska, supra
note 28, at 530. Professor Damaska believes that the continental
tolerance of strong centralized authority has its roots in the feudal
period, when the emergence of a strong centralized governmental
authority provided relief to citizens from the constant strife among
local fedual lords that had preceded that period, and which had been a
barrier to stability and economic development. See id. at 539-41.
\66\ In Ohio there have been four attempts to reform its judicial
system by moving away from the partisan election of judges. See John D.
Felice & John C. Kilsein, Strike One, Strike Two * * *: The History of
and Prospect for Judicial Reform in Ohio, 75 Judicature 193, 194
(1992). The latest attempt lost by a two to one margin despite
endorsement of the reform by the Ohio Bar Association and the Ohio
League of Women Voters. Id. at 193.
In Texas, the partisan election of judges has directly affected the
development of tort law in that state. See Christi Harlan, Texas
Supreme Court Race Pits Lawyers Against Business Interests, Wall St.
J., Nov. 2, 1992, at B4. Proposals for reform have gone nowhere in
Texas, despite campaign contributions totaling over four and one-half
million dollars spent in the 1986 elections for four seats on the state
supreme court. See Anthony Champagne, Judicial Reform in Texas, 72
Judicature 146, 149, 158-59 (1988).
\67\ See Weinstein, supra note 54, at 163-64. Weinstein suggests
that American restrictions on judicial comment began as a result of the
low regard for judges that existed in colonial times because such
judges were often appointed not for their legal skills but because they
could be relied upon to be loyal to the crown. Id.
\68\ In federal court, for example, the defense does not have a
right to examine witness statements prior to trial nor does the defense
even have a right to a list of the prosecution's witnesses in advance
of trial. See Fed. R. Crim. P. 16(a)(2). But under due process the
Court has ruled that a prosecutor must turn over to the defense
exculpatory material. See Brady v. Maryland, 379 U.S. 83 (1963). But
what exactly constitutes exculpatory evidence is not always clear. See
Weatherford v. Bursey, 429 U.S. 545 (1977). In turn, the defense does
not have to indicate the nature of its defense or any of its witnesses
to the government, unless the defense is that of alibi, insanity or
mental condition, or public authority. However, these enumerated
defenses trigger a responsibility on the part of the government to then
turn over possible rebuttal evidence to the defense, which then has the
option of not putting on such a defense at all. See Fed. R. Crim. P.
12.1-12.3.
\69\ See William T. Pizzi, Batson v. Kentucky: Curing the Disease
But Killing the Patient, 1987 Sup. Gt. Rev. 97, 139-42 (describing a
survey which found that jury selection in New York state took forty
percent of the trial time and often tool longer than the trial itself).
Because the selection of the jury is thought to be nearly as important
as the evidence that is presented, the are books that aim at helping
lawyers pick juries. See e.g., Walter E. Jordan & James J. Gobert, Jury
Selection: The Law, Art and Science of Selecting a Jury (2d ed. 1990).
For wealthy defendants there are consultants available to assist
lawyers in the selection itself by conducting surveys of the community
in advance of trial or by assisting in the courtroom in the courtroom
during the selection process. See Stephen J. Adler, Consultants Dope
Out the mysteries of Jurors for Clients Being Sued, Wall St. J., Oct.
24, 1989, at A1.
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The problem with a system as complicated as the American trial
system is that, at some point, the complexity can itself become a
weakness. Breaking up testimony too often with sidebar conferences, or
shuttling juries in and out of the courtroom so lawyers can argue
evidentiary points of law, can easily distract juries from the task at
hand. It can also be alienating to victims (and other witnesses) when
they feel they are in a system in which the lawyers and judges seem to
be talking among themselves, rather than to the victim or the public at
large. Because the German system vests so much power in the judges to
control the trial, it is less likely to get mired in technical
evidentiary issues than the American system, increasing the likelihood
that victims will feel comfortable within the system. Trials are
generally stressful events, but the American system exacerbates the
situation by placing victims in the middle of heated battles between
the prosecution and the defense that victims may not fully understand.
There is another aspect of the American trial system that underlies
the matters discussed in this subsection but needs to be discussed
directly: that is, it appears to be somewhat easier to convict the
guilty in continental systems than in the American criminal justice
system. One can argue this on several levels--that lay factfinders tend
to be more inclined to acquit than professionals; \70\ that continental
systems admit more evidence than the American system;\71\ that European
systems tend not to have broad exclusionary rules on the model of the
Fourth Amendment exclusionary rule in the United States; \72\ that
decisionmakers in the complex American system have more freedom to make
decisions than their European counterparts whose findings of fact can
be directly reviewed on appeal; \73\ and, finally, that continental
decisionmakers need not be unanimous.\74\ To the extent that trials are
more certain propositions in the German system and conviction of the
guilty is easier, victims are certainly favored--especially in those
cases pitting the victim's testimony against that of the defendant.
---------------------------------------------------------------------------
\70\ See Damaska, supra note 23, at 538-39.
\71\ See William T. Pizzi, Understanding Prosecutorial Discretion
in the United States: The Limits of Comparative Criminal Procedure as
an Instrument of Reform, 54 Ohio St. L.J. 1325, 1359 (1993); Damaska,
supra note 23, at 513-25.
\72\ See Damaska, supra note 23, at 522-24.
\73\ See Id. at 528-29.
\74\ See Id. at 537.
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ii. the right of the victim to participate as secondary accuser at
criminal trials in germany
A. The Nebenklage procedure in perspective
The German Nebenklage procedure permits victims to participate
through counsel at trial on nearly equal footing with the state's
attorney and the defense. Since the purpose of this Article is to
provide perspective on current efforts of the victims' rights movement
in the United States to secure a right to participate and to be heard
at critical stages of the criminal process, one might ask why the
authors did not begin with an examination of the Nebenklage procedure.
There are several reasons for which the authors believe that discussion
of the Nebenklage procedure should follow a more general and thorough
discussion of the treatment of victims at German criminal trials.
In the first place, the Nebenklage procedure has to be understood
as only one difference, among several, in the way victims are treated
in the German criminal justice system. Second, the Nebenklage procedure
is limited in its availability. It is not a general right of victims to
participate in all criminal trials, but rather is available only in the
case of serious crimes that have a very personal impact on the victim
(or the victim's family), including murder, assault, kidnapping, and
sexual assault.\75\ Third, even where the Nebenklage procedure is
available, victims do not frequently choose to participate at criminal
trials as Nebenklager, with the exception of sexual assault victims
whose participation as Nebenklager is much more common.\76\
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\75\ See StPO Sec. 395.
\76\ In 1989 in the district of Baden-Wuurttemberg there was
participation by a Nebenklager in only 3.21 percent of the criminal
trials, and in only 19.2 percent of the cases in which a Nebenklage was
possible did the victim actually choose to participate. See Michael
Kaiser, Die Stellung des Verletzten im Strafverfahren 224, 251 (1992).
In an empirical study by Dr. Staiger-Allroggren of the years 1988-
1990, about 20 percent of the victims having the legal option of
participating in the trial as a Nebenklager did actually choose to
participate. See Peony Staiger-Allroggen, Auswirkungen des
Opferschutzgesetzes auf die Stellung des Verletzten im Strafverfahren
99-100 (1992) (unpublished dissertation, Gottingen University). But in
sexual assault cases the numbers are much higher. The study by Staiger-
Allroggen found that 67 percent of the victims of sexual assault chose
to use the Nebenklage procedure. Id. at 99. Today that number appears
to be even higher. In the Freiburg area for example, it is estimated
that close to 100 percent of the victims of sexual assault participate
at as Nebenklager, due in part to a well-known rape crisis center,
contacted in all cases by the police, which makes sure that victims
have information about the Nebenklage procedure. Interview with Silvia
Fodor, State's Attorney, in Freiburg, Germany (June 23, 1993) (on file
with the Stanford Journal of International Law).
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Finally, the Nebenklage procedure can only be understood against
the background of a trial system that is structured very differently
from that of the American adversarial tradition, as was explained in
Part I. Where a criminal trial is conceived of as a battle between the
prosecution and the defense in front of a neutral judge, and where the
victim will often be the prosecution's ``key witness,'' it is harder
from a structural perspective to understand how the victim's
independent interests fit into what will usually be a pitched, two-
sided battle.\77\ By contrast, in German criminal trials, where the
judges are obligated to examine all the relevant evidence in the case,
and where judges play the central role in both the production and
examination of witnesses,\78\ no such structural problem exists.
Evidence is not divided into ``the prosecution's case'' to be followed
by ``the defense case,'' and the examination of a witness in a German
trial is not broken down into a direct examination to be followed by a
cross-examination as it is in American trials. In short, the
nonadversarial structure of civil law trials makes it easier to
accommodate questions from the victim as Nebenklager without seeming to
create an imbalance at trial.
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\77\ There is considerable force in the argument that, unless the
American system is prepared to accept major structural changes,
victims' rights cannot be grafted onto the existing system without
remaining largely cosmetic. See Deborah P. Kelly, Victim Participation
in the Criminal Justice System, in Victims of Crime: Problems, Policies
and Programs, supra note 6, at 172, 183-84.
\78\ See supra text accompanying notes 43-47.
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Given this background, it is not surprising that a willingness to
grant victims a right to intervene and participate at various stages of
the criminal process is common today among countries that share the
civil law tradition.\79\
---------------------------------------------------------------------------
\79\ For an overview of a victim's right in France to participate
at a criminal trial as ``partie civile,'' see R.L. Jones, Victims of
Crime in France, 158 Just. Peace & Loc. Gov't Law 795 (1994).
Recent Italian efforts to modify its criminal procedure illustrate
how deep the notion of victim participation runs in civil law
countries. In 1989, Italy attempted to reform its civil law system of
criminal procedure by instituting an adversarial trial system which
shifted responsibility for the production of evidence from the judges
to the parties and thus restricted the powers of the judges. See
generally, William Pizzi & Luca Marafioti, The New Italian Code of
Criminal Procedure: The Difficulties of Building an Adversarial Trial
System on a Civil Law Foundation, 17 Yale J. Int'l L. 1, 14 (1992). But
the new Code of Criminal Procedure did not touch the tradition of
permitting victim participation at trial, so that a victim's attorney
participates on an equal basis with the pubblico ministero (the
equivalent of the state's attorney in Germany) and the defense
attorney. Codice di Procedura Penale [C.P.P.] arts. 410, 493, 496, 498,
523, 493 para. 2.
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B. The Nebenklage procedure today
Although the Nebenklage procedure has been a part of German
criminal procedure since 1877,\80\ a major reform of the Nebenklage
procedure took place in 1986. It had become clear by the early 1980's
that the procedure needed reform, and there was considerable discussion
and debate at that time over possible changes.\81\ Part of the impetus
for reform came from the unsatisfactory way in which the Nebenklage
procedure was working in practice. For example, the category of crimes
that permitted victim participation seemed at the same time to be too
broad and too narrow. It was too broad in that it allowed injured
traffic accident victims to intervene as Nebenklager, which they
frequently did. In such cases, victim participation was driven by the
desires of the insurance companies, rather than the wishes of the
victims, because the Nebenklage procedure permitted insurance companies
to obtain discovery about the accident more efficiently and without the
costs that would be involved if the insurance company had to use the
civil process to obtain such information.\82\ The use of the Nebenklage
procedure to further the private interests of insurance companies was
certainly not the objective of the procedure, and it was generally
recognized that the Code needed reform to prevent this.
---------------------------------------------------------------------------
\80\ The origins of the Nebenklage procedure in Germany go back to
Germany's creation of a code of criminal procedure in 1877. See Thomas
Weigend, Deliktsopfer und Strafverfahren, 131-34 (1989). There was
apparently no historical precedent for the Nebenklage concept, and it
is unknown from where the drafters of the German code developed it. Up
until the adoption of the code the victim had been excluded from the
trial process in Germany. Id.
\81\ See generally Peter Rie, Die Rechtsstellung des
Verletzten im Strafverfahren, Gutachten C fur den 55. Deutschen
Juristentag, C 28-C 33 (1984); Peter Rie & Hans Hilger, Das
neue Strafverfahrensrecht, 1987 Neue Zeitschrift fur Strafrecht 145,
153 nn. 184-85.
\82\ See Jan Schulz, Beitrage zur Nebenklage 102-03, 166 (1982);
Verhandlungen des Deutschen Bundestages, 10. Wahlperiode, Drucksache
10/5305, 12 (1986).
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At the same time, the category of crimes for which victims were
permitted to participate as secondary accusers at trial was too narrow
in that sexual assault was not specifically included. Sexual assault
victims had been able to use the Nebenklage procedure on the theory
that sexual assault involved an assault (which was a listed crime) and
also had the sort of personal impact on the victim that justified the
use of the procedure.\83\ Nonetheless, women's groups argued that the
Nebenklage procedure needed to be improved to give victims of sexual
assault greater rights to participate at trial; without these rights,
such victims arguably were being victimized a second time by the
system.\84\ Opposition to broadening the Nebenklage procedure came
primarily from the defense bar, which argued that adding a secondary
accuser, who would stress the victim's point of view at trial, would
strengthen the position of the state's attorney in a dispute over
procedure or evidence, making it more difficult for the defense
attorney to prevail in such confrontations.\85\
---------------------------------------------------------------------------
\83\ See Reinhard Bottcher, Das neue Opferschutzgesetz, 1987
Juristische Rundschau 133, 135.
\84\ See Felicitas Selig, Qpferschutzgesetz-Verbesserung fur
Geschadigte in Sexualstrafverfahren?, Strafverteidiger 1988, 498, 499.
\85\ See Eberhard Kempf, Opferschutzgesetz und
Strafverfahrensanderungsgesetz 1987, Gegenreform durch Teilgesetze,
Strafverteidiger 1987, 215, 216-20; Bernd Schunemann, Zur Stellung des
Opfers im System der Strafrechtspflege, Neue Zeitschrift fur Strafrecht
1986, 193, 196-99; Hans-Joachim Weider, Pflichtverteidigerbestellung im
Ermittlungsverfahren und Opferschutzgesetz, Strafverteidiger 1987, 317-
18.
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The upshot of the debate was a number of important changes to the
Nebenklage procedure.\86\ First, in order to stop abuse of the
Nebenklage procedure by insurance companies interested only in
obtaining discovery for civil purposes, assault victims must now allege
serious physical injury, or some other damage to themselves or their
reputation,\87\ in order to join the trial as Nebenklager. A second
important change was the addition of sexual assault to the list of
Nebenklage-eligible crimes. This means that sexual assault victims no
longer have to justify their participation indirectly using the theory
that sexual assaults involve assaults,\88\ but now can participate
based on the sexual assault itself. Because sexual assault is the
category of crime in which victims overwhelmingly elect to participate
in the trial, the decision to list sexual assault specifically among
the crimes in the Nebenklage statute was an important recognition of
the special problems that rape victims face in court.
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\86\ See Opferschutzgesetz (BGBl.I 1986, 2496).
\87\ For example, if it were alleged that the victim had
contributed to a traffic accident through his own unlawful or negligent
behavior, and the judges needed to inquire into such contributory
negligence in order to pronounce a just sentence, then the victim would
have a sufficient interest to permit participation at trial. See Lutz
Meyer-Goner, supra note 47, Sec. 395 Nr. 11.
\88\ Nevertheless, prior to the 1986 reform, in most rape cases the
victim could also participate as a Nebenklager because the German
courts saw in every sexual assault a personal insult and, frequently, a
physical assault as well (which both qualified for the Nebenklage). See
text accompanying note 83, supra.
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The third change was to broaden the Nebenklage procedure to permit
a lawyer representing the victim to participate at pretrial proceedings
as well as at trial.\89\ This extension has given the victim's lawyer
the opportunity to examine the investigative file in advance of trial
and to suggest further factual investigations to the state's attorney
if the file appears incomplete from the victim's point of view.
Psychologically, it has placed the victim's attorney on a more even
footing with both the state's attorney and the defense attorney
throughout the criminal process.\90\
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\89\ See StPO Sec. Sec. 406g(1)-(2), 406e (1988).
\90\ One difference between the defendant and the victim--and one
restriction on the rights of Nebenklager enacted in 1986--is that the
victim is not permitted to appeal in order to seek a harsher sentence
for the defendant. See StPO Sec. 400(1). But given the fact that
victims and their attorneys usually do not see it as their function to
get too involved in the specifics of sentencing--since it is more a
matter for the state's attorney (see text accompanying note 121,
infra)--this restriction is not significant. See Dirk Fabricius, Die
Stellung des Nebenklagevertreters, Neue Zeitschrift fur Strafrecht 1994
257, 260.
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A fourth major change in the Nebenklage procedure has made it
easier for indigent victims to receive legal advice by providing for
the payment of their legal fees, including those for pretrial
consultation between the victim and an attorney. Such fees will be paid
even if the victim ultimately decides not to participate at trial as
Nebenklager.\91\ This encourages victims to explore their legal options
by assuring them that their indigence will not stand in the way of
obtaining legal representation.\92\ In fact, the extension of legal
fees to cover a victim's pretrial consultations with counsel gives an
indigent victim some advantages over even an indigent defendant:
because the defendant will be responsible for the victim's legal fees
should she be convicted, the defendant's financial burden could be
considerably greater than the victim's.\93\
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\91\ See StPO Sec. 406g(3)-(4) (1988). For more details, see
Bottcher, supra note 83, at 137; Georg Kaster,
Prozekostenhilfe fur Verletzte und andere Berechtigte im
Strafverfahren, Monatsschrift Fur Deutsches Recht 1994 1073-1077.
\92\ While a victim's indigency will usually be determined quickly,
no victim will be responsible for those legal fees incurred prior to
the determination of indigency in the event that the victim is later
determined not to be indigent. See StPO Sec. 406g(4) (1988).
\93\ See Weider, supra note 85, at 318.
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This last reform might seem to threaten the German system with a
heavy financial burden. However, the provision of legal counsel to
indigent victims so that they can participate at trial as Nebenklager
is not as costly as it may appear for two reasons. The primary reason
is that, as explained earlier,\94\ most victims do not choose to
participate in the process as Nebenklager, with the important exception
of those who have been victims of sexual assault. A second reason is
that legal fees for Nebenklager are not nearly as high as they would be
in the United States.\95\ Because professional judges have the main
burden of preparing the case for trial in the German system, pretrial
preparation on the part of lawyers is much more limited than it would
be for a similar case in the United States. It is not the function of
the victim's lawyer (or the defense lawyer or even the state's attorney
\96\) to seek out witnesses and to interview such witnesses prior to
trial; indeed, the system prefers that lawyers not conduct such
interviews.\97\ If the victim (or the defendant) tells her lawyer that
a certain witness can corroborate her story, the attorney's function is
to bring the name of that witness to the attention of the state's
attorney, who will then see that the witness is interviewed by the
police and that the interview is made a part of the file.\98\ Thus,
pretrial preparation by the victim's attorney usually entails a careful
review of the file, and a discussion of its contents with the victim to
make sure that it is complete from her point of view; not much more is
required in the way of preparation for trial.\99\
---------------------------------------------------------------------------
\94\ See text accompanying note 76, supra.
\95\ This is true of fees both for victims' attorneys and for
defense attorneys. For a typical rape case, the minimum fee set by the
bar association in 1993 was DM 1000 or approximately $650. Interview
with Regina Schaaber, Rechtsanwaltin, in Freiburg, Germany June 15,
1993) (on file with the Stanford Journal of International Law). This is
the same for both the victim's lawyer and the defense lawyer in such a
case. Id. A defendant could, of course, choose to pay more for an
attorney.
\96\ Even the state's attorney does not prepare witnesses to
testify at trial as would an American prosecutor. The state's attorney
is more of a judicial figure. Also, a state's attorney who interviewed
such a witness might well be recused from the case on the ground that
he or she had become biased. Interview with Silvia Fodor, supra note
76.
\97\ See Part I.A supra (describing the German system's strong
preference for narrative testimony).
\98\ In Germany, there is a highly professional police force that
has specialized units for crimes such as murder and tape. It is the job
of the police to handle the investigation. This includes making sure
that any laboratory or crime scene tests are undertaken, that all
witnesses who may have relevant evidence have been interviewed, and
that these interviews have been reduced to detailed statements that
have been read and signed by the witnesses. Interview with Silvia
Fodor, supra note 76.
\99\ Interview with Regina Schaaber, supra note 95.
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C. The Nebenklage procedure and sexual assault cases
As stated earlier, it is only in a relatively small percentage of
those cases in which the victim is eligible to participate through the
Nebenklage procedure that she chooses to do so.\100\ Presumably, most
crime victims in Germany do not think their participation at trial is
likely to benefit them directly; instead, they may be content to leave
the investigation and the adjudication of the criminal case in the
hands of the judges. The exception to this is the category of sexual
assault crimes, where there has been a considerable increase in the
percentage of victims who wish to participate in the criminal process
as secondary accusers.\101\ In the area around Freiburg, for example,
virtually all adult victims of sexual assault choose to exercise their
right to participate at trial using the Nebenklage procedure because
they feel a personal stake in the trial and want their own lawyer
present.\102\ Sexual assault victims' desire for legal representation
may be due to the highly personal and demeaning nature of the crime, as
well as the nature of such trials, where it is not unusual for the
character or reputation of the victim to come under attack.
---------------------------------------------------------------------------
\100\ See supra text accompanying note 76.
\101\ Id.
\102\ Interview with Regina Schaaber, supra note 95; interview with
Silvia Fodor supra note 76. With respect to children who have been
sexually assaulted or abused, in some cases by a family member, the
percentage of those choosing to participate at trial is much lower, but
is estimated to be slightly more than half. Interview with Regina
Schaaber, supra.
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Because sexual assault cases have become so closely linked with the
Nebenklage procedure, this part of the article will use the crime of
sexual assault as an example to show how the procedure works in
practice.
There are two main avenues whereby a sexual assault victim will
learn about the Nebenklage procedure. The first is through the German
police, for whom it is now standard practice to inform rape victims
about their right to participate at the trial as Nebenklager.\103\ The
other avenue by which victims learn of this right is through rape
crisis centers, to which rape victims will often obtain referrals. Such
centers will inform victims of their rights under the Nebenklage
statute, and will usually be able to provide a list of lawyers who
customarily represent victims in such cases.\104\ In a typical case,
where counsel is contacted by the victim or the victim's family shortly
after the crime was reported to the police, the attorney will meet with
the victim soon thereafter to discuss what will follow
procedurally.\105\ After the investigation of the case is complete and
trial has been set, the attorney for the victim will examine the
investigative file to make sure that it is complete from the victim's
perspective. The inspection of the investigative file is an important
step in the process because it provides an idea of what evidence will
be presented at the trial and how the trial may affect the victim.\106\
Usually counsel for the victim will meet with her briefly prior to
trial, unless the case is very straightforward, to explain the trial
procedures and to give her some idea of what is likely to happen.\107\
---------------------------------------------------------------------------
\103\ Interview with Silvia Fodor, supra note 76; see also Staiger-
Allroggen, supra note 76, at 81. A copy of the standard notice provided
by the German police to crime victims informing them of their right to
avail themselves of the Nebenklage procedure is on file with the
Stanford Journal of International Law.
\104\ Interview with Silvia Fodor, supra note 76; interview with
Regina Schaaber, supra note 95.
\105\ Interview with Regina Schaaber, supra note 95.
\106\ Id.
\107\ Id.
---------------------------------------------------------------------------
A victim who chooses to participate at trial as a secondary accuser
becomes, in essence, a party at the criminal trial and receives
treatment equal to that afforded the defendant in the courtroom. What
this means as an initial matter is that the victim is entitled to
remain in the courtroom throughout the proceedings and can participate
through counsel much like the defendant. The majority of rape victims
choose to remain in the courtroom because they view the trial as
``their'' trial.\108\ If a victim wishes to remain in the courtroom
throughout the trial, she will sit next to her attorney at one of the
tables in the front of the courtroom, just as the defendant sits next
to his attorney. But it is not necessary for the victim to remain in
the courtroom in order to use the Nebenklage procedure, For those
victims who find it too painful and stressful to remain in the
courtroom throughout the trial, the Nebenklage procedure ensures that
they will nonetheless have an attorney present to represent their
interests and to keep them informed of the progress of the trial.\109\
---------------------------------------------------------------------------
\108\ Id.
\109\ Id.
---------------------------------------------------------------------------
The primary function of the victim's attorney is to represent her
interests at trial. Generally, this means that the victim's attorney
functions rather like the attorney for the state or the defense. All
three will be consulted on any scheduling matters and each, in turn,
will have an opportunity to question witnesses, bring appropriate
motions, and present a closing argument at the end of the trial.\110\
---------------------------------------------------------------------------
\110\ See StPO Sec. 397(1).
---------------------------------------------------------------------------
Victims of sexual assault in Germany have certain testimonial
protections-protections which are somewhat broader than those granted
rape victims in the United States\111\--that would normally be asserted
by the victim's attorney at the appropriate point in the trial. A rape
victim at a German trial can seek to have the public removed from the
courtroom when she is testifying, and this motion will be granted
unless the judges determine that the public interest in hearing the
victim's testimony outweighs the interest of the victim.\112\ Such
motions are generally granted and thus provide some privacy for the
victim by permitting her to testify with the public gallery cleared of
spectators.\113\
---------------------------------------------------------------------------
\111\ Exclusion of the public at an American trial would require a
hearing and showing that injury to the victim would be likely. See
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09 (1982).
There is no parallel to the removal of the defendant from the courtroom
during the examination of the victim. The furthest the Court has gone
has been to uphold a conviction where a rape victim who was six at the
time was permitted to testify from outside the courtroom but the
victim's testimony was broadcast into the courtroom so that the
defendant could see the witness as the witness testified. See Maryland
v. Craig, 497 U.S. 836 (1990).
\112\ See GVG Sec. 171b.
\113\ See Bottcher, supra note 83, at 139-40; Regina Schaaber,
Strafpozessuale Probleme bei Verfahren wegen seuellen
Miorauchs, Streit 1993, 143, 151-52; Staiger-Allrogen, supra
note 76, at 90-93.
---------------------------------------------------------------------------
The victim may also move to have the defendant removed from the
courtroom while she testifies. Such a motion may be granted if the
victim is under the age of sixteen, and the judges fear that she will
suffer additional damage from having to testify in the presence of the
defendant.\114\ If the defendant is removed from the courtroom during
the victim's testimony, his defense attorney will remain in the
courtroom and will be able to question the witness. After the victim
has finished giving her account of the crime and answering questions,
she will then leave the courtroom. At that point, the defendant will be
brought back in and the presiding judge will relate to the defendant
the substance of the victim's testimony. If the defendant has questions
for the victim, the presiding judge will again remove the defendant
from the courtroom, recall the victim, and put those questions to
her.\115\ This process will continue until the defendant has no more
questions for the victim.
---------------------------------------------------------------------------
\114\ See StPO Sec. 247. If the victim of the sexual assault is
under 16, the court has discretion to remove the defendant from the
courtroom where there is reason to fear substantial damage to the
victim's general welfare from the confrontation. Id. Such motions will
usually be granted. If the victim is 16 or older, there is also the
possibility, of removing the defendant if there is reason to fear that
the victim might not tell the truth or if there is a high risk of
severe damage to the victim's health, such as a situation where the
victim is receiving psychotherapy as a consequence of the crime. See
Bottcher, supra note 83, at 138-39; Schaaber, supra note 113, at 150-
53. As a statistical matter, it is not often that courts remove the
defendant while the victim is testifying. See Kaiser, supra note 76, at
193; Staiger-Allroggen, supra note 76, at 90-93.
\115\ See Schaaber, supra note 113, at 151.
---------------------------------------------------------------------------
German trials reverse the order in which the defendant and victim
give their testimony from that in which they give it in the United
States. At an American criminal trial, the defendant does not testify
until the state's case has been completed; thus the defendant, who
cannot be sequestered, will give his version of the events after the
victim has testified and after all the state's evidence has been
presented. The opposite is true in Germany: the defendant will
typically respond to the charges at the start of the trial before any
witnesses have testified, so that the victim's testimony will follow
the defendant's response to the charges.\116\ Since the victim who
participates at the trial as Nebenklager has a right to remain in the
courtroom and is not subject to sequestration before she testifies, she
will have heard the defendant's account of the events in question
before giving her evidence.
---------------------------------------------------------------------------
\116\ See Damaska, supra note 23, at 527-29.
---------------------------------------------------------------------------
A primary concern about victim participation in criminal trials in
the United States is that it might destroy the adversarial balance and
force the defendant to respond to pressure from both the prosecutor and
the victim's attorney.\117\ This appears not to be a problem in the
less adversarial German trials because the judges do the bulk of the
questioning of the witnesses, and lawyers play more of a supplemental
role. In addition, as mentioned earlier, it is easier to accommodate
questions from the victim's attorney when others who have a certain
perspective on the evidence are also permitted to ask witnesses
questions.\118\ For example, a forensic or psychiatric expert who gives
testimony during the trial will usually remain in the courtroom to ask
a witness questions if the testimony touches on her area of expertise.
---------------------------------------------------------------------------
\117\ It has been argued that even permitting the victim to sit at
the prosecution table during trial is ``inherently prejudicial''
because it poses ``an unacceptable risk'' that the defendant's right to
a fair trial will be compromised. See Goddu, supra note 7 at 266-67.
Even the participation of victims at sentencing, which all states now
permit, has been strongly attacked as inappropriate and prejudicial.
See, e.g., Henderson, supra note 36, at 996, 1002; Abraham Abramovsky,
Victim Impact Statements: Adversely Impacting upon judicial Fairness, 8
St. John's J. Legal Comment, 21 (1992).
\118\ See StPO Sec. Sec. 240, 80(1), 243(4); Meyer-Goner,
supra note 47, at 240 Nr 3.
---------------------------------------------------------------------------
There remains, of course, the possibility that a victim's attorney
will be overly aggressive at the trial, pursuing a line of questioning
that the defendant believes to be very unfair and overly hostile. In
such a situation, however, the defendant and his attorney have an easy
solution: the defense attorney can advise her client to stop answering
questions from the victim's attorney.\119\ Unlike in the United States
where, having testified on direct examination at trial, a defendant
must answer relevant questions on cross-examination, the defendant at a
German trial always has a right to refuse to answer any questions and
would be likely to do so if he believes that the victim's attorney is
being unfair.\120\
---------------------------------------------------------------------------
\119\ Interview with Ulf Kopcke, Rechtsanwalt, in Freiburg, Germany
June 18, 1993) (on file with the Stanford Journal of International
Law); interview with Regina Schaaber, supra note 95.
\120\ There is an important difference between the defendant and
others who give evidence at a criminal trial: the defendant is never
considered to be a witness. See StPO Sec. 80(2). While the defendant is
asked to respond to the charges at the start of the trial, and usually
does give his version of the facts, the defendant may refuse to answer
any question precisely because he is not a witness. See Damaska, supra
note 23, at 526-30. Thus, unlike other witnesses, who may be put under
oath and who are required to answer relevant questions (assuming no
privilege exists), the defendant in civil law systems is never required
to take an oath and is always free to exercise his right to remain
silent. Id.
---------------------------------------------------------------------------
While the victim's attorney participates at the trial on rather an
equal basis with the state's attorney in questioning the witnesses and
addressing the judges, their roles remain distinct and the function of
the victim's attorney is limited to representing the victim. For
example, there is an almost unwritten rule that victims' attorneys do
not request or recommend a specific length of sentence in their closing
argument to the court.\121\ That is considered a matter more properly
the responsibility of the state's attorney.\122\ In the United States,
by contrast, the role of the victim seems to center on the sentencing
phase.\123\
---------------------------------------------------------------------------
\121\ Interview with Ulf Kopcke, supra note 119; interview with
Regina Schaaber, supra note 95.
\122\ Interview with Ulf Kopcke, supra note 119; interview with
Regina Schaaber, supra note 95.
\123\ The statutory right of victims in the United States to file
victims' impact statements is a subject of heated controversy. See
supra text accompanying notes 3-4; Berger, supra note 20.
---------------------------------------------------------------------------
D. Victims of sexual assault in the courtroom: a final caveat
The danger that readers may get a misimpression of the nature of
sexual assault trials in Germany based upon the above account warrants
a final caution. While victims of sexual assault in German courtrooms
have a number of advantages over their counterparts in American
courtrooms--such as the ability to give testimony in narrative form,
the fact that the professional judges will usually conduct the bulk of
the questioning, and the option of participating at trial through their
own counsel--one should not conclude that trials in Germany are
necessarily ``easy'' on the victim. Although the system is not
structured as an adversarial trial system, trials in Germany do have
adversarial features and safeguards. This means that in cases involving
a battle of credibility between the defendant and the victim over what
occurred at the time of the alleged crime, as is common in
``acquaintance rape'' cases, there will often be demanding and
sustained questioning of the victim by the defense attorney. Where
directly relevant to issues in the trial, aspects of the victim's
character may also be called into question and attacked
aggressively.\124\
---------------------------------------------------------------------------
\124\ In June of 1993 the authors watched a trial in the
Groe Strafkammer (the highest state trial court) in Freiburg,
Germany, in which two defendants stood charged with rape. Both the
victim and the defendants admitted that they drove out of town and
injected themselves with heroin. The victim claimed that she was then
raped by both defendants, while the defendants maintained that the
victim had wanted to have sex with both of them and had expected them
in return to try to procure more drugs for them to share the following
day. The defendants insisted that the victim prostituted herself for
drugs regularly to support her drug addiction, and some of their
friends testified that she was even doing so during the trial. Each
time that a witness came forward and alleged that he had seen the
victim acting as a prostitute, the victim was recalled to give
testimony about the incident (always denying either that the incident
took place or that she was prostituting herself). This meant that
during the three-week trial, the victim had to give testimony on
several different occasions, A copy of the judgment in this case is on
file with the Stanford Journal of International Law.
---------------------------------------------------------------------------
In short, while the structure of German trials offers rape victims
many procedural advantages over the more highly adversarial trial
system in the United States, there are adversarial aspects to the
German system that must not be overlooked in evaluating the treatment
of victims in that system.
conclusion
This Article concludes that victims of serious crimes have a number
of advantages in the German system, due to the nature of civil law
criminal proceedings, and the availability of the Nebenklage procedure.
However, this does not mean that the German criminal justice system is
preferable to or stronger than the American one; how a criminal justice
system treats victims is only one of many important measures by which
it can be evaluated. This Article is limited in scope to the victim's
perspective within the German system. Any system that treats, or
strives to treat, victims with dignity and respect must not risk
tolerating false convictions or the abuse of citizens by the police.
Thus, a thorough examination of the German system and a blueprint for
specific reforms of the American one would have to take these broader
concerns into account. Moreover, victims' rights in the German system
may not be directly translated into the American adversarial system due
to the different political and epistemological assumptions on which the
two systems are based.
Nevertheless, this Article's examination of the differences in the
ways that victims are treated in the two trial systems should further
the goal of encouraging productive discussion between victims of crime
and those within the American criminal justice system over the
frustrations that victims feel. Such discussion has been painfully
lacking in this country for a long time. While it is often difficult
for victims to explain exactly what it is about the system that makes
them feel excluded or mistreated,\125\ and those educated in the
American adversarial tradition seem equally at a loss to understand
what can be done for victims beyond the state constitutional amendments
now in place,\126\ bridging this communication gap becomes increasingly
important as the victims' rights movement continues to grow. It is the
authors' hope that this Article's comparative perspective will add
depth and understanding to the debate.
---------------------------------------------------------------------------
\125\ See text accompanying notes 17-18, supra.
\126\ See text accompanying notes 19-21, supra.
---------------------------------------------------------------------------
Prepared Statement of Roberta Roper on Behalf of the National Victim's
Constitutional Amendment Network
On behalf of the National Victims' Constitutional Amendment Network
(NVCAN), I am honored to speak in, support of Joint Resolution 3, a
Constitutional Amendment for crime victims' rights. In addition to co-
chairing NVCAN, I am director of the Stephanie Roper Committee and
Foundation, Inc., a Maryland crime victims' group bearing the name of
our slain daughter.
I believe that the experiences of victims and families like my own
clearly demonstrate the need to alter our constitution to protect crime
victims' rights for all time. While great progress has been made to
improve the treatment of America's victims of violent crime, it is
abundantly clear that these efforts are insufficient. Our nation's
fundamental charter must include protected rights for victims as well
as offenders.
The experiences of countless victims reflect the failure of our
criminal justice system to acknowledge the reality of crime. While the
state is the legal victim, the reality is that the state is not raped
or robbed * * * does not bleed or die * * * individual citizens suffer
the physical, financial and emotional consequences of crime.
Acknowledging this reality means that crime victims should never be
treated as pieces of evidence or shut out of proceedings that are the
most important events in their lives. Seventeen years ago, our oldest
child, our daughter Stephanie, was kidnaped, raped and murdered. Our
family learned first hand, that unlike the men who chose to take our
daughter's life, we had no right to be informed, to be present or to be
heard at criminal justice proceedings. To our horror, we were not kept
informed of proceedings, we were excluded from observing the trial, and
were denied the right to provide an impact statement at sentencing.
Stephanie became another statistic, a faceless stranger whose voice was
silenced.
As parents, my husband and I struggled to preserve our family of
four surviving children. For them, the American dream was shattered.
Everything our children were taught to respect and believe in was
challenged and all but destroyed. Over the succeeding years, advocating
for and assisting other victims and families has been a major part of
our efforts to preserve our family and become survivors.
Since 1982, we have led a Maryland advocacy and assistance
organization that is considered one of the most effective voices for
victims in our nation. We have seen great progress in our state, and
across the nation. Our efforts in Maryland have resulted in the passage
of more than fifty laws including a state constitutional amendment for
crime victims' rights passed in 1994. Yet sadly today, those rights
largely remain ``paper promises''. For too many victims and families,
the criminal justice system remains more criminal than just when it
comes to protecting their rights. Consequently, the proposed federal
amendment, is for them, an issue whose time has come.
As you have heard, this issue was first identified by the
President's Task Force on Victims of Crime who recommended a
constitutional amendment in its final report in December, 1982. The
Task Force concluded that the American criminal justice system's
treatment of victims was a national disgrace * * * victims too often
were treated like ``pieces of evidence'' * * * used and then thrown
away. The Task Force recognized that in order to restore an essential
balance to this system, the United State's Constitution would have to
be amended to identify and protect certain rights of crime victims.
These rights would not diminish those of an accused or convicted
person, but would share equal protection under the law.
The United State's Constitution is the supreme law of the land. It
surrounds an accused person with numerous protected rights, and rightly
so. However, it is silent in regard to victims. Until a federal
constitutional amendment is passed that balances the rights of a victim
with those of an accused person, victims will remain second class
citizens.
I am proud to say that the Maryland State Constitutional Amendment
for victims' rights has vastly improved the treatment of victims.
Nevertheless, many victims' rights are ignored or denied because unlike
the defendant's rights, they are not rooted in the Constitution of the
United States. And unlike a criminal defendant, a victim of criminal
violence has no legal standing under the Constitution to assert their
rights.
Everyday, my work as an advocate brings me in contact with victims
and survivors in my state. Contacts include individuals like Teresa
Baker, whose only son was murdered. When her son's killer pled guilty
to 2nd degree murder and was sentenced to thirty years, no one
explained that under the terms of the plea agreement the offender would
have a sentencing reconsideration and be released in less than three
years! And while Mrs. Baker fulfilled the victim's requirement to
request notification, she was not notified and came upon this
information by chance. As painful as that discovery was, her primary
question was, ``why didn't someone tell me the truth?''
In another recent Maryland case, parents, whose infant son was
killed, had good reason to question the effectiveness of victims'
rights laws. Despite a statutory and constitutional right to attend the
trial, the judge ruled to exclude them. They believe that their right
to learn the painful truths of the case was unfairly denied.
The late Justice of the Supreme Court William Brennan, whenever
asked for his definition of the Constitution answered: It is ``the
protection of the dignity of the human being and the recognition that
every individual has fundamental rights which government cannot deny
him.'' Sadly, that is why this amendment is needed for victims. When
our founding fathers drafted the Constitution, they were very careful
to protect persons who were accused of or convicted of crime from the
abuses of government. They never envisioned a time when millions of
innocent American citizens would suffer abuses of government, and be
denied the protection of basic human rights because they were made
victims of crime Clearly, if we are to preserve a criminal justice
system that protects all of us, we should not re-injure those for whom
the system is most dependent upon!
Critics may tell you that we must not ``tinker'' with the
constitution. And we agree that constitutions should not be amended
except for the most serious reasons. We must remember and respect the
wisdom of our founding fathers. They were creating a ``more perfect
union,'' not a perfect one. They recognized that laws and institutions
would require the ability to change to meet the needs of an evolving
society. If that were not so, black American citizens would still be
someone's property, and women would not be able to vote! The whole
history of our country had taught us that basic human rights must be
protected in our fundamental law * * * our constitution.
Some opponents will argue that we need not amend our Constitution,
but only strengthen federal statutes for victims' rights. Our nation's
tragedy in the Oklahoma City bombing case demonstrates the inadequacy
of such an argument. In addition to their personal sufferings and
losses, victim survivors not only bore the financial burdens of going
to another state for a trial, but were forced to choose either to
observe the trial or to submit victim impact statements at sentencing.
As a result, most survivors sacrificed the right to be heard so that
they could better learn the truths that might emerge from the trial. As
you know, Congress passed the Victim Allocution Clarification Act of
1997, in the hope of remedying this problem. Still the court denied
victims their statutory rights, and ruled that the defendant's
Constitutional rights would prevail.
Other critics argue that an amendment will create an overwhelming
burden on the states. The truth is that there is no evidence that the
cost of a phone call or letter, or applying a victim's rights has
created financial burdens or delays. The truth is that our nation
spends millions of dollars for criminal needs and pennies for victims!
The reality is that many states and the federal government have created
crime victim funds based on convicted offenders' fees and fines to
provide for the delivery of victim services.
The cruelest and most undeserved opposition however, is voiced by
those who say that allowing victims or survivors to be heard at
sentencing will inject irrelevant emotion and create classes of
victims. To the contrary, this is not about the character of the
victim, but about the consequences of the crime that a convicted
offender chose to inflict! If my daughter had been a homeless person or
a prostitute, she had the right not to be violated. The information
brought by victims to sentencing courts or at post-sentencing
proceedings is not a mandate or a veto, but a voice. The court retains
the discretion to decide the value of that information, recognizing
that every crime's consequences are unique.
I urge all of you to listen to the law-abiding citizens of our
land. Ask the people of America how they would wish to be treated if
they were victims of crime. In 1994, the people of Maryland responded
with an astounding 92.5 percent vote of approval for our amendment. I
am confident that your constituents will tell you that it is time to
protect victims' rights for all time in the U.S. Constitution. Never
before has there been a proposed law, bipartisan in support, that could
make such a significant and positive difference in the lives of so many
Americans every year. We must remember that the Constitution belongs to
the people. As part of our social contract with government, the people
not only expect protection, but when that protection fails, deserve
fairness and justice * * * even for crime victims. Joint Resolution 3
is the only amendment that advances the rights of citizens to protect
them from abuses of government. It is also the only amendment that
expands rights of individual citizens to participate in government.
America supports a victims' rights amendment. Victims' rights and this
amendment are right for America!
Roberta Roper is the director of the Stephanie Roper Committee and
Foundation, Inc. Following the brutal murder of their oldest child,
Stephanie, in April, 1982, Roberta and Vince Roper founded the
Committee and Foundation, a non-profit, volunteer advocacy and
assistance organization that is nationally recognized as an effective
voice for victims of criminal violence. The Committee advocates for
victims' rights and services in Maryland, and the Foundation provides
information, assistance, court accompaniment, and free peer support
groups for families and friends of homicide and drunk driving victims.
Since 1982, Roberta has actively participated in a wide variety of
victims' services, assistance and advisory groups. She currently chairs
Maryland's State Board of Victim Services, is co-chair of the National
Victims' Constitutional Amendment Network, and co-chaired the Maryland
Coalition for a Constitutional Amendment for Crime Victims' Rights from
1988-1994. Roberta has been a member and technical resource for the
National Organization for Victim Assistance and the National Center for
Victims of Crime, and recently served on the Maryland Commission on
Criminal Sentencing Policy. She has been recognized by Presidents
Reagan (1988) and Clinton (1994) and received their awards for
outstanding service to victims of crime.
Prepared Statement of Joe Sikes on Behalf of the Mothers
Against Drunk Driving
My fifteen-year-old daughter was killed in April 1992 by a drunk
driver. My experience with the justice system taught me, first hand,
how badly skewed the scales of that justice, system have become. No
amount of victim's rights would have eased the pain and grief I felt
following Alisa's death. I don't expect that. But I also don't expect
to be treated as a non-entity in the most wrenching experience of my
life. And I do expect the opportunity to present my dear Alisa as a
beautiful, vivacious girl whose life was stolen by a seventeen year old
boy who pled guilty to vehicular manslaughter. I was denied that
opportunity because a clever defense attorney was able to manipulate
his guilty client's rights, so that his sentence was determined without
our presence.
I spent 30 years in the Navy defending the rights guaranteed by our
Constitution. I am not seeking to reduce the rights of the accused. I
am only seeking balance. First of all victims deserve to be kept
informed during the most painful, intense experience of their lives.
But the legal system has no incentive to deal with victims and their
pain. Victims are at the mercy of good intentions of prosecutors,
unless they have rights of their own. Secondly, once guilt has been
determined, defense attorneys paint their clients in as favorable light
as possible. They put a real person in front of judge or jury, in hopes
of gaining some leniency. My Alisa was a real person too, but she was
not there when the sentence was passed. And I was denied the
opportunity to represent her.
I have met and helped many victims since Alisa was killed. I have
seen their pain increased by poor treatment by our justice system. It
is absolutely clear that victims need constitutional rights to protect
them in this system Before Maryland had a constitutional amendment, our
state statute guaranteeing victim's rights was easily ignored both by
lawyers and judges. While abuses still occur our scales are now more
balanced here. But I can't be content to wait for each state to act
individually. I have family living in Arizona, Connecticut, Alabama,
and California. And, in today's mobile society, they all travel
regularly between states. Without federal constitutional protection I
fear the same shoddy treatment I faced following Alisa's death should
anything happen in the future.
I believe the founding fathers allowed for our constitution to be
amended when rights became unbalanced. And I believe this amendment
will go far towards balancing our woefully unbalanced scales of
justice. Please support this amendment for me and for Alisa.
Prepared Statement of Virginia E. Sloan on Behalf of the Citizens
for the Constitution
Great and Extraordinary Occasions: Developing Guidelines for
Constitutional Change
introduction
When the Constitution's framers met in Philadelphia, they decided
to steer a middle course between establishing a constitution that was
so fluid as to provide no protection against the vicissitudes of
ordinary politics, and one that was so rigid as to provide no mechanism
for orderly change. An important part of the compromise they fashioned
was embodied in Article V.
The old Articles of Confederation could not be amended without the
consent of every state--a system that was widely recognized as
impractical, producing stalemate and division. Accordingly, Article V
provided for somewhat greater flexibility: The new Constitution could
be amended by a proposal adopted by two thirds of both Houses of
Congress or by a convention called by two thirds of the states,
followed in each case by approval of three fourths of the states.\1\
---------------------------------------------------------------------------
\1\ Article V provides:
The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of
two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that
no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect
the first and fourth Clauses in the Ninth Section of the
first Article; and that no State, without its Consent,
shall be deprived of its equal Suffrage in the Senate.
In the ratification debate that ensued, Article V played an
important role. The new, more flexible amendment process served to
reassure potential opponents who favored adding a bill of rights, or
who worried more generally that the document might ultimately prove
deficient in unanticipated ways. It also reassured the Constitution's
supporters by making it more unlikely that a second constitutional
convention would be called to undo the work of the first.
Precisely because the legal constraints on the amendment process
had been loosened somewhat from those contained in the old Articles,
many of the framers also believed that the legal constraints should be
supplemented by self-restraint. Although the new system made it legally
possible to change our foundational document even when there was
opposition, the framers believed that even dominant majorities should
hesitate before using this power. As James Madison, a principal author
of both the Constitution and the Bill of Rights, argued in Federalist
49, the constitutional road to amendment should be ``marked out and
kept open,'' but should be used only ``for certain great and
extraordinary occasions.''
For the first two centuries of our history, this reliance on self-
restraint has functioned well. Although over 11,000 proposed
constitutional amendments have been introduced in Congress, only
thirty-three of these have received the requisite congressional
supermajorities, and only twenty-seven have been ratified by the
states. The most significant of these amendments, accounting for half
of the total, were proposed during two extraordinary periods in
American history--the period of the original framing, which produced
the Bill of Rights,\2\ and the Civil War period, which produced the
Reconstruction amendments. Aside from these amendments, the
Constitution has been changed only thirteen times.
---------------------------------------------------------------------------
\2\ The Twenty-seventh Amendment, relating to changes in
congressional compensation, was part of the original package of
amendments proposed by the first Congress, but was not ratified by the
states until 1992.
---------------------------------------------------------------------------
Most of these thirteen amendments either expanded the franchise or
addressed issues relating to presidential tenure. Only four amendments
have ever overturned decisions of the Supreme Court, and the only
amendments not failing within these categories--the Prohibition
Amendments--also provide the only example of the repeal of a previously
enacted amendment.\3\
---------------------------------------------------------------------------
\3\ A list and brief description of all twenty-seven ratified
amendments, grouped according to category, is attached as an appendix.
---------------------------------------------------------------------------
In recent years, however, there have been troubling indications
that this system of self-restraint may be breaking down. To be sure, no
newly-proposed amendment has been adopted since 1971. Nonetheless,
there has been a sudden rash of proposed amendments that have moved
further along in the process than ever before and that, if enacted,
would revise fundamental principles of governance such as free speech
and religious liberty, the criminal justice protections contained in
the Bill of Rights, and the methods by which Congress exercises the
power of the purse. Within the last few years, six proposed
constitutional amendments--concerning a balanced budget, term limits,
flag desecration, campaign finance, religious freedom, and procedures
for imposing new taxes--have reached the floor of the Senate, the
House, or both bodies. Two of these--the balanced budget amendment and
the flag desecration amendment--passed the House, and a version of the
balanced budget amendment twice failed to win Senate passage by a
single vote. Still other sweeping new amendments--including a
``victim's rights'' amendment, an amendment redefining United States
citizenship, and even an amendment to ease the requirements for future
amendments--have considerable political support.
There are many explanations for this new interest in amending the
Constitution. Some Republicans, in control of both Houses of Congress
for the first time in several generations, want to seize the
opportunity to implement changes that many of them have long favored.
Some Democrats, frustrated by a political system they view as
fundamentally corrupted by large campaign contributions, want to
revisit the relationship between money and speech. Some members of both
parties have blamed what they consider to be the Supreme Court's
judicial activism for effectively revising the Constitution, thereby
necessitating resort to the amendment process to restore the document's
original meaning.\4\ There may well be merit to each of these views.
Unfortunately, however, very little attention has been devoted to the
wisdom of engaging in constitutional change, even to advance popular
and legitimate policy outcomes. We believe that the plethora of
proposed amendments strongly suggests that the principle of self-
restraint that has marked our amending practices for the past two
centuries may be in danger of being forgotten.
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\4\ Issues concerning the appropriate techniques of constitutional
interpretation are beyond the scope of this project. Some, but by no
means all, of our members believe that, in some cases, the Supreme
Court has inappropriately ``amended'' the Constitution through a
strained reading of its text. We believe that it is entirely
appropriate for Congress to respond to what it perceives as erroneous
constitutional interpretation by passing corrective amendments.
However, we also believe that, even in the face of perceived judicial
overreaching, Congress should not compound the problem by responding
with poorly drafted or ill-considered amendments.
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There are several good reasons for attempting to reaffirm this
self-restraint.
Restraint is important because constitutional amendments
bind not only our own generation, but future generations as
well. Constitutional amendments may entrench policies or
practices that seem wise now, but that end up not working in
practice or that reflect values that become no longer widely
shared. Contested policy questions should generally be subject
to reexamination in light of the experience and knowledge
available to future generations. Enshrining a particular answer
to these questions in the Constitution obstructs that
opportunity. Our experience with three previously proposed
amendments, one that was adopted and later repealed, and two
others that moved far along in the process, but were not
adopted, serve to illustrate these points:
First, when the Prohibition Amendment was adopted in 1919, many
Americans thought that it embodied sensible social policy. Yet within a
short time, there was broad agreement that the experiment had failed,
in part because enforcing it proved enormously expensive in dollars and
social cost. Had prohibition advocates been content to implement their
policy by legislation, those laws could have been readily modified or
repealed when the problems became apparent. Instead, the country had to
undergo the arduous and time-consuming process of amending the
Constitution to undo the first change. This is an experience we should
be eager not to repeat.
The second example might have had far more serious consequences. On
the eve of the Civil War, both Houses of Congress adopted an amendment
that would have guaranteed the property interest of slave-holders in
their slaves and would have forever prohibited repeal of the amendment.
Fortunately, the proposed amendment was overtaken by events and never
ratified by the states. Had it become law, the result would have been a
constitutional calamity.
Finally, in our own time, there is the failed effort to add to the
Constitution an equal rights amendment, prohibiting denial or
abridgment of rights on account of sex. Within three months of
congressional passage in 1972, twenty states had ratified the
amendment. Thereafter, the process slowed, and even though Congress
extended the deadline, supporters ultimately fell short of the three-
fourths of the states necessary for ratification. The struggle for and
against ratification produced much dissension and consumed a great deal
of political energy. Yet today, even some of the amendment's former
supporters would concede that the amendment may not have been
necessary. Moreover, the amendment would have added to the Constitution
a controversial and broadly worded provision of uncertain and contested
meaning, with the Supreme Court given the unenviable job of providing
it content. Instead of years of judicial wrangling concerning its
application, we have seen Congress pass ordinary legislation, and the
Court engage in the familiar process of explicating existing
constitutional and statutory text, to achieve many of the goals of the
amendment's proponents. This process has been more sensitive and
flexible, while also less contentious and divisive, than what we could
have expected had the amendment become law.
Restraint is also important in order to preserve the
Constitution as a symbol of our nation's democratic system and
of its cherished diversity. In a pluralistic democracy, where
people have many different religious faiths and divergent
political views, maintaining this symbol is of central
importance. The Constitution's unifying force would be
destroyed if it came to be seen as embodying the views of any
temporarily dominant group. It would be a cardinal mistake to
amend the Constitution so as to effectively ``read out'' of our
foundational charter any segment of our society.
The Constitution's symbolic significance might also be
damaged if it were changed to add the detailed specificity of
an ordinary statute in order to control political outcomes. The
Constitution's brevity and generality serve to differentiate it
from ordinary law and, so, allow groups that disagree about
what ordinary law should be to coalesce around the broad
principles it embodies.
Finally, restraint is necessary because proposed amendments
to the Constitution often put on the table fundamental issues
about our character as a nation, thereby bringing to the fore
the most divisive questions on the political agenda. Two
centuries ago, James Madison warned of the ``danger of
disturbing the public tranquility by interesting too strongly
the public passions'' through proposed constitutional change.
It is not only wrong to trivialize the Constitution by
cluttering it with measures embodying no more than ordinary
policy; it is also a mistake to reopen basic questions of
governance lightly. Occasional debates about fundamental
matters can be cleansing and edifying, but no country can
afford to argue about these issues continuously. Our ability to
function as a pluralistic democracy depends upon putting
ultimate issues to one side for much of the time, so as to
focus on the quotidian questions of ordinary politics. As
Madison argued shortly after the Constitution's drafting,
changes in basic constitutional structure are ``experiments * *
* of too ticklish a nature to be unnecessarily multiplied.''
None of this is to suggest that the Constitution should never be
amended or that its basic structural outlines are above criticism.
There have been times in our history when arguments for restraint have
been counterbalanced by the compelling need for reform. Some
individuals may believe that this is such a time, at least with regard
to particular issues, and if they do, there is nothing illegitimate
about urging constitutional change.
Some constitutional amendments are designed to remedy perceived
judicial misinterpretations of the Constitution. Some earlier
constitutional amendments--for example, the Eleventh Amendment
establishing state sovereign immunity and the Sixteenth Amendment
authorizing an income tax--fall into this category. There is nothing
per se illegitimate about amendments of this sort, although here, as
elsewhere, their supporters need to think carefully about the precise
legal effect of the amendment in question and about how the amendment
will interact with other, well-established principles of constitutional
law.
More generally, advocates of amendments of any kind should focus
not only on the desirability of the proposed change, but also on the
costs imposed by attempts to achieve that change through the amendment
process as contrasted with other alternatives. In the Guidelines that
follow, we propose some general questions that, we hope, participants
in debates about constitutional change will ask themselves. We do not
pretend that the answers to these questions will always be dispositive
or that the Guidelines can be mechanically applied. If the
circumstances are extraordinary enough, all of these warnings might be
overcome. Nor do we imagine that the Guidelines alone are capable of
resolving all disputes about currently pending proposals for
constitutional change. We ourselves are divided about some of these
proposed amendments, and no general Guidelines can determine the
ultimate trade-offs among the benefits and costs of change in
individual cases.\5\
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\5\ As an organization, we generally take no position on the merits
of proposed amendments. We have made a single exception in the case of
an amendment that would, itself, make the amendment process less
arduous. This proposal runs afoul of our core commitment to restraint,
and we strongly oppose it.
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Instead, our hope is that the Guidelines will draw attention to
some aspects of the amending process that have been ignored too
frequently, provoke discussion of when resort to the amending process
is appropriate, and suggest an approach that will ensure that all
relevant concerns are fully debated. At the very moment when this
country was about to embark on the violent overthrow of a prior, unjust
constitutional order, even Thomas Jefferson, more friendly to
constitutional amendments than many of the founders, warned that
``governments long established should not be changed for light and
transient causes.'' In the calmer times in which we live, there is all
the more reason to insist on something more before overturning a
constitutional order that has functioned effectively for the past two
centuries. The Guidelines that follow attempt to raise questions about
whether such causes exist and how we should respond to them.
guidelines for constitutional amendments
1. Does the proposed amendment address matters that are of
more than immediate concern and that are likely to be
recognized as of abiding importance by subsequent generations?
2. Does the proposed amendment make our system more
politically responsive or protect individual rights?
3. Are there significant practical or legal obstacles to the
achievement of the objectives of the proposed amendment by
other means?
4. Is the proposed amendment consistent with related
constitutional doctrine that the amendment leaves intact?
5. Does the proposed amendment embody enforceable, and not
purely aspirational, standards?
6. Have proponents of the proposed amendment attempted to
think through and articulate the consequences of their
proposal, including the ways in which the amendment would
interact with other constitutional provisions and principles?
7. Has there been full and fair debate on the merits of the
proposed amendment?
8. Has Congress provided for a nonextendable deadline for
ratification by the states so as to ensure that there is a
contemporaneous consensus by Congress and the states that the
proposed amendment is desirable?
Commentary on the Guidelines
The following commentary explains each of the Guidelines and
illustrates how each might be applied in the context of some previous
and currently pending proposals for constitutional amendment. It is
significant that the Guidelines are written in the form of questions to
think about, rather than commands to be obeyed. The Guidelines alone
cannot determine whether any amendments should be adopted or rejected.
Instead, most of the Guidelines are designed to raise concerns that
those considering amendments might want to weigh against the perceived
desirability of the changes embodied in the amendments. The last three
Guidelines--concerning the need to articulate consequences, the
fairness of the procedure, and the requirement of a nonextendable
deadline--are in a somewhat different category. Although each of the
other concerns might be overcome if one were sufficiently committed to
the merits of a proposed amendment, it is hard to imagine the
circumstances under which adopting an amendment would be appropriate
without an articulation of its consequences, a full and fair debate,
and measures designed to assure that it reflects a contemporary
consensus.
1. Does the proposed amendment address matters that are of more than
immediate concern and that are likely to be recognized as of
abiding importance by subsequent generations?
James Madison, one of the principal architects of Article V of the
Constitution, which contains the procedures for amendment, cautioned
against making the Constitution ``too mutable'' by making
constitutional amendment too easy. Hence his insistence that any
constitutional amendment command not only majority, but supermajority,
support. Implicit in Madison's caution is the view that stability is a
key virtue of our Constitution and that excessive ``mutability'' would
undercut one of the main reasons for having a Constitution in the first
place. As Chief Justice John Marshall observed in McCulloch v.
Maryland, the Constitution was ``intended to endure for ages to come.''
Similarly, in his prophetic dissent in Lochner v. New York, Justice
Oliver Wendell Holmes cautioned that the Constitution ought not be read
to ``embody a particular economic theory'' that might be fashionable in
a particular generation. It is crucial to our constitutional enterprise
to preserve public confidence--over succeeding generations--in the
stability of the basic constitutional structure.
Thus, the Constitution should not be amended solely on the basis of
short-term political considerations. Of course, no one can be certain
whether future generations will come to see a policy as merely
evanescent or as truly fundamental. Still, legislators have an
obligation to do their best to avoid amendments that are no more than
part of a momentary political bargain, likely to become obsolete as the
social and political premises underlying their passage wither or
collapse.
To be enduring, constitutional amendments should usually be cast,
like the Constitution itself, in general terms. Both powers and rights
are set forth in our basic document in broad-and open-ended language.
To quote Marshall in McCulloch again, an enduring Constitution
``requires that only its great outlines should be marked,'' with its
``minor ingredients'' determined later through judicial interpretation
in each succeeding generation. Of course, sometimes specificity will be
necessary, as in changing the date of the presidential inauguration.
But in general, the nature of our Constitution is violated if
amendments are too specific in the sense that they reflect only the
immediate concerns of one generation, or if they set forth specifics
more appropriate in an implementing statute.
To illustrate this point, contrast the experience of the state
constitutions with our sparse tradition of federal constitutional
amendments. While the federal Constitution has been amended only 27
times in over 200 years, the fifty state constitutions have had a total
of more than 6000 amendments added to them.\1\ Many are the products of
interest-group politics characteristic of ordinary legislation. State
constitutions thus suffer from what Marshall called ``the prolixity of
a legal code''--a vice he praised the federal Constitution for
avoiding.\2\
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\1\ The Council of State Governments, The Book of the States, 1998-
99 Ed.
\2\ It may be that differences between the state and federal
governments justify more detailed constitutions on the state level.
Detailed constitutional structures that might work well at the state
level might work poorly at the federal level.
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Even when amendments are not overly detailed, they may be
inappropriate because they focus on matters of only short-term concern.
For example, consider various proposals that seek to carve specific new
exceptions out of the broad concept of freedom of speech set forth in
the First Amendment. The proposed flag-desecration amendment would
rewrite the Constitution to say that while the government generally may
not prohibit speech based on dislike of its message, it may do so in
the case of flag desecraters. The proposed campaign finance amendment
would alter the First Amendment to say that the quantity of speech may
never be diminished--except in modem election campaigns.
Each of these amendments is a response to contemporary political
pressures. Future generations, like Americans today, can easily
perceive the broad purposes and enduring legacies underlying the
majestic generalities of our original guarantee of freedom of speech:
the quest for truth, for self-government, and for individual liberty.
But future generations may not understand, let alone revere, the
motivations behind a flag-desecration or campaign finance amendment.
Such particularized amendments may instead be perceived as the
political victory of one faction in a particular historical moment.
Flag-desecration is not an immortal form of political protest; we
cannot know whether political dissidents will have the slightest
interest in this gesture generations from now. Similarly, the campaign
tactics used by todays candidates might change in ways that we cannot
now imagine as we enter an age of instantaneous global communication
over new electronic and digital media. Thus, there may be legitimate
questions about the enduring nature of the perceived problem, as well
as about the proposed solution.
In general, we should not embed in the Constitution one
generation's highly particular response to problems that a later
generation might view as ephemeral. To add such transient amendments to
the Constitution trivializes and undermines popular respect for a
document that was intended to endure for the ages.
2. Does the proposed amendment make our system more politically
responsive or protect individual rights?
Of the twenty-seven amendments to the Constitution, seventeen
either protect the rights of vulnerable individuals or extend the
franchise to new groups. With the notable exception of the failed
Prohibition Amendment, none of the amendments simply entrenches a
substantive policy favored by a current majority.
There are good reasons for this overwhelming emphasis either on
individual rights or on democratic participation. In a constitutional
democracy, most policy questions should be decided by elected
officials, responsible to the people who will be affected by the
policies in question. It follows that the Constitution's main thrust
should be to ensure that our political system is more, rather than
less, democratic. Many amendments serve this function. For example, the
Fifteenth, Seventeenth, Nineteenth, Twenty-third, Twenty-fourth, and
Twenty-sixth Amendments all broaden the franchise.
Of course, the Constitution is also designed to protect vulnerable
individuals from majority domination, whether temporary or permanent.
Hence, many other Amendments guarantee minority rights. For example,
the First Amendment protects the rights of religious and political
minorities; the Fifth Amendment protects the rights of property holders
whose property might be seized by legislative majorities without
compensation or due process; the Fourth, Fifth, Sixth, and Eighth
Amendments all protect the rights of criminal defendants, who were
deemed especially vulnerable to majority hatred and overreaching; and
the Thirteenth, Fourteenth and Fifteenth Amendments were all motivated
by the desire to protect former slaves.
There is an obvious tension between the twin goals of majority rule
and protection for individuals, and this Guideline does not seek to
resolve it. On some occasions, it is important to provide
constitutional protection for individuals from government overreaching;
yet on others, it is equally important to allow majorities to have
their way. Although the protection of individual rights is a central
aim of the Constitution, it is not the only aim, and it is emphatically
not true that every group that comprises less than a majority is
entitled to constitutional protection because of its minority status.
One need not finally determine when majority rule should trump
minority rights to see the problem with amendments that do no more than
entrench majority preferences against future change. Amendments of this
sort can be justified by neither majoritarianism nor a commitment to
individual rights. On the one hand, they restrict the scope of
democratic participation by future generations. On the other, they
entrench the will of a current majority as against minority dissenters.
Amendments of this sort should not be confused with power-granting
amendments. To make possible ordinary legislation, favored by a current
majority, it is sometimes necessary to enact amendments that eliminate
constitutional barriers to its passage. For example, the Sixteenth
Amendment eliminated a constitutional obstacle to the enactment of a
federal income tax, and the Fourteenth Amendment eliminated federalism
objections to civil rights legislation. Such amendments may be
legitimate when they widen the scope of democratic participation,
although, as noted above, they may also raise difficult issues
regarding the appropriate tradeoff between majority control and
minority rights.
In contrast, amendments that merely entrench majority social or
economic preferences against future change make the system less rather
than more democratic. They narrow the space for future democratic
deliberation and sometimes trammel the rights of vulnerable
individuals. It is a perversion of the Constitution's great purposes to
use the amendment process as a substitute for ordinary legislative
processes that are fully available to groups proposing popular changes
and equally available to future majorities that may take a different
view.
This Guideline raises important questions concerning a number of
proposed constitutional amendments. Consider first the ``victims'
rights'' amendment, which would grant a number of rights in the trial
process to the victims of crime. Congress should ask whether crime
victims are a ``discrete and insular minority'' requiring
constitutional protection against overreaching majorities, or whether
they can be protected through ordinary political means. Congress should
also ask whether it is appropriate to create rights for them that are
virtually immune from future revision.
The balanced budget amendment poses a close question under this
Guideline. On the one hand, the amendment can be defended as democracy-
enhancing by protecting the interests of future generations, or by
counterbalancing the power of narrow interest groups that have
succeeded in gaining a disproportionate share of the public fisc for
themselves. On the other hand, these gains are achieved at the cost of
dramatically shrinking the area of democratic participation.
Discussions of economic theory and the size of the federal budget
deficit are central to democratic politics. Americans' views concerning
the propriety of deficit financing have changed dramatically over time,
and there is no reason to think that this evolutionary process has come
to a sudden end. Locking in a currently popular position against future
change, including, perhaps, turning the problem of remedies over to
unelected federal judges, would significantly alter the democratic
thrust of the Constitution and obstruct the ability of future
generations to make their own economic judgments.
Finally, consider the flag desecration amendment. In form, the
amendment is power-granting: it opens previously closed space for
democratic decision-making without requiring any particular result. In
general, such power-granting amendments pose no problems under this
Guideline. Yet the flag desecration amendment grants power at the
behest of an already dominant majority and at the expense of an
extremely unpopular and utterly powerless minority. True, current
constitutional doctrine prevents the majority from working its will
with regard to one particular matter--the criminalization of flag
desecration. But the majority on this issue has considerable power and
is hardly disabled from expressing its views in a wide variety of other
fora. Granting to the majority the power to prohibit an overwhelmingly
unpopular form of expression may serve to entrench currently popular
views, at the expense of an unpopular minority, without providing any
real gains in terms of democratic participation.
3. Are there significant practical or legal obstacles to the
achievement of the objectives of the proposed amendment by
other means?
The force of the Constitution depends on our ability to see it as
something that stands above and outside of day-to-day politics. The
very idea of a Constitution turns on the separation of the legal and
the political realms. The Constitution sets up the framework of
government. It also sets forth fundamental political ideals--equality,
representation, and individual liberties--that limit the actions of a
short-term majority. This is our higher law. All the rest is left to
day-to-day politics. Those who lose in the short run of ordinary
politics obey the winners out of respect for the long-run rules and
boundaries set forth in the Constitution. Without such respect for the
constitutional framework, the peaceful operation of ordinary politics
would degenerate into fractious war.
Accordingly, the Constitution should not be amended to solve
problems that can be addressed through other means, including federal
or state legislation or state constitutional amendments. An amendment
that is perceived as a surrogate for ordinary legislation or executive
action breaks down the boundary between law and politics that is so
important to maintaining broad respect for the Constitution. The more
the Constitution is filled with specific directives, the more it
resembles, ordinary legislation. And the more the Constitution looks
like ordinary legislation, the less it looks like a fundamental charter
of government, and the less people will respect it.
A second reason for forgoing constitutional amendments when their
objectives can be otherwise achieved is the greater flexibility that
political solutions have to respond to changing circumstances over
time.\3\ Amendments that embody a specific and perhaps controversial
social or economic policy allow one generation to tie the hands of
another, entrenching approaches that ought to be more easily revisable
by future generations in light of their own circumstances. Such
amendments convert the Constitution from a framework for governing into
a statement of contemporary public policy.
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\3\ This reason also relates to a separate set of concerns outlined
in Guideline Two.
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For these reasons, advocates of a constitutional amendment should
consider whether they have exhausted every other means of political
redress for a problem before they seek to solve it by amending the
Constitution. If other action under our existing constitutional
framework is capable of achieving an objective, then writing that
objective into the Constitution is unnecessary and therefore will
clutter that basic document, reducing popular respect. One might wonder
why anyone would resort to the difficult and time-consuming effort to
secure a constitutional amendment if the same objectives could be
accomplished by ordinary political means. Unfortunately, some now
believe that a legislator is not serious about a proposal unless he or
she is willing to amend the Constitution. Experience has also
demonstrated that the amendment process (and even the mere sponsorship
of an amendment, if the amendments sponsor suspects that actual passage
is unlikely) can be a tempting way to make symbolic or political points
or to prevent future change in policy even when nonconstitutional means
are available to achieve current public policy objectives.
For example, our experience with the failed equal rights amendment
suggests the virtues of resort to ordinary political means to achieve
desired, change. Today, many of the objectives of the amendment's
proponents have been achieved without resort to the divisive and
unnecessary amendment process.
The proposed victims' rights amendment raises troubling questions
under this Guideline. Witnesses testifying in Congress on behalf of the
federal amendment point to the success of state amendments as reason to
enact a federal counterpart. But the passage of the state amendments
arguably cuts just the other way: for the most part, states are capable
of changing their own law of criminal procedure in order to accommodate
crime victims, without the necessity of federal constitutional
intervention. While state amendments cannot affect victims' rights in
federal courts, Congress has considerable power to furnish such
protections through ordinary legislation. Indeed, it did so in March
1997 in Public Law 105-6 (codified as 18 U.S.C. Sec. 3510), which
allowed the victims of the Oklahoma City bombing to attend trial
proceedings. If this generation's political process is capable of
solving a problem one way, then future generations' political processes
should be free to adjust that solution over time without the rigid
constraints of a constitutional amendment.
This Guideline does not caution against resort to constitutional
change when there are significant legal or practical obstacles to
ordinary legislation. Consider in this regard the proposed flag
desecration amendment. After the Supreme Court invalidated a state
statute prohibiting flag desecration, Congress responded by attempting
to draft a federal statute that prohibited desecration without
violating the Court's interpretation of the First Amendment. This
effort to exhaust nonconstitutional means is precisely the course of
conduct this Guideline recommends. Now that the Supreme Court has also
invalidated the federal statute, use of the amendment process in this
context would fully comport with this Guideline unless a different
statute could be devised that would pass constitutional muster.
Closer questions arise when there are practical, rather than legal,
obstacles to ordinary legislation. The balanced budget amendment
provides an interesting example. On the one hand, experience prior to
1997 suggested that there might have been insurmountable practical
difficulties in dealing with budgetary problems through ordinary
legislation, that interest group politics would inevitably stymie
efforts to cut expenditures through the ordinary budget process, and
that perhaps interest group politics could be transcended only by use
of a general, constitutional standard. To the extent that this was
true, utilization of the constitutional amendment process might well
have been justified under this Guideline.
On the other hand, a constitutional amendment is a far cruder
instrument than is congressional or presidential action to address the
issue of federal spending, for it lacks the flexibility to permit
tailoring fiscal policy to the nation's changing economic needs. There
are no formal legal barriers to solving the problem through existing
legislative and executive means, and recent success in achieving
budgetary balance suggests that it is sometimes a mistake to
overestimate the practical obstacles to change. This example counsels
caution before resort to the amendment process in any context.
In any event, advocates of constitutional change should be certain
that they have exhausted other means before resorting to the amendment
process. Our history counsels that the federal Constitution should
continue to be altered sparingly and only as a last resort. Only
amendments that are absolutely necessary should be proposed and
enacted. And amendments are not necessary when there are no legal or
practical barriers to pursuing solutions to problems through existing
political means.
4. Is the proposed amendment consistent with related constitutional
doctrine that the amendment leaves intact?
Because the Constitution gains much of its force from its
cohesiveness as a whole, it is vital to ask whether an amendment would
be consistent with constitutional doctrine that it would leave
untouched. Does the amendment create an anomaly in the law? Such an
anomaly is especially likely to occur when the proposed amendment is
offered to overrule a Supreme Court decision, although the danger
exists in other circumstances as well.
To be sure, every amendment changes constitutional doctrine. That
is, after all, the function amendments serve. A difficulty occurs only
when the change has the unintended consequence of failing to mesh with
aspects of constitutional doctrine that remain unchanged. This problem
does not arise when whole areas of constitutional law are reformulated.
For example, the Sixteenth Amendment, permitting Congress to enact an
income tax, was necessitated by the Court's ruling in Pollock v.
Farmers Loan & Trust Co. that a specific limitation on the taxing power
in the Constitution precluded a tax on income. That provision was
grounded in our history as colonies and in concerns among slave-holding
states that the federal government would impose a ``direct tax'' on
slaves. With passage of the Thirteenth Amendment, ending slavery, the
tax limitation itself became anomalous and a constitutional amendment
was necessary to remove the anomaly. The Sixteenth Amendment reflected
a repudiation of the original decision of the framers in light of
changed circumstances, which is precisely the kind of broad change in
policy for which the amendment process was designed.
It does not follow, however, that an amendment must always overrule
an entire body of law in order to comport with this Guideline. Although
the Dred Scott decision was embedded in the law of property, Congress
did not revisit all of property law when it enacted the Thirteenth
Amendment, and its failure to do so in no way damaged the coherence of
constitutional doctrine.
In contrast, some proposed amendments make changes that are
difficult to reconcile with underlying legal doctrine that the
amendments leave undisturbed. This problem arises most often when
framers of amendments focus narrowly on specific outcomes, without also
thinking more broadly about general legal principles.
The proposed flag desecration and campaign finance amendments
illustrate this difficulty. The Supreme Court's flag desecration
decisions, although commanding only 5-4 majorities, were consistent
with several lines of the Court's well-established First Amendment
decisions. In those cases, the Court had recognized both that some
forms of conduct are primarily symbolic speech, and hence are entitled
to full First Amendment protection, and that laws designed to suppress
a particular point of view are almost never permissible, especially
when the speech is a form of protest against the very government that
is seeking to prohibit the activity.
If an amendment were enacted to permit the government to
criminalize flag desecration, it would create the first exception to
the First Amendment by specifically allowing government to censor only
one type of message--one that expressed an anti-government point of
view.\4\ This result is difficult to reconcile with other principles
that the amendment's drafters would apparently leave intact. One
wonders, for example, whether the amendment would permit legislation
outlawing only those flag burnings intended as a protest against
incumbent office holders.
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\4\ It might also create exceptions to other First Amendment
doctrines, such as the prohibitions on prior restraint, overbreadth and
vagueness. Whether it would in fact have this effect is far from clear,
however, because there has been remarkably little substantive
discussion of the ramifications of the amendment. This problem is
addressed more fully in the commentary to Guideline Six.
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Similarly, the campaign finance amendment presents at least two
sets of anomalies in First Amendment jurisprudence. The amendment would
overrule that portion of Buckley v. Valeo that struck down a limitation
on the amount of money that candidates for elected office can spend,
either from lawfully raised contributions or from their own personal
funds. The theory of the decision is that money is the means by which
candidates amplify their messages to the electorate and that placing
limits on spending is equivalent to a limit on speech, which violates
the First Amendment, particularly in the context of an election.
The proposed amendment would allow Congress and the states to set
limits on the amount a candidate could spend on elections, but would
not alter the law regarding governmental attempts to control the
amounts spent on other types of speech. If the amendment were narrowly
construed to apply only to express advocacy for or against a candidate,
it would have the effect of shifting money to issue advocacy, which is
often not-so-subtly designed to achieve the same ends--election of a
particular candidate. For example, the advertisements against cuts in
Medicare and social security in the 1996 campaign were plainly efforts
to aid Democratic candidates, and those against certain abortion
procedures were intended to aid Republican candidates. On the other
hand, if the amendment were broadly construed, it would have the
anomalous effect of placing a greater limit on speech in the context of
elections than in the context of commercial products or cultural
matters, a result that is difficult to square with the core notion of
what the First Amendment is intended to protect.
One of the underlying reasons for the result in Buckley is the fear
that statutory spending limits would be set by incumbents, who would
make these limits so low that challengers would, as a practical matter,
be unable to succeed. But the amendment would allow legislatures to set
``reasonable'' spending limits. The Court would therefore find itself
in the anomalous and unenviable position of deciding whether the
amounts chosen by incumbents, or perhaps by state ballot initiatives,
met the new constitutional standard, instead of doing what it does in
all other First Amendment cases: forbidding the government from setting
any limits on the amount of speech, whether reasonable or not.
5. Does the proposed amendment embody enforceable, and not purely
aspirational, standards?
The United States Constitution is not a theoretical enterprise. It
is a legal document that spells out a coherent approach to government
power and processes while also guaranteeing our most fundamental
rights. More than two centuries of experience underscore the wisdom of
continuing that approach. The addition of purely aspirational
statements, designed solely for symbolic effect, would lead interest
groups to attempt to write their own special concerns into the
Constitution.
It follows that advocates of amendments should think carefully
about how the amendments will be enforced. In his seminal Common Sense,
Thomas Paine expressed the revolutionary notion that was the founding
wisdom of our nation: in America, ``the law is King.'' Everyone,
regardless of social station or political rank, must follow the law. A
provision susceptible of being ignored because no one can require its
observance permits the kind of executive or legislative lawlessness
that our founders wished to prevent. A provision that may be willfully
ignored when those charged with observing it find the result
inconvenient or undesirable undermines the rule of law, the governments
own legitimacy, and the Constitution's special stature in our society.
The proposals for a balanced budget amendment illustrate the need
to think carefully about means of enforcement. The amendment itself
does not specifically set forth the means by which it would be
enforced. A Congress that has had difficulty reaching a balanced budget
without a constitutional amendment might have similar difficulties if
it was not subject to a judicial or presidential check. Without such a
check, a balanced budget amendment might be nothing more than an
aspirational standard.
Of course, most existing constitutional amendments are also silent
regarding the means of enforcement. Since Marbury v. Madison, however,
there has been a presumption that judicial enforcement will generally
be available. If its proponents intend and the courts find the balanced
budget amendment to be similarly enforceable, it raises no issues under
this Guideline. But it is not clear that the proponents so intend.
Granting to courts the right to determine when outlays exceed receipts
and to devise the appropriate remedy for such a constitutional
violation would arguably constitute an unprecedented expansion of
judicial power, If proponents of the amendment do not intend these
consequences, there is a risk that the amendment will be purely
aspirational or that it will be enforced in ways they might find
objectionable.
Questions also arise about other means of enforcement. Could the
President refuse to spend money in order to remedy a looming
unconstitutional deficit? The practice, known as impoundment, is
generally thought to be unavailable to the President unless
specifically authorized by Congress. However, an official from the
Department of Justice testified in hearings before the Senate Judiciary
Committee that, if the amendment were enacted, the President would be
duty-bound to impound money or take other appropriate action to prevent
an unbalanced budget.\5\ Moreover, in such event, and absent some
controlling statute, the choice of which programs to cut and in which
amounts would be entirely up to the President.
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\5\ Hearing before the Senate Judiciary Committee on S.J. Res. 1,
104th Cong., 1st Sess., Jan. 5, 1995 (testimony of Assistant Attorney
General Walter Dellinger).
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6. Have proponents of the proposed amendment attempted to think through
and articulate the consequences of their proposal, including
the ways in which the amendment would interact with other
constitutional provisions and principles?
When the original Constitution was drafted, the delegates to the
Constitutional Convention regarded the new document as a unified
package. Much energy was directed to considering how the various parts
of the Constitution would interact with each other and to the political
philosophy expressed by the document as a whole. The amendment process
is necessarily much more ad hoc. Consequently, proponents of new
amendments need to be especially careful to think through the legal
ramifications of their proposals, considering, for example, how their
proposals might shift the balance of shared and separated powers
between the branches of the federal government, or affect the
distribution of responsibilities between the federal and state
governments. They should also explore how their proposals mesh with the
Constitution's fundamental commitment to popular sovereignty and to the
guarantees of liberty, justice and equality.
Consider an example: a proposed textual limitation on some forms of
free speech might provide a rationale for limiting other speech. The
campaign finance proposal would authorize Congress and the states to
place limits on political campaign spending. While purportedly aimed at
limiting the influence of wealthy donors, the amendment might establish
as constitutional law that the government could ration core political
speech to serve a variety of legitimate government interests. If the
amendment were broadly construed, not only could a legislature then act
to equalize participation in political debate by limiting spending, but
it could also limit spending relevant to a particular issue in order to
secure greater equality in the discussion of that issue.
Moreover, even though its sponsors do not intend to impose
financial limits on the press, the proposed amendment itself contains
no such restriction. Certainly the value of a newspaper endorsement, at
least equivalent to the cost of a similarly-sized and placed
advertisement, could easily violate an expenditures limit. Traditional
jurisprudence treats freedom of the press no more expansively than
freedom of speech. Rather than maintain the uninhibited, robust and
wide-open dialogue that the Constitution presently guarantees, the
proposed amendment arguably permits the rationing of speech in amounts
that satisfy the most frequent targets of campaign criticism--current
officeholders, who would have a self-interest in limiting the speech of
those who disagree with them. It is also not unreasonable to anticipate
that officeholders would attempt to apply such restrictions to a wide
range of press commentary, or to other areas where wealth or access
enhance the speech opportunities of their political opponents--on the
theory of equalizing speech opportunities. The result would be yet
another advantage for incumbents, who already enjoy advantages due to
higher name recognition, greater free media opportunities as
officeholders, and a well-developed fundraising network.\6\
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\6\ The difficulties discussed here overlap with those set forth in
Guideline Four.
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The failed attempt to add an amendment to the Constitution
expressly prohibiting gender discrimination provides another example.
Proponents of the equal rights amendment were never able to satisfy
some who questioned the specific legal effects of the amendment.
Questions were raised, for example, about whether the amendment would
completely prohibit the government from making gender distinctions in
assigning troops to combat or individuals to military missions. This
failure to explain its legal implications caused many to doubt the
wisdom of the amendment.
7. Has there been full and fair debate on the merits of the proposed
amendment?
The requirement that amendments must be approved by supermajorities
makes it more difficult to amend the Constitution than to enact an
ordinary law. In theory, this requirement should produce a more
deliberate process, which, in turn, should mean that the issues are
more fully ventilated in Congress. Unfortunately, reality does not
always comport with theory. The result is that the process becomes more
like voting to approve a symbol than deciding whether to enact a
binding amendment to our basic charter. Congress should thus adopt
procedures to ensure that full consideration is given to all proposals
to amend the Constitution before votes are taken either in committee or
on the floor.
For most amendments, there are two types of questions: (a) the
policy questions, which include whether the basic idea is sound, and
whether the amendment is the type of change that belongs in the
Constitution, and (b) the operational questions, including whether
there are problems in the way that the amendment will work in practice.
If the answer to either part of the policy inquiry is ``no,'' then the
operational set of questions need not be asked. Even when there is a
tentative ``yes'' answer to the policy questions, the answer may become
``no'' when the operational problems are recognized. Thus, in general,
it is appropriate that Congress hold at least two sets of hearings, one
for each set of issues. At each set of hearings, both the prime hearing
time (normally at the start of the day) and overall hearing time should
be equally divided between proponents and opponents.
The balanced budget amendment illustrates this need for dual-track
consideration. Proponents and opponents of the amendment have debated
the policy questions at length. These include whether the existing
statutory avenues have failed, whether social security and perhaps
other programs should be excluded, and whether minorities of one House
should be given the absolute power to block both tax increases and
increases in the debt ceiling.
Unfortunately, there has been less consideration of operational
questions. These include how the amendment is to be enforced, how the
exception for declarations of war would be triggered, and whether the
use of cash receipts and disbursements would both be subject to evasion
and lead to uneconomical decisions, such as to enter into leases rather
than purchases for federal property in order to bring the budget into
balance for the current year.
Similarly, campaign finance proposals illustrate the need for a
two-track approach. Most of the debate in Congress concerning
constitutional reform of our campaign finance practices has centered
around the ``big picture'' issues. Members of Congress deserve praise
for their efforts to come to grips with these issues. They have debated
whether First Amendment rights are necessarily in tension with the
integrity of our political campaigns, whether the First Amendment
should be amended at all, and whether spending large amounts of money
in campaigns is bad. However, members have spent relatively little time
considering operational problems created by ambiguity in the language
of a proposed amendment. For example, what are ``reasonable'' limits
and who would determine this? What effect does the amendment have on
issue advocacy and on educational and ``get out the vote'' efforts of
parties and civic groups?
These examples demonstrate that careful deliberation by
congressional committees is essential. Committees should not move
proposed amendments too quickly, and they should ensure that
modifications to proposed amendments receive full consideration and a
vote before they reach the floor, with a committee report explaining
the options considered and the reasons for their adoption or rejection.
Perhaps a two-thirds committee vote should be required to send a
proposed constitutional amendment to the floor, thereby mirroring the
requirement for final passage. If two-thirds of those who are most
knowledgeable about a proposed constitutional amendment do not support
it, the amendment probably should never be considered by the full House
or Senate.
Although the relevant committees may have the greatest expertise
regarding a proposed constitutional amendment, its enactment will have
far-reaching impact. Thus, floor debates should not be cut short even
if there has been previous floor debate on an amendment in this or a
previous Congress, and there should be opportunities for full
discussion and votes on additions, deletions, and modifications to the
reported language. The flag desecration amendment highlights this
issue. At the end of the 105th Congress, the Senate Majority Leader
sought unanimous consent for consideration of the amendment, with a two
hour limit on debate equally divided between proponents and opponents
and with no amendments or motions in order.
To ensure that floor votes are taken only on language that has been
previously scrutinized, each House should adopt rules requiring that
only changes to a proposed constitutional amendment that have been
specifically considered in committee be eligible for adoption on the
floor, with one exception: votes on clarifying language should be
permitted with the consent of the committee chair and ranking member,
or by a waiver of the rules passed by a supermajority vote. Otherwise,
substantive changes not previously considered, but approved by a
majority vote on the floor, should be referred back to committee for
such further proceedings, consideration, and possible modification as
needed to ensure that they have been thoroughly evaluated, followed by
a second vote on the floor.
8. Has Congress provided for a nonextendable deadline for ratification
by the states so as to ensure that there is a contemporaneous
consensus by Congress and the states that the proposed
amendment is desirable?
The Constitution should be amended only when there is a
contemporaneous consensus to do so. If the ratification process is
lengthy, ultimate approval by three-quarters of the states may no
longer reflect such a consensus. Accordingly, there should be a non-
extendable time limit for the ratification of all amendments, similar
to the seven-year period that has been included in most recent proposed
amendments.
If extensions are permitted at all, they should be adopted by the
same two-thirds vote that approved the amendment originally. Moreover,
states that ratified the amendment during the initial time period
should be allowed to rescind their approvals, thereby assuring a
continuing consensus. Congress's decision to extend the ratification
period for the equal rights amendment on the eve of the expiration of
the allotted time illustrates the problems that this Guideline
addresses. Although many states ratified the amendment in the period
immediately after initial congressional approval, there had been a
shift in public opinion by the time that Congress extended the
deadline. It was therefore far from clear that the legislatures in all
the ratifying states would have approved the amendment if it had been
presented to them again after the ratification extension. The
perception that the amendment might be adopted despite the absence of a
contemporary consensus supporting it contributed to the divisiveness
that surrounded the struggle over its adoption.
appendix: a compendium of constitutional amendments
I. The Original Amendments
Amendment I (1791). Prohibits establishment of religion; guarantees
freedom of religion, speech, press, and assembly.
Amendment II (1791). Prohibits infringement of the right of the
people to keep and bear arms.
Amendment III (1791). Prohibits the quartering of soldiers in any
house during times of peace without consent of owner or during time of
war in manner not prescribed by law.
Amendment IV (1791). Guarantees security against unreasonable
searches and seizures; requires that warrants be particular and be
issued only on probable cause supported by oath or affirmation.
Amendment V (1791). Requires presentment to grand jury for infamous
crimes; prohibits double jeopardy; prohibits compelled self-
incrimination; guarantees due process of law; requires that property be
taken only for public use and that owner be justly compensated when
taken.
Amendment VI (1791). Guarantees right to speedy and public trial by
impartial jury, compulsory process, and counsel in criminal
prosecutions.
Amendment VII (1791). Guarantees right to jury trial in suits at
common law where value in controversy exceeds twenty dollars.
Amendment VIII (1791). Prohibits excessive bail or fines; prohibits
cruel and unusual punishment.
Amendment IX (1791). Guarantees unenumerated rights which are
retained by the people.
Amendment X (1791). Reserves to the states or the people rights not
delegated to the United States by the Constitution.
Amendment XXVII (1992).\1\ Provides that no law changing
compensation for members of Congress shall take effect until after next
House election.
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\1\ Although this amendment was part of the original package sent
to the states by the first Congress in 1791, it was not ratified until
1992.
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II. Reconstruction Amendments
Amendment XIII (1865). Prohibits slavery; authorizes Congressional
enforcement of Amendment's provisions.
Amendment XIV (1868). Defines U.S. and state citizenship and
prohibits state abridgment of privileges and immunities of U.S.
citizens; guarantees due process of law and equal protection of law
against state infringement; requires reduction of representation in
Congress when right to vote infringed; prohibits public officers who
participated in rebellion from holding public office; prohibits
questioning of public debt; makes void any debt incurred in aid of
rebellion against U.S.; authorizes Congressional enforcement of
Amendment's provisions.
Amendment XV (1870). Prohibits abridgment of the right to vote on
account of race; authorizes Congressional enforcement of Amendment's
provisions.
III. Other Amendments
A. Extensions of the Franchise
Amendment XVII (1913). Provides for popular election of Senators.
Amendment XIX (1920). Prohibits denial of right to vote on account
of sex; authorizes Congressional enforcement of the Amendment's
provisions.
Amendment XXIII (1961). Grants right to vote in presidential
elections to citizens of the District of Columbia; authorizes
Congressional enforcement of the Amendment's provisions.
Amendment XXIV (1964). Prohibits poll taxes for federal electiions;
authorizes Congressional enforcement of the Amendments provisions.
Amendment XXVI (1971). Prohibits denying right to vote on account
of age to citizens over eighteen; authorizes Congressional enforcement
of the Amendment's provisions.
[Note: two reconstruction amendments also relate to the franchise:
Amendment XIV (1868). Requires reduction in representation in
Congress for states that deny the right to vote to male citizens over
the age of twenty-one.
Amendment XV (1870). Prohibits denying the right to vote on account
of race, color, or previous condition of servitude.]
B. Regulation of Election and Tenure of President
Amendment XII (1804). Provides for separate electoral college
voting for President and Vice-President.
Amendment XX (1933). Provides that presidential term ends on
January 20; provides rules covering situations where President-elect or
Vice President-elect dies before inauguration.
Amendment XXII (1951). Prohibits President from serving more than
two terms.
Amendment XXV (1967). Provides that in case of removal or death of
President, Vice President shall become President; provides mechanism
for filling vacancies in office of Vice President; provides mechanism
for dealing with Presidential disability.
C. Amendments Overruling Supreme Court Decisions
Amendment XI (1798). Prohibits suits in U.S. courts against state
by citizen of another state (overruling Chisholm v. Georgia, 2 U.S. (2
Dall.) 419 (1793)).
Amendment XVI (1913). Authorizes income tax (overruling Pollock v.
Farmers Loan & Trust Co., 157 U.S. 429 (1895)).
[Note: two other amendments, one a Reconstruction amendment and one
dealing with the right of 18 year olds to vote--listed above under
extending the franchise--also overruled Supreme Court decisions:
Amendment XIV (1868). Grants U.S. citizenship to all persons born
or naturalized in U.S. (overruling Dred Scott v. Sandford, 60 U.S. (19
How.) 393 (1857)).
Amendment XXVI (1971). Prohibits abridgment of right to vote on
account of age for citizens who are eighteen and over (overruling
Oregon v. Mitchell, 400 U.S. 112 (1971)).]
D. The Prohibition Amendments
Amendment XVIII (1919). Establishes Prohibition; grants to Congress
and the states concurrent power to enforce the Amendment's provisions.
Amendment XXI (1933). Repeals Prohibition; prohibits importation of
intoxicating liquors into a state in violation of the laws of that
state.
Prepared Statement of Debra A. Tall on Behalf of the Anne Arundel
County, Maryland Police Department
As the Program Director for a victim assistance unit in a police
department for the past 16 years, I would like to urge you to pass
Joint Resolution 3. While I am fortunate to be from the State of
Maryland where we do have a State Constitutional Amendment for Victims'
Rights, which a little over half of the states have at the present
time, we still need a Federal Constitutional Amendment for victims'
rights to give more coverage to victims who come under military Federal
jurisdiction and other areas not covered by the State amendments. The
basic rights listed for victims of crimes of violence are really mostly
courtesies rather than rights. Anyone would want to be a part of public
proceedings which pertain to them and their family. People should be
able to submit a written or oral statement at the proceedings to reveal
the impact and losses that they have endured as a result of the crime.
Safety of the victim should be considered when an offender is released
from or escapes from a placement. Restitution from the convicted
offender should be ordered to repay the victim for his/her financial
losses as a result of the offense.
None of the fisted rights impose on the rights of the offender or
accused. A federal amendment on victims' rights would ensure that all
victims of violent crime would receive the same treatment and the same
rights despite where the offense occurred and what jurisdiction it fell
under. A federal amendment gives rights to victims in the states that
have not passed state constitutional amendments on victims' rights and
gives more assurance to the states who do have state amendments that
action can be taken if the victims' lights are denied. No rightful
conclusion, decision, or judgement can be reached in any matter without
having all parties involved being able to express information about the
effects of the offense or crime. Once everyone has provided the facts
and impact of the crime, then a better decision can be made because
more of a complete or total picture has been provided.
Please strongly consider passing Joint Resolution 3.
Prepared Statement of Laurence H. Tribe, Tyler Professor of
Constitutional Law, Harvard University Law School \1\
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\1\ For identification purposes only.
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I regret that I was unable to accept the invitation to testify in
person at the hearing of March 24, 1999, on the proposed Victims'
Rights Constitutional Amendment. Other commitments--including a final
push to complete a quite massive book that constitutes the first of two
volumes of my treatise, American Constitutional Law (3d. edition,
1999), which I must get to the publisher by early April--limit me to
making a brief written statement. As luck would have it, part of the
volume that I am now completing (sections 1-18 through 1-21) deals with
the topic of constitutional amendments--how they differ from changes in
constitutional interpretation; when changes in interpretation, coupled
with new legislation, are inherently insufficient; what processes must
be followed in amending the Constitution; what to make of the
suggestions by some scholars that the Constitution can be informally
``amended'' outside the parameters of Article V; how to assess the
suggestions of others that some properly ratified amendments may be
substantivally unconstitutional; and what criteria should be used in
evaluating the necessity and propriety of a proposed amendment. Because
my expertise is focused primarily on this kind of issue, it seems
appropriate to leave to others the detailed discussion of specific
questions posed by the drafting of the Victims' Rights Amendment and to
concentrate my own attention on the broader questions of whether this
proposed amendment addresses a problem that cannot be satisfactorily
resolved by anything less than a change in the text of the
Constitution, and whether this proposed amendment is consistent with
basic rights and principles elsewhere protected by the Constitution.
Beginning with the premise that the Constitution should not be
amended lightly and should never be amended to achieve short-term,
partisan, or purely policy objectives, I would argue that a
constitutional amendment is appropriate only when the goal involves (1)
a needed change in government structure, or (2) a needed recognition of
a basic human right, where (a) the right is one that people widely
agree deserves serious and permanent respect, (b) the right is one that
is insufficiently protected under existing law, (c) the right is one
that cannot be adequately protected through purely, political action
such as state or federal legislation and/or regulation, (d) the right
is one whose inclusion in the U.S. Constitution would not distort or
endanger basic principles of the separation of powers among the federal
branches, the division of powers between the national and state
governments, or the constitutional rights of the accused or other
individuals, and (e) the right would be judicially enforceable without
creating open-ended or otherwise unacceptable funding obligations.
I believe that S.J. Res. 3 meets these criteria. The rights in
question--rights of crime victims not to be victimized yet again
through the processes by which government bodies and officials 2
prosecute, punish, and/or release the accused or convicted offender--
are indisputably basic human rights against government, rights that any
civilized system of justice would aspire to protect and strive never to
violate. To protect these rights of victims does not entail
constitutionalizing the rights of private citizens against other
private citizens; for it is not the private citizen accused of crime by
state or federal authorities who is the source of the violations that
victims' rights advocates hope to address with a constitutional
amendment in this area. Rather, it is the government authorities
themselves, those who pursue (or release) the accused or convicted
criminal with insufficient attention to the concerns of the victim, who
are sometimes guilty of the kinds of violations that a properly drawn
amendment would prohibit.
Pursuing and punishing criminals makes little sense unless society
does so in a manner that fully respects the rights of their victims to
be accorded dignity and respect, to be treated fairly in all relevant
proceedings, and to be assured a meaningful opportunity to observe, and
take part in, all such proceedings. These are the very kinds of rights
with which our Constitution is typically and properly concerned.
Specifically, our Constitution's central concerns involve protecting
the rights of individuals to participate in all those government
processes that directly and immediately involve those individuals and
affect their lives in some focused and particular way. Such rights
include the right to vote on an equal basis whenever an issue is put to
the electorate for resolution by voting; the right to be heard as a
matter of procedural due process when government deprives one of life,
liberty, or property; and various rights of the criminally accused to a
speedy and public trial, with the assistance of counsel, and with
various other participatory safeguards including the right to
compulsory process and to confrontation of adverse witnesses. The
parallel rights of victims to participate in these proceedings are no
less basic, even though they find no parallel recognition in the
explicit text of the U.S. Constitution.
Because I will not be able to participate personally in the hearing
scheduled for March 24, 1999, and will be closeted away between that
time and mid-April finishing the book I have been writing, I thought I
should take this opportunity to respond to what I believe are likely to
be the basic objections to the proposed amendment from those law
professors who do not share my views of this proposal. I suspect that
those objections will be essentially the same as the objections set
forth in the letter written by a group of law professors to Senator
Orrin Hatch, Senator Joseph Biden, Congressman Henry Hyde, and
Congressman John Conyers on April 4, 1997, attacking the proposed
Victims' Rights Constitutional Amendment. Although I share many of the
broad views set forth in the letter--including the views that the
Constitution should not be amended without a strong need and that the
constitutional rights of persons accused of crime should not be
sacrificed in order to serve other values--I do not believe the letter
makes a convincing case for its ultimate conclusions. The case for the
proposed amendment need not rest on some nebulous notion that the
playing field must be balanced as between criminal defendants and crime
victims. It rests on the twin propositions (1) that victims have
important human rights that can and should be guaranteed protection
without endangering the genuine rights of those accused or convicted,
but (2) that attempts to protect these rights of victims at the state
level, or through congressional legislation, have proven insufficient
(although helpful) in light of the concern--recurring even if
misguided--that taking victims' rights seriously, even when state or
federal statutes or state constitutions appear to require doing so,
will somehow be unfair to the accused or to others even when no actual
constitutional rights of the accused or of anyone else would be
violated by respecting the rights of victims in the manner requested.
The proposed amendment would, in essence, counteract this problem.
Courts have sometimes recognized that the Constitution's failure to
say anything explicit about the right of the victim or the victim's
family to observe the trial of the accused should not be construed to
deny the existence of such a right--provided, of course, that it can be
respected consistent with the fair-trial rights of the accused. In
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), for example--a
case that I should confess I argued on behalf of the press--the
plurality opinion, written by Chief Justice Burger, noted the way in
which protecting the right of the press and the public to attend a
criminal trial--even where, as in that case, the accused and the
prosecution and the trial judge all preferred a closed proceeding--
serves to protect not only random members of the public but those with
a more specific interest in observing, and right to observe--namely,
the dead victim's close relatives. See 448 U.S. at 571 (``Civilized
societies withdraw both from the victim and the vigilante the
enforcement of criminal laws, but they cannot erase from people's
consciousness the fundamental, natural yearning to see justice done--or
even the urge for retribution.''). Although the Sixth Amendment right
to a public trial was held inapplicable in Richmond Newspapers on the
basis that the Sixth Amendment secures that right only to the accused,
and although the First Amendment right to free speech was thought by
some (see, e.g., 448 U.S. at 604-06 (Rehnquist, J., dissenting)) to
have no direct bearing in the absence of anything like government
censorship, the plurality took note of the Ninth Amendment, whose
reminder that the Constitution's enumeration of explicit rights is not
to be deemed exclusive furnished an additional ground for the Court's
holding that the Constitution presupposed, even though it nowhere
enumerated, a presumptive right of openness and participation in trial
proceedings. See 448 U.S. at 579-80 & n.15 (``Madison's efforts,
culminating in the Ninth Amendment, served to allay the fears of those
who were concerned that expressing certain guarantees could be read as
excluding others.'').
I discuss Richmond Newspapers in some detail here because it
illustrates so forcefully the way in which victims' rights to observe
and to participate, subject only to such exclusions and regulations as
are genuinely essential to the protection of the rights of the accused,
may be trampled upon in the course of law enforcement simply out of a
concern with administrative convenience or out of an unthinking
assumption that, because the Constitution nowhere refers to the rights
of victims in so many words, such rights may and perhaps even should be
ignored or at least downgraded. The happy coincidence that the rights
of the victims in the Richmond Newspapers case overlapped with the
First Amendment rights of the press prevented the victims in that
case--the relatives of a hotel manager who had been found stabbed to
death--from being altogether ignored on that occasion. But many victims
have no such luck, and there appears to be a considerable body of
evidence showing that, even where statutory or regulatory or judge-made
rules exist to protect the participatory rights of victims, such rights
often tend to be honored in the breach, not on the entirely
understandable basis of a particularized determination that affording
the victim the specific right claimed would demonstrably violate some
constitutional right of the accused or convicted offender, but on the
very different basis of a barely-considered reflex that protecting a
victim's rights would represent either a luxury we cannot afford or a
compromise with an ignoble desire for vengeance.
As long as we do so in a manner that respects the separation and
division of powers and does not invite judges to interfere with law
enforcement resource allocation decisions properly belonging to the
political branches, we should not hesitate to make explicit in our
Constitution the premise that I believe is implicit in that document
but that is unlikely to receive full and effective recognition unless
it is brought to the fore and chiseled in constitutional stone--the
premise that the processes for enforcing state and federal criminal law
must, to the extent possible, be conducted in a manner that respects
not only the rights of those accused of having committed a crime but
also the rights of those they are accused of having victimized.
The fact that the States and Congress, within their respective
jurisdictions, already have ample affirmative authority to enact rules
protecting these rights is not a reason for opposing this amendment.
For the problem with rules enacted in the absence of such a
constitutional amendment is not that such rules, assuming they are
enacted with care, would be struck down as falling outside the
affirmative authority of the relevant jurisdiction. The problem,
rather, is that such rules are likely, as experience to date sadly
shows, to provide too little real protection whenever they come into
conflict with bureaucratic habit, traditional indifference, sheer
inertia, or any mention of an accused's rights regardless of whether
those rights are genuinely threatened.
Of course any new constitutional language in this area must be
drafted so that the rights of victims will not become an excuse for
running roughshod over the rights of the accused. This amendment has
been written so that courts will retain ultimate responsibility for
harmonizing, or balancing, the potentially conflicting rights of all
participants in any given case. Assuring that this fine-tuning of
conflicting rights remains a task for the judiciary is not too
difficult. What is difficult, and perhaps impossible, is assuring that,
under the existing system of rights and rules, the constitutional
rights of victims--rights that the Framers of the Constitution
undoubtedly assumed would receive fuller protection than has proven to
be the case--will not instead receive short shrift.
To redress this imbalance, and to do so without distorting the
Constitution's essential design, it may well be necessary to add a
corrective amendment on this subject. Doing so would neither extend the
Constitution to a purely policy issue, nor provide special benefits to
a particular interest group, nor use the heavy artillery of
constitutional amendment where a less radical solution is available.
Nor would it put the Constitution to a merely symbolic use, or enlist
it for some narrow or partisan purpose. It would instead, help solve a
distinct and significant gap in our existing legal system's
arrangements for the protection of basic human rights against an
important category of governmental abuse.
Prepared Statement of David L. Voth on Behalf of the
Crime Victim Services
I believe the United States Constitution must be amended to protect
the rights of victims of violent crime. Only a Constitutional provision
can provide this nation the fundamental human right to be informed and
involved through the justice process.
The definition and implementation of ``justice'' in America must
include crime victims. The Preamble to the Constitution introduces the
principals of ``domestic tranquility,'' which was stolen from victims
of violent crime, and the goal to ``establish justice,'' which
generations later excludes victims. Our pledge of allegiance concludes
with, ``* * * justice for all.'' However, no ``due process'' rights
have been presumed for victims participation in our government
controlled justice system because those rights have not been
articulated in the Constitution. Crime victims often report they feel,
``treated like the criminal.'' In reality, victims need to be treated
with the same respect in our constitution as those accused or convicted
of crime. Victims deserve to be accorded a meaningful role, neither
ignored by the justice process nor in control of decisions.
Without a Constitutional foundation there are inadequate grounds to
correct violations of victims rights passed in the states, or to
provide the same floor of rights across all states. Only the U.S.
Constitution is the repository of our nation's core beliefs and
protections. During the era of our Founding Fathers, a victim of
violence could hire a prosecutor to initiate, prosecute and conclude a
criminal case, The Constitution did not alter this arrangement which
was an acknowledgment of the right of victims to participate, However,
those earlier rights of victims have evaporated, and now must be
reestablished with the wisdom that nearly 250 years of experience have
taught our nation.
The information, participation, and protection rights for victims
of violent crime in the proposed constitutional amendment are critical
to restoring victims, offenders, and the community to healthy,
accountable, and fair relationships. Having worked with thousands of
crime victims, I have found no reason that a stalking or domestic
violence victim should not be informed their perpetrator has been
arrested. I can conceive of no justification that family members of a
murdered loved one need to be excluded from a trial to which
constitutional guarantees exist for the accused, the public, and the
media. I have found no variation of justice in human relations that
alters my belief that offenders have an obligation to attempt repayment
for victim losses, and that the safety of the accuser from the accused
must be a consideration in determining the least restrictive control
and best rehabilitation method for a defendant. Only harm can come to
human relations and societal respect for public order when crime
victims are not treated with fairness, dignity, and respect.
I support the passage of the Senate Joint Resolution 3, The Victims
Rights Constitutional Amendment in order that we might have a more
perfect union.
Prepared Statement of Jan Withers on Behalf of the Stephanie Roper
Foundation and Mothers Against Drunk Driving
I have been active in the victims' movement since 1992, when our
daughter was killed by a drunk driver. Like most law-abiding citizens,
I believed that the American judicial system was in place to protect
the rights of our citizens. I believed that the defendant's
constitutional rights should be upheld. I still do. What came as a
horrific shock, was that I had no constitutional rights in the criminal
justice proceeding. The defendant pleaded guilty to vehicular
manslaughter, with the sentencing scheduled for a later date. The
defense attorney changed the sentencing date, we were not informed, and
so we were not present. We were kept away from the most important
proceeding of our lives relating to our daughter's brutal death. The
defendant had a constitutional right to be present and to be heard at
his own sentencing. I still adamantly support that. However, because
there was no constitutional support of my rights--what I consider just
basic rights--to be notified, to be present and to be heard--I was
denied the choice to be at that hearing.
I have subsequently listened to opponents of a federal
constitutional amendment for victims' rights say that we must not
tinker with the Constitution. I heard one legislator state two years
ago, that there were over 100 proposed amendments that year. I believe
that only where basic human rights of our American people are being
denied--and those rights cannot be upheld by state laws or
constitutions--should any amendment be considered. I submit to you that
this is the case regarding a large population of American people--
innocent people who have been victims of criminal acts. We go to court
believing that the judicial system will treat us fairly, with the same
dignity and respect afforded the accused. We quickly feel revictimized,
because we are treated as outsiders. This happens because there is no
constitutional support of our rights.
I was taken by a quotation of Franklin Roosevelt's engraved in
stone at his memorial. It reads, ``We must scrupulously guard the civil
rights and civil liberties of all citizens, whatever their background.
We must remember that any oppression, any injustice, any hatred, is a
wedge designed to attack our civilization.''
Victims do not ask for rights protected by our Constitution of the
United States at the expense of rights for the accused. This is not an
``either-or'' issue. This is not a surprising new concept--to have
equal rights in America.
As a victim services provider for the past five years, I have
accompanied hundreds of victims and their families to court
proceedings. Today, in Maryland, we have strong statutes and a
constitutional amendment supporting victims' rights, and still I watch
those laws be overlooked and rights denied. Victims are vulnerable and
fragile during these times, so even if they could afford to stand up
and fight for their ``statutory rights'', they seldom have the stamina.
I submit to you that if those statutes were upheld by the
Constitution of the United States, there would be little, if any,
disregard for victims' basic rights to be notified and present at the
proceedings. Is that not treating them fairly, with the dignity and
respect that our founding fathers intended when creating this sacred
document? Furthermore, did they not foresee that they could not foresee
all things, and that is why they were brilliant enough to allow for
amendments? Without these important additions, I would not be able to
voice my opinion at the polls as a woman, nor would my African American
friends. Little did I know, however, that as a law-abiding citizen I
would not be permitted to be present at the sentencing and to speak for
my daughter, who's basic right to live had been stolen from her.
I urge you to balance the scales of justice and support SJR 3, the
proposed constitutional amendment for victims' rights. Allow all your
citizens in the judicial setting to be afforded basic constitutional
rights that were intended by our forefathers and is fundamental to our
nation's integrity.
Prepared Statement of Marlene A. Young on Behalf of the National
Organization for Victim Assistance
Chairman Hatch and Members of the Committee, I appreciate the
opportunity to write on behalf of the National Organization for Victim
Assistance to support Senate Joint Resolution 3, a proposed
Constitutional amendment for victim rights.
I am proud to do so as a representative of the 4,500 agencies and
individuals from all across the United States who are our members, and
the Board of Directors whom they have elected to serve as trustees of
the victims' movement.
Most of what follows is adapted from my April 28, 1988, testimony
before the Committee on an identical bill. Obviously, our basic views
on the issue have not changed, although this statement does reflect
additional ideas that have developed over the past year.
i. nova's place in the victims' movement
Founded in 1975, NOVA is the oldest and most far-reaching organized
champion of victim rights and services in what has become a worldwide
movement to bring healing and justice to crime victims. Historically,
those elected to our Board represent the true strength and diversity of
the victims' movement in America:
Among our past Presidents are two clergy members and
university professors, the Executive Director of the
International Association of Chiefs of Police, the founder and
operator of a battered women's shelter, the founder and
administrator of a rape crisis center, a state corrections
administrator, three elected prosecutors, a state victim
services administrator, and a county-based victim assistance
director.
Of the current Board members, two are founders of the sexual
assault treatment programs in their counties, and another
founded her county's domestic violence program;
Two have turned their own victimizations into a life of
activism in behalf of fellow survivors of a life-threatening
explosion and homicide, respectively;
One is a noted pioneer in bringing crisis intervention
services to victims right at the crime scene;
Several have been part of volunteer teams to bring such
skills to whole communities traumatized by crime--including
Oklahoma City and Jonesboro, Arkansas;
One heads her state's crime victim compensation program, and
one administers his state's victim assistance grants program;
A number are leaders in providing victim services within the
institutions of law enforcement, prosecution, and corrections;
Several hold office within the justice system--in law
enforcement, prosecution, and the judiciary--where they work
for improved treatment of victims within their professions;
Others do so within the mental health professions;
One is a preeminent leader in improving the institutions of
justice--including justice for victims--in Indian Country;
One is the author--literally--of his state's constitutional
amendment for victim rights.
And a few, while retired from direct involvement with
victims, cannot and will not retire from the victims' movement.
There is another measure of the diversity of NOVA's board: like the
victims' movement it leads, our Board membership is a ``coalition of
bleeding-heart conservatives and hard-nosed liberals,'' in the apt
phrase of one of our past Presidents. This represents more than an
ideological spectrum; it also describes the active engagement of many
of them in electoral politics.
I stress this point because our diverse and sophisticated Board was
the first national organization in the victims' movement to endorse the
adoption of a victim rights amendment to the U.S. Constitution, and in
recent years has considered with great care the changes in the draft
language that its lead sponsors have made. Twice it has acted on
motions to treat these changes as an honorable, productive step forward
in our quest to see victims obtain their Constitutional rights, and
twice it has voted, without abstention or dissent, to support the
leadership of Senators Kyl and Feinstein in moving us to our ultimate
goal.
I hope, Mr. Chairman, that the NOVA Board's unanimous endorsement
of S. J. Res. 3 is treated with great weight by the United States
Congress. I am honored to report that it is so treated by the victims'
movement as a whole.
ii. the victim's interest in seeing justice done
Proud as I am to speak for an institution I admire, I am also
privileged to be here to represent the millions of Americans who fall
victim of crime each year. Like so many in this room, I too have known
the fury, the terror, and the pain of victimization.
I cannot tell you how stunned I was to enter my dream home in rural
Oregon in 1980 to find it had been virtually wiped clean of all my
belongings. Nor can I fully express my fear, two weeks later, when
alone in my partly-refurbished house, I observed two people, one with a
handgun in his pocket, go to the side of my house and hear them break
the same basement window that the earlier burglars had used to gain
entry. Though I quietly dialed the state law enforcement agency, I knew
it might take them an hour or more to get to me, so I slipped outside
and banged a ladder on the wall to scare the intruders away. I was
successful in my efforts, but simply to recall that event brings back
tremors to my body.
I cannot convey the pain that my husband and his family endured,
and I with them, after the partial, butchered remains of his cousin
were discovered buried in her Indiana garden.
I cannot fairly describe my rage at having my car broken into, not
once or twice, but three times, and each time finding its stereo ripped
out of it. It was, I should say, the first new car I had ever owned, a
special possession. I often raise these three violations of my property
in my training courses, always often remembering my pledge at the time
to lead a nationwide campaign to seek the death penalty for car stereo
thieves.
That joke usually gets a chuckle. The outrage behind it was, and
remains, no laughing matter.
And I cannot express the horror, shame, and terror I experienced
when a university professor I respected sexually assaulted me in his
office. The police officer I approached just after I fled the building
knew of no way to investigate this one-on-one crime--this was before
there were DNA tests to identify the semen on my body--so he merely
drove me home. When I later confronted my professor with his crime, he
coldly told me my grades would suffer if I reported it to the
university. I didn't, they didn't, and the next year, I chose to
continue my studies 3,000 miles away.
This is only the second time I have publicly referred to this
crime--the first was at the 1979 hearings of the Victims Committee of
the American Bar Association on witness intimidation--and I repeat it
now not because the proposed amendment before you would have brought
justice to my case. In truth, only one of the crimes my family and I
have endured over the years ever resulted in an arrest and prosecution,
and, in that case, we were very gratified with the treatment we
received before and after the conviction of Robert Lee for the murder
of Ellen Marks, my husband's cousin.
I can report that some of the patrol officers I encountered after
reporting the crimes against me treated me very well, and some very
poorly. None of them, however, read me my rights--because I had none.
That much will change when victims have the Constitutional right to
be told of their Constitutional rights.
My main purpose in reviewing my own distresses endured at the hand
of criminals is to underscore as strongly as I can the alliance I feel
with the thousands of crime victims I have come to know in my two
decades of work in the victims' movement. Far too many of those friends
and acquaintances have been made to feel contaminated, not vindicated,
by the justice system. And I take personally the injustices inflicted
on them. They are good people, all of them, who deserved better. They
include:
Sharon Christian, 20 years old, a young victim of rape who
reported the crime and whose offender was arrested. She was
doubly victimized when, two weeks later, she was walking down
the street in her neighborhood and saw the young man hanging
out on the corner. He had been released on personal
recognizance with no notice to her, and she had been given no
opportunity to ask for a restraining order or for the court to
consider the possibility of bond.
Nancy Slaven Peters, mother and survivor of Cassie Slaven,
age 2\1/2\, when she was murdered by drowning in 1981 by two
boys, ages 6 and 10, in Greene County, Ohio. To this day she
has no idea what happened to the boys. As she said to me, ``For
all I know, they have raped and murdered others * * * but I
didn't get any information at the time and I haven't had any
since.''
Roberta Roper, the extraordinary advocate who is now co-
chair of the National Victims Constitutional Amendment Network,
and who has worked tirelessly for victim rights in Maryland and
across the nation. Among the many outrages in her case, she was
denied the right to sit in the courtroom at the trial of her
daughter's murderer because she might, by her presence,
influence the outcome.
Virginia Bell, a retired civil servant, who was accosted and
robbed some five blocks from the U.S. Capitol, suffering a
broken hip. Her medical expenses were over $11,000 and the
resulting debilitation sent her to live with her daughter in
Texas. While her assailant pled guilty, she was not informed,
and the impact of her victimization was never heard by the
court. I know her anger when the judge did order restitution
but in the random, insulting amount of $387.
Harley Wilson, a gentleman in his early sixties when he was
shot in the back by a robber of a convenience store. He was
there to buy powdered sugar for his wife's baking--in the wrong
place at the wrong time. The crime occurred before there was no
compensation or rights for victims in that state. The crime
cost him over $550,000 in medical expenses, his home, his
business, and his health. He and I have been friends over the
years, and I wept over his letter which said he was ready to
die because life was so hard.
Ross and Betty Parks, parents of a murdered daughter Betsy.
The Parks waited seven years for a murder trial. As Betty Parks
explained, ``It was * * * six and one half years after Betsy
died when Gary Coleman was extradited from a prison in Georgia
to North Carolina and charged with her murder. For the next
fourteen months he was able to delay going to trial with motion
after motion--thirty-one of them at one point.''
I have become friends with every one of these doubly-wronged
victims of violent crime, and the kind of maltreatment they received
has been repeated to me hundreds of times by victims I have met in my
travels. The problems addressed by the resolution before you are
painful, persistent, and pervasive.
iii. the merits of the proposed amendment
From the evening of April 13, 1985, to this day, there has been a
nationwide coalition of victim advocates committed to the passage and
ratification of a U.S. Constitutional rights for victims. In many
respects, S. J. Res. 3 goes farther than the proposal we originally
backed, that recommended by 1982 Presidential Task Force on Victims of
Crime.
In some respects, that coalition--the National Victims
Constitutional Amendment Network (NVCAN)--is responsible for expanding
the breadth of the earlier proposal. Our members held several retreats
to examine anew the core values deemed worthy of constitutional
protection, and we ended up going beyond our old formula of giving
victims the right to be informed of, present, and heard at every
critical proceeding. That more expansive list of values--including a
right to know their rights, standing to assert them (at least
prospectively), a right to know of one's offender's release or escape,
to something like a speedy trial, to restitution, and to strong
authority to craft legislation to enforce the rights--remains intact in
Section 1 of the proposed amendment.
One may say of the changes in the language after it came under the
wise patronage of its Senate sponsors, after considerable consultation
with representatives of the Justice Department, the criminal justice
community, and others, that it is now infected with a ``rule of
reason.'' So instead of a right to restitution, it offers a right to
the order of restitution--the former a ``promise'' on which government
could not guarantee delivery, the latter one it can. The right to
notice is now required to be ``reasonable,'' a ``speedy trial'' becomes
one ``without unreasonable delay.'' This is not the watering down of
our handiwork, but the perfection of it, for at no time did we seek to
be the agents of draconian, unintended consequences. The watch-word of
all our campaigns for victims' rights is ``a voice, not a veto.'' And
we are grateful to Senators Kyl and Feinstein for holding to that
spirit of reasonableness in the recrafting of the resolution.
We are also very supportive of the ``exceptions'' provision--
authorized to achieve ``a compelling interest''--so that, for example,
the victim will not be notified of an inmate's release when that victim
had been the primary abuser in a violent domestic relationship. True,
Congress and the states will have act affirmatively to insure such an
exception is put on the books, but we have no doubt that they will do
so.
Now, added to the reasonableness of the draft before you are two
elements of pragmatism, both designed to reduce the disruptiveness of
the new amendment upon ratification. One would limit the scope of
coverage to victims of violent crime, and the other would expand the
scope of actions for which victims could not get retrospective relief
to include sentencing already rendered and pleas already accepted.
As a basic policy matter, NOVA strongly preferred to leave these
items out of the resolution. But at higher policy level--seeking the
adoption of the rights we most care about, for the people we work for
the most--we were completely persuaded that the additions greatly
served that higher cause, and we embrace them--trusting to the proven
good faith and legislative acumen of their principle proponent, Senator
Joseph Biden.
We thank him for his contributions--the medicine was hard to
swallow, but now that it is digested, we feel far more optimistic about
the prospects of achieving our mission.
And we feel far less pessimistic about the consequences of the two
revisions.
First, as to the need to act statutorily to bring victim rights to
property crime victims, that was already a requirement of the last
version we supported. Furthermore, after Congress and the states enact
statutes implementing the rights for violent crime victims, and the
culture of our justice system grows accustomed to the new rules, it
seems to us inevitable that legislators and justice officials who are
now wary of too much change too fast will enthusiastically extend the
same procedural decencies to the victims of theft, and fraud, and other
property crimes--and this time, in a completely new Constitutional
environment, the broadened statutes will be honored.
Second, while judges reading just the words of the amended
Constitution will have few opportunities to give retroactive redress to
victims whose rights were violated, they will clearly have the
authority to order those who commit such violations to never do so
again. More, when they read the provisions of future implementing
statutes, judges will be empowered to act more forcibly, even to
correct past misdeeds. For again, in time, it seems to us certain that
Congress and the states will devise remedies that buttress the rights
we hope you will place in our charter of ordered liberty.
iv. justice for all
I would like to conclude with some thoughts expressed by my
husband, John Stein, some five years after he attended the trial of the
man who killed his cousin, a trial in which his family asked him to
speak for them at the sentencing hearing. Some of his concerns were
written as follows:
``I am * * *''
``I am * * *''
``* * * somebody!''
``* * * somebody!''
Anyone who has seen the Reverend Jesse Jackson preach his
interactive, secular sermons with African-American youth has
been witness to hand-to-hand combat with despair. If anyone
doubts that these young people feel themselves relegated to the
fetid backwaters of society, let that skeptic try to explain
the fervor with which they merely assert their human existence.
The sense of alienation Reverend Jackson seeks to lift from
the shoulders of his young parishioners is one which millions
of crime victims have come to experience. Of all the losses
victims bear, perhaps none is more lasting or harmful to more
victims than the felt loss of autonomy, of control over their
lives, of connection to the social order.
Crime victims have ample reason to feel a certain kinship
with racial minorities--particularly African-American youth of
the inner city--partly because of a shared sense of
powerlessness, and sometimes--often, in fact--they are African-
American youth of the inner city. We often lament that they
have the highest arrest rates for violent crime among our
various subpopulations, but rarely remember that their
victimization rates are also the highest.
Some people like me have a passion for victim rights because
they were fully accorded to me when I needed them--and they
made a positive difference in my family's reconstruction. But
the victim rights revolution is a spotty one. It is not
reaching everyone, whatever the laws on the books may say.
Those most likely to be left behind are lower income Americans
and racial minorities.
These are the findings of extensive research conducted by the
National Victim Center (NVC) in four states, two with
relatively weak statutory protections for victims, two with
strong ones, backed up by state victim rights amendments. The
overall disparities between the two groups of states are
telling. Thus, for example, only 42 percent of the victims in
the ``weak'' states were informed of their right to submit a
victim impact statement at sentencing, whereas 75 percent of
the victims in ``strong'' were so informed. This suggests that
state constitutional amendments make a very significant
difference--but not big enough--not by a wide margin.
And especially not to non-whites. Even the ``strong'' states
displayed weaknesses in honoring certain rights to minority
victims. While 80 percent of white victims whose offenders were
up for parole were told of their right to speak at the parole
hearing, only 41 percent of the non-white victims were so
informed. Sixty-three percent of white victims were informed of
a possible plea agreement; only 43 percent of non-whites were.
The figures for information about a suspect's bail release were
63 and 43 percent respectively.
Not surprisingly, the levels of dissatisfaction with the
justice process had a pronounced racial characteristic, most
notably in the weak states, where only 38 percent of white
victims were dissatisfied with the opportunities to be heard at
pleas and dismissals, a rate that rose to 62 percent among
racial minorities. Comparable dissatisfaction rates over
sentencing were 48 and 70 percent respectively.
We have long had a saying in the victims' movement: ``Justice
for all--even the victim.'' We are slowly achieving that ideal,
at least for people whose demographic characteristics match
mine. For those of us who care about all victims, especially
those most likely to become victims by virtue of their
demographics, our ``progress'' is bittersweet indeed.
John's discouragement is felt by most of us in the victims'
movement. As a nation, we will not provide equal protection of the
law--at least, not of victim rights law--until we make its application
an American birthright. Until that happens, it will not just be racial
and economic minorities whose claims to be treated to dignity will be
unheeded in the justice system, for we see the systemic indifference
imposed on victims who are also people with disabilities, or who are
elderly.
So the resolution before you, when favorably acted on by the
Congress and the states, will finally let every crime victim proclaim
within the halls of justice, ``I am somebody.''
Thank you for this opportunity to write to you in behalf of NOVA,
of the victims it represents, and of justice.
Prepared Statement of Bruce Fein on Behalf of the Citizens for the Fair
Treatment of Victims
WASHINGTON--Saying it would offer crime victims theoretical rights
rather than concrete assistance, a national coalition today urged the
United States Senate to reject a so-called victims' rights amendment to
the United States Constitution.
The coalition, Citizens for Fair Treatment of Victims, said that
the proposed amendment fails to meet the real needs of crime victims.
It neglects concrete assistance--which can be secured by statute--such
as victim-witness advocates, training for prosecutors and judges,
funding for shelters, safe havens and counseling services that would
more effectively improve the treatment of victims as they come in
contact with the criminal justice system.
``Although we commend and share the desire to help crime victims,
amending the Constitution to do so is both unnecessary and dangerous,''
said Bruce Fein, a constitutional scholar who served in the Justice
Department during the Reagan Administration. ``Ultimately the amendment
would likely be counter-productive, hindering effective prosecution and
putting an enormous burden on state and federal law enforcement
agencies.''
Fein noted that more than 25 states have already amended their
state constitutions to protect victims' rights and most of the others
have adopted legislation to achieve the same result. ``Crime victims
are not forgotten stepchildren in the political process,'' Fein added.
``Indeed, they command virtually universal sympathy. In other words,
crime victims occupy the political catbird seat; no amendment is
necessary to rescue them from obscurity.''
Fein underscored that the varied and evolving state approaches to
victims' rights reflected federalism at its best, and was sympathetic
to an array of recent congressional action restoring state options in
areas from welfare and education reform to health care for the
indigent. The proposed constitutional amendment would obstruct the
state victims' rights learning process and ability to correct initial
errors or misjudgments.
Sue Osthoff, Executive Director of the National Clearinghouse for
the Defense of Battered Women, said that the proposed amendment could
actually harm battered women. ``All too frequently, women who have been
battered and have not received protection from the police or legal
system, are forced to resort to violence to defend their lives and
those of their children,'' Osthoff said. ``Sadly, these women, who are
victims, then become the accused. Under this amendment, their batterers
could perversely gain new rights.''
Citizens for Fair Treatment of Victims is a coalition of advocates
for victims, women and scholars. Its members include the National
Clearinghouse for the Defense of Battered Women, the National Coalition
Against Sexual Assault, the National Network to End Domestic Violence,
the Arizona Coalition Against Domestic Violence and the National
Association for the Advancement of Colored People.
Other groups that have spoken out against the proposed amendment
include the National Sheriffs Association, the Federal Public and
Community Defenders, NOW Legal Defense and Education Fund and more than
450 law professors from around the country.
__________
March 10, 1999.
To: Senate Committee Hearings Concerning National Crime Victims Bill of
Rights Amendment.
From: Helene Cantrell, Talisheek, LA.
On September 8, 1996 my daughter, Rachel Prejean, was in labor and
on her way to the hospital to deliver her baby when she was hit head on
by a drunk driver. Sadly, my beautiful granddaughter, Abby Danielle,
died and my daughter was severely injured. The drunk driver plea
bargained his sentence and only served one year in the parish jail. He
was released from jail in November 1998 the same month that Louisiana's
crime victims bill of rights went into effect. After his release he
applied for his driver's license to be reinstated. Thanks to our newly
imposed bill, we were notified that he was to go before the judge to
get his license back and were able to be in that court room to make
sure he didn't. He withdrew the motion when he knew the judge was not
going to give him back his license.
We can not even begin to convey how we feel about this crime
victims bill of rights. Had it not been for this, I'm quite sure he
would have gotten his license back and we would not have even known. We
feel it is very important for this crime victims bill of rights to
become national so that every victim has the right to be informed and
protected.
__________
Victim Services Advisory Board,
Montgomery County, MD, March 10, 1999.
Senator Barbara Mikulski,
U.S. Senate,
Washington, DC.
Dear Senator Mikulski: The Montgomery County Victim Services
Advisory Board (VSAB) commits itself to working with victims of every
type of crime. Part of our Board's responsibility is to ensure the
existence of victims' rights and fairness to victims.
All Victims deserve to be present at trials and other judicial
hearings involving their assailant and receive plea agreement
notifications. Of course, family members should be included as victims
in a case involving a homicide victim. Attendance at various types of
judicial hearings has helped many victims with their recovery from a
crime. In many cases, witnessing their assailant being sentenced gives
victims a small amount of closure to their or their family member's
tragic experience.
While our legal system can't make the crime ``go away,'' the right
to attend public proceedings relating to the crime and to be heard, if
present, or be able to submit impact statements offer victims a sense
of control after a crime experience that has rendered them powerless.
Some victims may choose not to attend court proceedings but this should
always be their option. After all, while the State is the legal victim,
we must never forget that behind it are the real victims, the ones who
are raped, robbed and murdered. They are the ones who suffer the
emotional, physical and financial devastation because they become
victims of crime. The State does not bleed or die, individual victims
do!
Foreseeing the positive impact that Joint Resolution 3 could have
on the lives of victims, the Victim Services Advisory Board strongly
support the proposed amendment to the Constitution of the United States
to protect the rights of crime victims.
Just as the rights of the criminals and defendants are protected by
the Constitution, so must the rights of crime victims be also protected
in the name of equal justice! The VSAB urges you to balance the scale
of justice by passing Joint Resolution 3.
We thank you for your concern about fairness to victims.
Sincerely,
Kay Cummins,
Co-Chair, VSAB.
__________
State of Wisconsin,
Governor's Council on Domestic Abuse,
Madison, WI, March 11, 1999.
Representative Paul Ryan,
Longworth House Office Building,
Washington, DC.
Dear Representative Ryan: The Governor's Council on Domestic Abuse
supports Joint Resolution 3, which proposes an amendment to the
Constitution of the United States to protect the rights of crime
victims. A victims rights amendment will be an important starting point
for greater rights for crime victims and for the empowerment of victims
of domestic abuse. We believe that as more victims of domestic abuse
are actively engaged in the criminal justice process, a stronger
message will be sent to batterers that their violence will not be
tolerated.
We ask your support in securing the passage of this bill. Thank
you.
Sincerely,
Senator Joanne Huelsman,
Co-Chair.
Eileen Connolly-Keesler,
Co-Chair.
__________
Department of Health and Human Services,
Montgomery County, MD, March 8, 1999.
Dear Senator Kyl: I am writing in support of SJR 3, The National
Victims' Constitutional Amendment. I am the father of two girls who
disappeared on March 25, 1975 from a shopping mall in Wheaton,
Maryland. I now work as a victim assistant for Montgomery County,
Maryland. Since the crime we have had no word on the whereabouts of the
girls, Sheila and Kate. They were 12 and 10 at the time. As we approach
the 24th anniversary of their disappearance, no more is known to us now
than it was then. I realize that our situation is a bit unique from
other crime survivors but working with victims brings it home everyday.
Crime victims need insulation from a world that has gone wrong for
them. If it takes protection in the form of legislation, all the
better. Maryland passed the victims rights amendment a few years ago
and now we are hearing from victims and survivors in the courtroom
feeling better about having the opportunity to tell their story, being
advised of hearings concerning their cases feeling that they are
finally included, however slightly, in the judicial process. A small
thing to ask when one has lost a loved one to a violent crime.
I guess I could relate these feelings on behalf of my coworkers
here at the Montgomery County Victim Assistance and Sexual Assault
Program in Rockville, Maryland. I am just one voice however, as are
you, but together perhaps we can form a chorus on behalf of victims
across the county.
Sincerely,
John Lyon,
Victim Assistant.
National Clearinghouse for the Defense of Battered Women,
Philadelphia, PA, March 22, 1999.
Hon. Orrin Hatch, Hon. Patrick Leahy,
Chairman, Judiciary Committee, Ranking Member, Judiciary
Committee,
U.S. Senate, U.S. Senate,
Dirksen Senate Office Building, Dirksen Senate Office Building,
Washington, DC. Washington, DC.
Dear Chairman Hatch and Senator Leahy: Last year, the National
Clearinghouse for the Defense of Battered Women sent in a position
paper outlining our opposition to S.J. Res. 6, the proposed Victims'
Rights Amendment to the United States Constitution.
After reviewing S.J. Res. 3, the newly proposed amendment to the
Constitution of the United States to protect the rights of crime
victims, the National Clearinghouse for the Defense of Battered Women
stands firm in our opposition. Although the proposed amendment
addresses some of the issues we raised last year, we continue to have
grave concerns about the new proposal and continue to oppose it.
We have enclosed the position paper of the National Clearinghouse
for the Defense of Battered Women opposing S.J. Res. 3. We believe that
our arguments remain compelling and relevant to the newly proposed
amendment.
We would appreciate it if this paper could be placed in the hearing
record.
We look forward to assisting the Committee in its deliberations on
this important subject.
Sincerely,
Sue Osthoff,
Director.
______
Position Paper On Proposed Victims' Rights Amendment
introduction and overview
The National Clearinghouse for the Defense of Battered Women
strongly opposes the proposed Victims' Rights Amendment to the United
States Constitution.\1\ Our opposition to the proposed amendment does
not reflect a lack of support for, or empathy with, victims of crime.
We, like the proponents of the amendment, are extremely disturbed by
the way in which crime victims are treated by our criminal justice
system. As an organization that assists battered women, we know only
too well the paucity of services and supports afforded to victims, and
we see firsthand the tragic consequences that result from society's and
the criminal justice system's devaluing and misunderstanding of the
experiences of victimization.
---------------------------------------------------------------------------
\1\ Legislators have drafted numerous versions of the Amendment,
the most recent of which (S.J. Res. 3) was introduced by Senators Kyl
and Feinstein on January 19, 1999.
---------------------------------------------------------------------------
The National Clearinghouse is a unique victims' advocacy
organization; we assist battered women who, in response to their
victimization, end up in conflict with the law. All too frequently,
women who have been battered and have not received the protection of
society's institutions, including the police and the legal system,
resort to violence or other illegal acts to defend their lives and
those of their children against on-going abuse. Sadly, these women, who
are victims, then become the accused; they become defendants in
criminal prosecutions. Our mission, since we opened our doors in 1987,
has been to advocate for these victims of violence who continue to fill
our nation's courtrooms as defendants and continue to fill our nation's
prisons.
The National Clearinghouse for the Defense of Battered Women
opposes the amendment for the many reasons outlined below.
Too many victims of domestic violence become the accused. We
work with battered women who, as a result of responding to the
abuse they experienced, are accused of a crime. Do these women
lose their ``victim'' status once they have defended their
lives and become defendants? And, once battered women defend
themselves against their abusers' violence, do these batterers
who terrorized and victimized their partners deserve the
exalted constitutional status as ``victims''? The Amendment
refers to victims and criminal defendants as though they were
mutually exclusive and designates someone a victim solely by
virtue of the fact that another person has been charged with a
crime. The basic error in this absolutist position--that the
defendant is the perpetrator and the complaining witness is the
victim--is revealed in the cases of battered women charged with
crimes. It would, for example, permit a husband who has
repeatedly beaten his wife to stand before a judge and object
to her release on bail, even when she is the only parent who
has cared for their minor children. Or, if the battered woman
ended up getting convicted of a crime against her batterer, the
Amendment would require her to pay restitution to her abuser
because he is considered the ``victim.''
The federal constitution is the wrong place to try to
``fix'' the complex problems facing victims of crimes;
statutory alternatives and state remedies are more suitable.
Our nation's constitution should not be amended unless there is
a compelling need to do so and there are no remedies available
at the state level. Instead of altering the US Constitution, we
urge policy makers to consider statutory alternatives and
statewide initiatives that would include the enforcement of
already existing statutes, and practices that can truly assist
victims of crimes, as well as increased direct services to
crime victims.
Much of the impetus for the proposed amendment has been the
shameful realization that crime victims are often neglected, if
not ignored, in the criminal process. We understand and
sympathize with the fact that closure of the criminal case can
be an important component of healing for some victims of crime.
We fully believe that the victim of a crime should be kept
thoroughly apprised of all scheduling, hearings and
developments in the case, and that s/he should be provided the
right of access as long as it does not interfere with the
defendant's fair trial rights. We fully support prosecutors'
paying greater attention to, being more sensitive to, and more
respectful of the needs of their victims/witnesses, and, where
appropriate, we support the provision of advocates for victims.
However, all of these things can and should be accomplished
within the present system, through legislation on the state
level or through federal statutes. The healing that may happen
when victims are heard, informed and respected during the
criminal legal process is extremely important. But, as we have
found in working with victims of domestic violence, the
criminal system is often a particularly poor forum in which to
try to solve the complex of social and other problems inherent
in victimization. Unfortunately, the grave injustices of being
victimized probably cannot be fully addressed or remedied in
the criminal justice system. We urge, instead, that additional
time, money and energy go into providing the support and
services that many victims of crime very much need and
certainly deserve.
The proposed amendment's real benefit to crime victims is
speculative at best and, in fact, may end up hindering, rather
than helping, victims. It is entirely unclear how the proposed
amendment would increase basic courtesies and respect for
victims (particularly in light of the amendment's explicit
provision for governmental immunity from civil actions). In
addition, there are particular problems with the mandatory
restitution clause. By forcing restitution to a constitutional
level, restitution payments will be given priority over the
payment of federal fines. This will certainly end up seriously
undercutting payments to the Victims of Crime Act Fund (VOCA)
in cases where defendants lack the resources to fully satisfy
both. VOCA currently provides funds to more than 3,000 local
victims' services organizations, including many domestic
violence and sexual assault programs. If this Amendment passes
there will ironically be less money available for victims'
services.
While the amendment promises much to victims, it provides
virtually no remedies for victims whose rights are violated. As
is inherently the case with federal constitutional amendments,
the proposed amendment is broadly worded and suggests many
rights without corresponding remedies (or methods for enforcing
these lights). In fact, the amendment specifically prevents
victims from receiving monetary damages.
If passed, the enforcement of the amendment will divert
critically needed resources from already underfunded victim
assistance programs and from all key branches of the criminal
justice system. The National Clearinghouse is persuaded that
the constitutional financial mandate this amendment imposes
upon the states would require their already overburdened
governments to divert funds from agencies that provide
meaningful assistance to battered women, and that the
implementation of the amendment would create numerous
practical, administrative and financial burdens for courts,
prosecutors, law enforcement personnel, and corrections
officials. Congress has a responsibility to investigate
thoroughly the cost of the proposed amendment to the 50 states,
and the drastic shift in resources that would result if the
amendment were ratified. Congress has not undertaken this
analysis and the passage of the resolution before completion of
this analysis does a disservice to the public.
This Amendment will not reduce the number of battered women
being charged with crimes. Some proponents of the Amendment
have been arguing that passage of the Amendment will reduce the
numbers of battered women who end up as defendants because, if
the Amendment were passed, battered women would be much more
likely to turn to the criminal justice system for assistance
before they get arrested. While we acknowledge that criminal
justice reform is essential in helping to reduce violence
against women and is a very effective tool for some battered
women, for others, however, it fails to offer any real
protection. We also know that many women will never turn to the
criminal justice system and will not do so even if the
Amendment were able to provide all the support and services it
promises to victims (which is highly unlikely). Unfortunately,
for many battered women, the first time the system ``pays
attention'' to them is when they enter it as defendants. The
same system that failed to protect them or couldn't seem to
find any resources to assist them before they get arrested,
suddenly finds all sorts of resources to prosecute them
vigorously. In fact, one of the unintended consequences of many
mandatory and pro-arrest policies has been a massive increase
in the numbers of battered women being arrested in many
communities. Until all women are safe, battered women will
continue to become defendants. This Amendment will not change
that reality.
Defendants are facing loss of liberty and life at the hands
of the state, and their rights must not be eroded. Much has
been made of the need for this amendment in order to
``balance'' the rights of victims with the fights of
defendants. We agree that, if the playing field were level and
the consequences of the ``imbalance'' equal, the goal of
``balance'' would be a germane one. But such an argument is
completely inappropriate when talking about balancing the
rights of victims and the rights of defendants. In this
instance, the playing field is far from level; the power of the
state far outstrips that of the defendant and his or her
attorney, and the consequences at trial are dramatically
different for victims and defendants. For example, a defendant
may lose her liberty or even her life as result of the trial;
the harsh reality is that the victim has very little to lose as
a result of the trial--the victim's losses occurred long before
the trial. We understand that victims have experienced (often)
tragic consequences as a result of being victimized; and we
take their experiences and losses extremely seriously.
We also understand that victims can gain a sense of control and a
host of other important psychological and emotional results
when they are kept informed, are actively listened to, and are
respected throughout the trial process. But the role of the
criminal justice system is to determine whether or not the
defendant committed the offense he or she is charged with, not
to restore the victim. We believe that victims should be
restored and should be informed, heard and respected throughout
the proceedings, but this cannot and should not be achieved by
eroding the rights of defendants.
If passed, the Amendment is sure to wreak havoc on the Bill
of Rights, and will inevitably erode the basic constitutional
guarantees that are designed to protect all of us--including
victims of violence who are criminal defendants--from wrongful
convictions. There is no question that the primary constituents
of the National Clearinghouse--battered women who have been
victimized and then have become defendants--will be hurt by
this Amendment. For example, depriving the trial courts of
their historic authority to sequester witnesses--including
alleged victims--from the courtroom until they testify would
permit victim-witnesses to be influenced because they would
hear the testimony and cross-examination of other witnesses. As
a result, jurors will be far less likely to receive
independent, truthful testimony and the possibility of a fair,
reliable and just verdict will be diminished. In cases
involving battered women charged with crimes, the abuser and/or
his family become the ``victims;'' if not sequestered, they
would have the right to be present and heard at all stages of
the process. We know that batterers' families often collude in
keeping the violence secret for many reasons (denial, their own
experiences of abuse, d/or fear of retribution if they speak
out against the abuser). If passed, the Amendment would make it
possible for batterers and their families to listen to one
another's testimony and to tailor their own testimony so as to
avoid effective cross-examination when called as a witness.
Additionally, passage of the Amendment would make it much more
difficult for judges to limit testimony of ``victims'' at all
stages of the proceeding, even if their testimony is not
relevant or is so inflammatory that justice would be
undermined.
Justice rushed is justice denied--for all, including victims
of crimes. The proposed Amendment says victims have the right
to ``a final disposition of the proceedings * * * free from
unreasonable delay.'' In our work at the National
Clearinghouse, we see the tragic results that occur when
attorneys rush to trial without proper investigation and
preparation. Many battered women are unable to discuss their
experiences of abuse candidly until they have established a
relationship of trust and confidence with their defense
counsel, a process which can take considerable time. The
amendment would allow batterers to force cases to trial before
the battered woman's attorney has adequately investigated or
prepared for the case, thereby substantially affecting reliable
determinations of guilt and creating an intolerable risk of
wrongful conviction.
Victims should be restored and should be informed, heard and
respected throughout the proceedings, but this cannot and
should not be achieved by eroding the rights of defendants. All
of us who work within the criminal legal system and are
committed to justice need to be concerned about due process and
the fights of defendants. One of the purposes of the
constitution is to protect individuals from government abuses
and to preserve liberty, not to ``get a conviction at any
cost,'' or to provide victim advocacy. None of us who are
committed to justice (including many victims of crime) has an
interest in diluting rights intended to prevent wrongful
deprivation of liberty and unreliable determinations of guilt.
As victim advocates, we need to be in the forefront of
advocating for justice--which includes supporting the right of
defendants to get fair trials and this Amendment will erode
this light.
The proposed amendment would radically alter and jeopardize
basic constitutional principles that protect us all. The
proposed amendment would mark a radical and unprecedented
change in our system of criminal justice and to the foundation
of our Bill of Rights, a change which would jeopardize those
rights and undermine the truth-seeking function of the criminal
justice process. Our system of justice is built on the concept
of public, rather than private, prosecutions. The accuser is
the government, not the aggrieved individual. The structural
integrity of our entire justice system depends on this
equation--between the accused and the government, not the
accused and the individual victim of crime.
The very purpose of the Bill of Rights is to curtail the power of
the government against the rights of the accused. It arms the
accused with basic guarantees, such as the presumption of
innocence and the need of proof beyond a reasonable doubt.
These fundamental guarantees are necessary to ensure that the
government's power is not abused; that the innocent do not fall
prey to the weight and power of the government; and that only
the guilty are convicted.
To elevate victim participation in the criminal process to the
level of a federal constitutional amendment would jeopardize
the critical balance between accuser and accused, as reflected
in the Bill of Rights, and threatens to diminish those rights.
None of us, including victims of crime, has an interest in
diluting rights intended to prevent wrongful deprivation of
liberty, and unreliable determinations of guilt.
The criminal justice system does not overprotect; rather it
re-victimizes battered women defendants. Much support for the
proposed amendment is grounded on the assumption that criminal
defendants have too many rights, and that victims have none.
While we agree that victims should have greater support,
advocacy and respect, it is a fallacy that the criminal justice
system overprotects the rights of the defendants, especially
the rights of indigent defendants and defendants of color. On a
daily basis, we assist countless battered women defendants who
have been denied basic due process. We assist women who did not
receive fair trials and were wrongfully convicted because, for
example, their attorneys did not investigate, understand, or
properly present vital defense evidence. Many of these women
were denied funds for expert testimony that would have enabled
the jury to hear and understand the basis of their defense.
Thus, in our experience, the criminal justice system does not
overprotect; rather, it often re-victimizes battered women
defendants, as can be attested to by the thousands of
wrongfully convicted and incarcerated battered women defendants
who fill jails and prisons across this country.
conclusion
In conclusion, the National Clearinghouse for the Defense of
Battered Women agrees that crime victims have much to gain when they
are kept informed, actively listened to, and respected throughout the
adjudication of a criminal case, but passage of a Constitutional
Amendment is the wrong way to achieve these goals. Enhanced victim
participation in the justice system can be, and largely has been, made
by statutory enactments at the state level. At the federal level,
Congress has ample authority to enact new laws, as well as to expand
and amend the laws it has already passed, to improve the treatment of
crime victims without jeopardizing our cherished constitutional
protections.
__________
Victim Services,
New York, NY, March 23, 1999.
Senator Orrin G. Hatch,
Chairman.
Senator Patrick Leahy,
Ranking Minority Member,
U.S. Senate Committee on the Judiciary,
Dirksen Senate Office Building,
Washington, DC.
Dear Senators Hatch and Leahy: I write to set out Victim Services'
opposition to S.J. Res. 3, which proposes a Constitutional amendment
for victims' rights.
Victim Services is the nation's largest victim assistance agency.
Our mission is to heal the wounds of violence and prevent
victimization. We started out in 1978 as a small project in the
Criminal Court in Brooklyn, New York, helping to give victims a
stronger voice and role in the criminal justice system. In the 20 years
since then, we have pioneered victim assistance programs in criminal
and civil courts, schools, police precincts, and communities throughout
the City of New York and beyond. We also work on policy and legislative
initiatives to expand victims' rights and choices through research and
analysis that is also informed by experience with our clients.
Victim Services assists over 200,000 clients each year. One of the
core tasks of Victim Services' staff is to advocate for victims'
meaningful participation in the criminal justice system. Every day, in
our family and criminal court offices, in police programs, domestic
violence legal services program, domestic violence shelters and
community offices, our staff inform victims about their rights, support
them with counseling and practical assistance, and intervene when
necessary to ensure that their rights and choices are respected. The
positions we take on policy and law are grounded in the lives of these
victims. We listen to their voices and strive to advocate in ways that
are meaningful to them. Thus, our opposition on S.J. Res. 3, outlined
in the points set out below, is informed by the urban victims we serve
who are, most often, poor people of color living in economically
depressed neighborhoods who find it harder than others to effectively
assert their rights.
Victims rights are critical but not the same as defendants'
rights: It goes without saying that we believe participatory
rights for victims are essential. However, our clients'
experiences teach us that, although victims of violent crime
suffer in numerous and often devastating ways, unlike
defendants, they do not face the loss of fundamental rights or
liberty at the hand of the government. The risk of unwarranted
state power being used against the individual was historically,
and still is at the core of the constitutional safeguards for
criminal defendants. These remain essential protections in a
society where it is easy for someone to become a criminal
defendant, especially when, like many of our clients, they
suffer race, gender, and other forms of discrimination and are
voiceless and powerless. For them, above all, it is critical to
guard the rights of the accused.
Constitutional rights of victims and defendants will
inevitably clash: Our concerns about S.J. Res. 3 are not
allayed by the argument that it merely accords victims equal
status with defendants. The proposed new Constitutional rights
have serious practical implications. For example, in York State
(as in other states) potential witnesses are routinely excluded
from the courtroom so that their testimony will not be tainted
by the testimony of other witnesses and thereby unfairly
prejudice the defendant. The proposed amendment creates a
victim's right not to be excluded from the proceedings. These
interests inevitably must conflict, and a judge faced with this
scenario would be forced to weigh a defendant's rights to a
fair trial against a victim's new Constitutional right not to
be excluded from the proceedings.
Some domestic violence victims are especially at risk: We
are also concerned about the potential impact of S.J. Res. 3 on
domestic violence victims. Victim Services helps about 75,000
domestic violence victims each year, who provide compelling
examples of why we cannot support S.J. Res. 3. Batterers
frequently make false claims of criminal conduct against their
victims. This is yet another weapon in the batterer's arsenal,
and can result in an arrest even where a long, documented
history of abuse against the true victim exists. These cases
result in profound injustice; the victims are jailed, often
their children are removed from their care, and the victims
risks ending up with a criminal conviction. Nevertheless, under
S.J. Res. 3, it appears that the batterer would initially be
accorded ``victim'' status and benefit from all of the new
Constitutional rights. The same would be true in cases where
domestic violence victims strike back at their batterers in
self-defense.
Proponents of the amendment state that the power to create
exceptions to the new rights in section 3 of S.J. Res. 3 would protect
domestic violence victims in the domestic violence scenarios to which
we refer. However, it remains totally unclear how these exceptions
would be made, by whom, and according to what criteria. Numerous
questions arise. Does the provision allow or require the creation of
exceptions? At what point in the trial process would there be a ruling
about this? How and when would domestic violence victims assert their
status? Would they be able to do so without compromising their Fifth
Amendment rights? What evidence would be sufficient to persuade a court
that the defendant is a victim of domestic violence--particularly if
there are no police records or orders of protection, as is often the
case. These unanswered questions illustrate the difficulty of knowing,
from the brief, general wording of S.J. Res. 3, whether the proposed
rights would be meaningful and practicable or whether they would result
in harm to some victims.
In conclusion, S.J. Res. 3 may be well intentioned, but good
intentions do not guarantee just results. Victim Services remains
wholeheartedly committed to advancing the interests and addressing the
needs of victims. We believe much progress has been made in New York
and other states, and that information about the implementation of
victims' rights has only recently begun to emerge. Federal intervention
is usually reserved for situations where the states need to be pulled
along--but almost everywhere legislative frameworks of rights now exist
and 33 states have passed state constitutional amendments. We have
difficulty justifying the extensive resources needed to pass a
Constitutional amendment when so much remains to be done in terms of
enforcing existing victims' rights and providing the vital support
services victims deserve. We believe that the amendment would at best
be merely symbolic, at worst harmful to some of the most vulnerable
victims, and meaningless for the majority of victims whose cases are
not prosecuted.
Thank you for considering the concerns expressed in this letter and
the points previously raised in our letter to you of June 9, 1998.
Sincerely,
Gordon J. Campbell,
Executive Director.
__________
National Network to End Domestic Violence,
Washington, DC, March 23, 1999.
Hon. Orrin Hatch,
Chairman, Judiciary Committee,
U.S. Senate,
Dirksen Office Building,
Washington, DC.
Dear Chairman Hatch: I write to apprise you of our continued
opposition to the proposed constitutional amendment to protect the
rights of crime victims. After careful review and consideration of S.J.
Res. 6, we find that despite some minor changes since the 105th
Congress our concerns with this proposed constitutional amendment have
not changed.
The National Network to End Domestic Violence is a membership
organization of state domestic violence coalitions from around the
country, representing nearly 2,000 domestic violence programs
nationwide. As you may be aware, many of our member coalitions and
programs have supported the various state constitutional amendments and
statutory enactments similar to the proposed federal constitutional
amendment. And yet, we view the proposed federal constitutional
amendment as a different proposition, both in kind and in process.
For a victim of domestic violence, the prospect of participating in
a protracted criminal proceeding against an abusive husband or father
of her children is difficult enough without the added burden of an
unforgiving system. Prosecutors, police, judges, prison officials and
others in the criminal justice system may not understand her fear, may
not have provided for her safety, and may be unwilling to hear fully
the story of the violence she's experienced and the potential impact on
the impending criminal proceeding, sentencing and release of the
defendant. Each of these potential failures in the system underscore
the need for the criminal justice system to pay closer attention to the
needs of victims. Unfortunately, S.J. Res. 6 promises much for victims,
but guarantees little on which victims can count to address these
practicalities.
Let me outline some of our concerns.
First, if a constitutional right is to mean anything at all, it
must be enforceable fully by those whose rights are violated. The
proposed amendment expressly precludes any such enforcement rights
during a proceeding or against any of those who are charged with
securing the constitutional rights. The lack of such an enforcement
mechanism is a fatal flaw--a mere gift at the leisure of federal, state
and local authorities.
Second, the majority of the existing similar state statutes and
constitutional amendments have been on the books fewer than 10 years.
Thus, given our very limited experience with their implementation, it
will be many years before we have sufficient knowledge to craft a
federal amendment that will maintain the delicate balance of
constitutional rights that ensure fairness in our judicial process.
Without benefiting from the state experience, we run the risk of
harming victims. We must explore adequately the effectiveness of such
laws and the nuances of the various provisions before changing the
federal constitution. State constitutions are different--they are more
fluid, more amenable to adjustments if we need to ``fix'' things. A
change in the federal constitution would allow no such flexibility,
thus potentially harming victims by leaving no way to turn back.
And, lastly preserving constitutional protections for defendants,
ultimately protects victims. This is especially true for domestic
violence victims. The distinctions between defendant and victim are
sometimes blurred by circumstance. For a battered woman who finds
herself thrust into the criminal justice system for defending herself
or having been coerced into crime by her abuser, a justice system that
fairly guarantees rights for a defendant may be the only protection she
has. Her ultimate safety may be jeopardized in a system of inadequate
or uneven protections for criminal defendants, as is likely with the
enactment of S.J. Res. 6.
Chairman Hatch, these are concerns that compel us to exercise
restraint before proceeding with a constitutional amendment. As you
know, in this country each year, too many fall victim to violent crime.
These crimes cause death and bodily injury, leaving countless victims--
women, men, boys and girls--to pick up the pieces. Tragically, the
criminal justice system is less a partner and more an obstacle to the
crime victim's ability to attain justice. A constitutional amendment is
not the answer for this problem. But, improving policies, practices,
procedures and training in the system would help tremendously.
Like you, we are committed to ensuring safety for domestic violence
victims through strong criminal justice system enforcement and critical
services for victims. However, the resources that must be invested into
the process of passing such an amendment and getting it ratified by the
states could be better invested in training and education of our
judiciary, prosecutors, police, parole boards and others who encounter
victims and in changing the regulations and procedures that most
adversely impact victims. For those of us working in the field of
domestic violence, we know the harm that can be caused directly to
victims when policies are pushed without some experience to know
whether they will work. And, while this may seem an inconsequential
concern, for a battered woman whose safety may be jeopardized by such
swift but uncertain action, the difference may be her life.
Please understand that our opposition to S.J. Res. 6 is not
opposition to working through the traditional legislative channels to
deliberate these issues and to support legislative changes that will
allow us to explore various ways in which we can provide victims the
voice they deserve in the criminal justice system.
Thank you for your consideration. If you have additional questions,
please do not hesitate to be in touch with me at 202-543-5566. We have
appreciated your leadership on issues concerning domestic violence over
the years and look forward to continuing to work with you.
Sincerely,
Donna F. Edwards,
Executive Director.
__________
Duke University School of Law,
Durham, NC, March 23, 1999.
Senator Patrick J. Leahy,
Senate Judiciary Committee,
Dirksen Senate Office Building.
Dear Senator Leahy: I appreciated the opportunity to testify before
the Judiciary Committee in April 1998 in opposition to the proposed
Victims' Rights Amendment. During the past year, I have examined the
assertions of supporters of the proposed Victims' Rights Amendment that
it is necessary to protect the legitimate interests of victims against
what is sometimes called ``trumping'' by the constitutional rights of
defendants. I conclude that those claims are clearly unfounded.
My research will be published later this year in the Utah Law
Review in a symposium on victims' rights. I have prepared a somewhat
more succinct version for consideration by the Judiciary Committee as
it examines the proposed amendment further. I ask that this essay be
made a part of the record on this amendment.
Because the proposed amendment is unnecessary, I hope that the
Judiciary Committee will not support it. Amending the Constitution is
too momentous an event to take unless such action is required.
Moreover, if the amendment were to be approved, I fervently hope it
will be modified by adding the provision offered by Senator Durbin last
year that ``Nothing in this article shall be construed to deny or
diminish the rights of an accused as guaranteed by this Constitution.''
Sincerely,
Robert P. Mosteller,
Professor of Law.
______
The Unnecessary Victims' Rights Amendment: \1\ Professor Robert P.
Mosteller, Duke University Law School
Those who advocate amending the United States Constitution should
bear the burden of persuasion and must be able to justify their
proposed amendment as necessary. Amending the United States
Constitution is simply too momentous for any other standard to apply.
After studying the claims of proponents, I conclude that the proposed
Victims' Rights Amendment is not necessary, and therefore its
proponents have failed to make their case.
---------------------------------------------------------------------------
\1\ A more detailed version of this essay with be published in 1999
Utah L. Rev.
---------------------------------------------------------------------------
Proponents make two basic types of claims. First, they argue that,
regardless of the existence or nonexistence of defendants' rights,
governmental officials ignore victims' rights found in federal or state
statutes and state constitutional provisions.\2\ Second, the
Amendment's backers claim that either through the actual operation of
defendants' constitutional rights or excessive deference to defendants'
constitutional claims, victims are denied their established rights
under statutory law and state constitutional provisions.\3\ They
sometimes make a third argument, which I want to deal with quickly. It
is that national uniformity is required with respect to a fundamental
set of victims, rights.\4\ If absolute, formal uniformity is demanded,
the argument for a constitutional amendment is valid to that extent.
However, if some degree of variation is acceptable, then federal
legislation setting standards for state legislation, buttressed by
federal financial incentives would serve as an effective way to
accomplish a type of ``flexible uniformity.'' As demonstrated by
``Megan's Law'' on community notification, that mechanism can operate
very effectively and could successfully encourage states to adopt a
detailed group of victims' rights as well.\5\ Indeed, specific aid and
guidance in implementing rights is likely more important to their full
enjoyment than is uniform national recognition of a minimal set of
rights.\6\
---------------------------------------------------------------------------
\2\ See Laurence H. Tribe & Paul G. Cassell, Embed the Rights of
Victims in the Constitution, LA Times, July 6, 1998, at B5.
\3\ National Victims Constitutional Amendment Network (NVCAN),
Background Kit, p. 9 (April 1998) .
\4\ See Paul G. Cassell & Steven J, Twist, Rule of Law: A Bill of
Rights for Crime Victims, Wall St. J., Apr. 24, 1996, at A15.
\5\ See 42 U.S.C. Sec. 14071 (1996) & 62 Fed. Reg. 39,009 (1997)
(DOJ implementation guidelines).
\6\ In their Op/Ed piece, Professors Tribe and Cassell cite a
recent study that ``victims' rights are more frequently denied to
racial minorities and presumably other disfavored groups who are unable
to assert their interests effectively. Only an unequivocal
constitutional mandate will translate paper promises into real
guarantees for all victims.'' Tribe & Cassell, supra note 2, at B1.
Surely Tribe and Cassell cannot be arguing that when the issue is
unequal protection of minorities as to state guaranteed rights, which
is the issue examined in the study, the problem is the lack of
constitutional protection. Protection against such racial
discrimination is already explicitly in the Equal Protection Clause of
the Fourteenth Amendment.
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Uniformity is not required or, for that matter, even preferred when
it comes to establishing a set of victims' rights. Our collective
thinking on the precise definition of victims' rights is in its
infancy, and we are hardly ready to embed a set of largely unchangeable
rights into the Constitution. Rather, patience is particularly
appropriate because of the extraordinary political popularity of
victims' rights, which will ensure that the issue will not be ignored.
a. the asserted need to cure ``official indifference''
No governmental bureaucracy operates perfectly, and the criminal
justice system is hardly an exception. Given this context, it is
preordained that existing victims' rights are not uniformly enforced,
This is the result in substantial part of various institutional
failures that may collectively be termed ``official indifference.''
In a recent commentary, conservative constitutional scholar Bruce
Fein discussed this official indifference to victims' rights, noting
that a federal constitutional right both is unnecessary and would
provide no guarantee of effectiveness:
* * * Nothing in the Constitution or in any Supreme Court
precedent inhibits the enactment of state or federal laws that
protect crime victims. Indeed, victims rights legislation is a
staple of contemporary political life and seems destined to
remain so. The beneficiaries command virtual universal
sympathy, a fail-safe formula for legislative success. Crime
victims need no constitutional protection from political
overreaching.
It is said by amendment proponents, however, that state
judges and prosecutors often short-change the scores of
existing victims' rights statutes. If so, they would equally be
inclined to flout the amendment. The judicial oath is no less
violated in the first case as in the second.\7\
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\7\ Bruce Fein, Deforming the Constitution, Wash. Times, July 6,
1998, at A14.
Feins argument is simple and compelling. Enacting a federal
constitutional amendment will not cure the failures by judges and
prosecutors to follow existing laws. Indeed, if such ``bureaucrats''
are willing to ignore the requirements of existing, binding law that
they have sworn to uphold, adding another layer of law supporting the
same right has no necessary impact.
Significantly, the vast majority of the provisions in the proposed
Victims' Rights Amendment fall into this category of correcting
official indifference. Their enforcement does not conflict with any
constitutional right of defendants, and therefore, violations occur as
a consequence of governmental officials' either purposefully or
inadvertently ignoring their existing legal obligations. The right to
notice of all proceedings unequivocally falls into this category, as
does the right of notice of release or escape of the defendant.
Similarly, the right to be present and to be heard at many types of
proceedings, such as hearings to determine conditional release from
custody, acceptance of a negotiated plea, and parole can also receive
protection either by demanding compliance by state officials with
established laws or by passing such laws and promulgating appropriate
administrative procedures, The problem with enforcing these victims'
rights does not and cannot result from judicial protection of
defendants' constitutional rights because such rights are nonexistent
in these areas. Finally, as a matter of legal entitlement, the right to
restitution may be granted as fully and effectively by statutory or
state constitutional right as it can be by federal constitutional
right, and the defendant convicted of an unlawful act against the
victim has no basis for constitutional challenge to such an order.
Of course, one cannot know whether enshrining the right in a
federal constitutional amendment would cause judges and prosecutors to
take their oaths more seriously. Perhaps, but the impact is almost
entirely speculative, The necessity of giving the additional dignity to
these rights that a federal constitutional provision would entail is
particularly questionable given the extraordinary popularity of
victims' rights provisions. Normal political processes will, with time,
effectively punish those administrative officials and even judges, many
of whom are elected, who ignore the popular mandate to give victims
greater notice and voice in the process.
Moreover, the existence of constitutional rights will not
automatically eliminate official indifference to specific individual
rights. A recent ABC news report described how thousands of people
arrested in New York City between 1996 and 1997 for minor offenses,
such as driving with a suspended license or selling sneakers on the
street without a vender's permit, were subjected to strip searches that
federal courts had previously ruled illegal under the Fourth and
Fourteenth Amendments to the Constitution.\8\ The existence of a
federal constitutional right did not prevent this huge ``bureaucratic
snafu,'' which is likely to cost the city millions of dollars.
---------------------------------------------------------------------------
\8\ See John Miller & Peter Jennings, A Closer Look: Why People
Were Strip Searched for Minor Crimes, World News Tonight, April 23,
1998.
---------------------------------------------------------------------------
This official indifference to the Fourth Amendment rights of
arrested suspects serves as a good point of departure for evaluating
the impact of enacting a constitutional amendment for victims. While I
have used the term ``official indifference'' to describe the failure of
officials to enforce fully existing victims' rights, that term is
perhaps too negative in characterizing motivation, Most officials are
not disdainful of victims or their rights, as is sometimes the case in
the highly contentious and occasionally combative relationship between
defendants and those in law enforcement. Indeed, malevolence, or even
true indifference towards victims' rights is largely unknown. Instead,
I believe that officials fail to honor victims' rights largely as a
result of inertia, past learning, insensitivity to the unfamiliar needs
of victims, lack of training, and inadequate or misdirected
institutional incentives. However, the most important reason that
existing victims' rights are not more fully enforced is the lack of
resources and personnel needed to accomplish this new and additional
set of tasks.
Since non-recognition of victims' rights results from the system's
inability to find the time and personnel necessary to notify, consult,
and protect, this problem can be overcome by greater resources in most
instances and by administrative sanctions for failure to comply in
those rarer cases that approach actual indifference. A commitment of
resources and administrative will surely will exert a major impact in
making victims' rights a reality for large numbers of victims; enacting
a federal constitutional amendment, a largely symbolic act with respect
to enforcing existing rights, is of speculative value by comparison.
The proposed constitutional amendment's lack of direct effectiveness is
particularly clear because the Amendment prohibits damage awards for
violations of its provisions,\9\ though damages are even available for
violations of the Fourth Amendment rights of citizens, such as the
improper strip searches cited earlier.
---------------------------------------------------------------------------
\9\ See S.J. Res. 3 (1999) at Sec. 2 (stating that ``[n]othing in
this article shall give rise to or authorize the creation of a claim
for damages against the United State, a State, a political subdivision,
or a public officer or employee'').
---------------------------------------------------------------------------
Although the amendment is not necessary to achieve enforcement of
victims' participatory rights, such as notice and opportunity to be
heard, I want to acknowledge that a federal constitutional amendment
could operate as a helpful mechanism for enforcing victims' rights
against public officials through federal class action litigation that I
doubt many of its political supporters would endorse. Damage actions
are barred by Senate Joint Resolution 3, but suits for declaratory and
injunctive relief are not. Class actions to enforce participatory
rights against states also appear available. The Minority Report on
Senate Joint Resolution 3 indicates that, in response to inquiry, the
Justice Department acknowledged that federal court orders against
states, like those in prison reform litigation, would be possible.\10\
Indeed, this ``specter of extensive lower federal court surveillance of
the day to day operations of state law enforcement operations'' has led
the Conference of Chief Justices to oppose the Amendment.\11\
---------------------------------------------------------------------------
\10\ See Minority Views of Senators Leahy, Kennedy and Kohl, S.
Rep. No. 105-409, 105th Cong., 2d Sess. 70 (1998); Minority Views of
Senator Thompson, S. Rep. No. 105-409, 105th Cong., 2d Sess. 49 (1998).
\11\ Letter by Joseph R. Weisberger, Chief Justice of the Rhode
Island Supreme Court and Chairperson of the Task Force on Victim Rights
of the Conference of Chief Justices to Senator Orrin Hatch on Senate
Joint Resolution 6, May 16, 1997, at 1-2.
---------------------------------------------------------------------------
One may imagine various scenarios for how the Victims' Rights
Amendment, if enacted, might affect activities in the federal and state
courts. The prospect of the lower federal courts' closely
superintending the operations of state law enforcement to ensure that
victims' rights are protected is one that might trouble traditional
conservatives most. Nevertheless, federal supervision of state criminal
proceedings is clearly a possible consequence of adopting the proposed
amendment. Enforcing the Amendment in this fashion likely would have a
substantial impact upon the effectiveness of victims' rights, but that
fact does not make enacting the Amendment necessary to effective
enforcement. Because of the political popularity of victims' rights,
alternatives are available that less harshly impact federalism
concerns. By contrast, such alternatives are generally unavailable to
protect the rights of the politically unpopular.
b. arguments that the amendment is required to counter defendants'
rights that allegedly trump victims' rights or to eliminate excessive
judicial deference to defendants' interests
The second argument advanced by the Amendment's supporters centers
on the courts' treatment of defendants' rights and takes two forms:
first, that a federal constitutional provision is required to eliminate
the ability of defendants to trump legislation and state constitutional
provisions through invocation of federal constitutional provisions;
second that the Amendment will eliminate the current excessive judicial
deference to those constitutional provisions protecting defendants'
rights. Here, I challenge the factual premise. I assert that victims'
rights simply have not been thwarted by defendants' claiming
constitutional protection. If a federal constitutional provision is
required, those who support it should bear a burden of proof, not
conjecture, that the problem of defendant ``trumping'' is
real. However, they cannot produce the evidence.\12\
---------------------------------------------------------------------------
\12\ In an Op/Ed piece, Professors Tribe and Cassell quote from a
report ``that today `large numbers of victims are being denied their
legal rights.' '' Tribe & Cassell, supra note 2, at B1. However, the
National Victim Center Report that they cite does not show that
defendants' rights prevented victims' rights from being enjoyed. All
violations identified result from failures of officials to comply with
legal requirements. In some instances, the legal structure in the
states chosen did not even permit a testing of the possibility that
defendants' constitutional rights were trumping victims' statutory
rights. In the important area of the right to attend trial, the laws on
witness sequestration in three of the four states involved in the study
did not have a specific provision covering victims, and in the fourth
state, a victim/witness was to be sequestered until after he or she
testified as the first witness. There is no indication that judges
failed to comply with the letter of the existing established law
because of a valid claim by the defendant of constitutional rights or
excessive deference to an invalid claim. Thus, the claim is only that
state officials failed to enforce fully provisions in the law according
to the reports of victims. See National Victim Center, Statutory and
Constitutional Protection of Victims' Rights: Implementation and Impact
on Crime Victims 88 (1996).
---------------------------------------------------------------------------
Let us look at four rights--to be notified, to be present, to be
heard, and to receive restitution--and ask for the evidence that a
constitutional provision is required. The first of these rights can be
eliminated from the search. No one can argue that anything in the
federal constitution protecting defendants inhibits the right of notice
regarding any public criminal proceeding. Enforcement of three rights--
to be present, to be heard, and to receive restitution--are thus of
interest.
As to these three rights, I shall examine two related but distinct
types of cases: (1) the reversing of a conviction under the federal
constitution because a victim had exercised a state or federal right
and (2) the invalidation of a victims' right under the federal
constitution without an impact upon a criminal conviction. The first
task, which one would assume should be easy for the Amendment's
supporters, is to find ANY currently valid appellate opinion reversing
a defendant's conviction because of enforcement of a provision of state
or federal law or state constitution that granted a right to a victim.
I have challenged supporters of the amendment to produce such a case,
but they have failed to produce even one.\13\ Obviously, the type of
significant body of law that would warrant the remedy of a
constitutional amendment simply does not exist.\14\ Moreover, the
Amendment's supporters cannot claim that defendants or prosecutors
would not be motivated or equipped to litigate these cases at the
appellate level. If the cases cannot be found, and they cannot, the
reason must be because they do not exist. No failure of motivation or
explanation that the cases occurred but were not reported would
logically explain their absence.
---------------------------------------------------------------------------
\13\ The challenge was issued before I attended a symposium on
victims' rights organized by Professor Cassell. Other conference
participants included Steve Twist, member of the Executive Committee of
the National Victims Constitutional Amendment Network, Professor
Douglas Beloff, author of a new textbook on victims, and Professor
William Pizzi, Also, in connection with the 1998 Senate hearings,
Senator Leahy asked Professor Cassell to provide the appellate cases of
which he was aware in which defendants successfully overturned their
convictions based on the victim's presence in the courtroom or other
state or federal victims' rights provision. Professor Cassell deferred
response until the completion of a treatise on the subject with
Professor Beloof and referred the Senator to a collection of cases by
the National Victim Center. See Questions for the Record from Senator
Leahy for the Hearing on S.J. Res. 44 on April 28, 1999, at 3. The
National Victim Center listing contains no cases in this category or
the one discussed below involving cases where victims' rights, rather
than defendants' convictions, are ``trumped'' by federal constitutional
provisions. The challenge was unanswered.
\14\ The closest case I can find in any of the writings of
Professor Cassell or the case listings by the National Victim Center/
NVCAN to one that reverses a criminal conviction based on action
enforcing a victim's right is State v. Guzek, 906 P.2d 272 (Or. 1991).
In Guzek, a defendant's conviction was reversed because a citizen
initiative was passed that permitted victim impact evidence to be
introduced but no change was made in the death penalty statute. The
state supreme court found the evidence irrelevant and reversed.
However, the error is not one of federal constitutional stature.
Indeed, State v. Moore, 827 P.2d 1073 (Or. 1996) decided the next year
stated that a change in the statute rendered Guzek irrelevant. State v.
Muhammad, 678 A.2d 164 (N.J. 1996) and Noel v. State, 960 S.W.2d 439
(Ark. 1998) both recognize that Guzek is a product of the nature of the
state's own construction of its death penalty statute, not of federal
constitutional law. The Majority Report on Senate Joint Resolution 44
indicates that enacting the amendment would not change the Guzek result
but would leave determinations of relevancy of victim impact evidence
to state determination. See S. Rep. No. 105-409, 105th Cong., 2d Sess.
29-30 (1998).
---------------------------------------------------------------------------
The second category for inquiry consists of cases where no
conviction was reversed but instead where the victim's statutory or
state constitutional right to a protection was ruled invalid because of
a defendant's federal constitutional right. I challenged amendment
supporters to produce cases in this category and received only one,
State ex rel. Romley v. Superior Court.\15\
---------------------------------------------------------------------------
\15\ 836 P.2d 445 (Ariz. Ct. App. 1992).
---------------------------------------------------------------------------
Romley fits the bill in one sense, but is beside the point in
another. It fits in that a state constitutional right of victims--here
Arizona's far-reaching right of victims to be free of discovery by the
defense--was rendered ineffectively by a federal constitutional
provision--the due process right to present a defense. However, the
case is inapposite in that the proposed federal Victims' Right
Amendment apparently would not affect the results, because in its
present formulation, the Amendment does not protect victims against
discovery or release of confidential information.\16\
---------------------------------------------------------------------------
\16\ The 1995 proposal by the National Victims Constitutional
Amendment Network contained a right of victims ``to be free from
unwarranted release of confidential information.'' William T. Pizzi &
Walter Perron, Crime Victims in German Courtrooms: A Comparative
Perspective on American Problems, 32 Stanford J. Int. L. 37, 39 (1996).
That provision did not make its way into S.J. Res. 3.
---------------------------------------------------------------------------
More significantly, Romley presents one of the most powerful
arguments against an aggressive form of the victims' rights movement,
which I label its ``Prosecutorial Benefit/Defendant Damage''
dimension.\17\ Romley appears to involve a classic case of a battering
relationship in which the female spouse uses violence against her
abusive spouse and is labeled, perhaps erroneously, the defendant. As
the case recites:
---------------------------------------------------------------------------
\17\ See Robert P. Mosteller, Victims' Rights and the Constitution:
Moving from Guaranteeing Participatory Rights to Benefiting the
Prosecution, 29 St. Mary's L.J. 1053 (1998). Perhaps the more
appropriate term is ``Defendant Damage'' rather than ``Prosecutorial
Benefit'' because the changes appear more directed at harming
defendants' interests than at necessarily benefiting the prosecution.
The defendant, not the victim, made the ``911'' call to the
police at the time of the alleged incident, asking for help. *
* * She requested help, according to the transcript of the
call, because her husband was beating her and threatening her
with a knife. When the police arrived at the home, they found
the husband (victim) bleeding from a stomach wound allegedly
inflicted by the wife (defendant) with a knife. A police report
reveals that the victim has been arrested three times for
assaulting the defendant and was convicted in Florida in 1989
for assaulting the victim.
The defendant alleges that the stabbing of her husband was not
an unjustifiable attack but an act of self-defense, The
defendant claims that she has been the victim of horrendous
emotional and physical abuse by her husband during their
marriage; that the victim is a mental patient with a multiple
personality disorder who, on the date of the alleged aggravated
assault, was manifesting one of his violent personalities, a
personality who was resisting ``integration'' during treatment
by his psychiatrist and a Christian pastor.\18\
---------------------------------------------------------------------------
\18\ 836 P.2d. at 450.
What the ``defendant'' sought but what the Arizona Victims' Rights
Amendment protected was the psychiatric records that could have aided
her in establishing the truth of her defense. As the Supreme Court of
Arizona stated in ruling, that federal due process right required
---------------------------------------------------------------------------
production of the records:
[The Victim's Bill of Rights] should not be a sword in the
hands of victims to thwart a defendant's ability to effectively
present a legitimate defense. Nor should the amendment be a
fortress behind which prosecutors may isolate themselves from
their constitutional duty to afford a criminal defendant a fair
trial.
Romley constitutes the only clear case where the federal
Constitution ``trumped'' a state victims' right provision. If enactment
of the proposed Victims' Rights Amendment were to change that result,
it would constitute a very strong argument against, rather than in
favor of, enactment. A domestic violence case like Romley shows the
danger of using the label of victims' rights to deny procedural
protections important to determining guilt. Here the identity of the
true victim is profoundly uncertain, and a provision is dangerous and
unwise that presumes conclusively that the person initially labeled as
the victim by the prosecution is entitled to protections that would
help alter outcomes.
The National Victims Constitutional Amendment Network (NVCAN)
asserts that the defendant's constitutional right to a fair trial has
been used to deny victims the right to be present.\19\ This result is
clearly possible under our present constitutional scheme. The right to
a fair trial guaranteed under the federal Constitution might be denied
by a victim's presence. Therefore, a judge would be correct in
excluding a victim/witness from some part of the trial where that
result would occur. How frequently does that conflict arise? I believe
Professor Cassell correctly noted several years ago that ``[s]uch an
argument seems unlikely in all but the most extreme circumstances.''
\20\
---------------------------------------------------------------------------
\19\ See NVCAN, supra note 3, at 9.
\20\ Paul G. Cassell, Balancing the Scales of Justice: The Case for
and the Effect of Utah's Victims' Rights Amendment, 1994 Utah L. Rev.
1373, 1393.
---------------------------------------------------------------------------
By allowing the exclusion of witnesses from the courtroom during
the testimony of others, sequestration rules aim to keep witnesses from
purposefully or unconsciously shaping their testimony to that of the
earlier witnesses. Such rules are of ancient and venerable origin.\21\
A jurisdiction may, however, decide that allowing victims who are also
witnesses to be present throughout the proceedings is of greater value
than the threat of tainting the victim/witness' testimony. To minimize
the degree to which victims will be excluded, the first step a state
should take is to make crystal clear that it considers the interests of
victims in attending all aspects of judicial proceedings to outweigh
the potential taint to the testimony of victims who are also witnesses.
This decision is most effectively accomplished through a positive
statement in the law governing the sequestration of witnesses,
typically codified in Rule 615 of the jurisdiction's rules of evidence,
that victims may not be excluded from the courtroom under the rule. A
number of states have taken this action and excepted victims as a class
from their sequestration rules.\22\
---------------------------------------------------------------------------
\21\ Wigmore traces the origin of the rule to the story of Susanna
in the Apocrypha. See 6 Wigmore, Evidence Sec. 1837 (Chadbourn rev.
1976). Two elders, who coveted Susanna but were rebuffed by her,
falsely accused her of adultery with a young man whom they claim
overpowered them and fled. Those assembled believed the accusation and
were ready to punish Susanna, but Daniel asked first to examine the two
accusers separately. They had claimed to have seen Susanna committing
adultery in the garden. As each came to be examined, Daniel asked where
in the garden had Susanna and the young man committed the adulterous
act. The first answered under one tree, but when the other was brought
in, he testified it happened under an entirely different tree. At that
point those assembled saw that the accusers had lied and rose against
them. Id.
\22\ See Ala. R. Evid. 615(4) (victim or representative of victim
who cannot attend exempt); Ariz. R. Evid. 615(4) (victim exempt); Ark.
R. Evid. 616 (adult victim and guardian of minor victim exempt); Or.
Rev. Stat. Sec. 40.385 (1995) (victim exempt); N.H. R. Evid. 615(1)
(victim exempt). Other states exempt victims but not through a blanket
provision. See Fla. Stat. Ann. Sec. 90.616(d) (West Supp. 1998)
(victim, victim's next of kin, parent or guardian of minor child
victim, of lawful representative exempt from exclusion ``unless, upon
motion, the court determines such person's presence to be
prejudicial''); Okla. Stat Ann. tit. 12 Sec. 2615(5) (West Supp. 1997-
98) (victim, representative, or parent exempt ``upon the motion of the
state to bar such exclusion, unless the court finds such exclusion to
be in the interest of justice''); Utah R. Evid. 615(1)(d) (exempting
adult victims of crime ``where the prosecutor agrees with the victim's
presence''). Still other states forbid exclusion of the victim/witness
after giving testimony. See La. Code Evid. art. 615(A)(4) Mich. Comp.
Laws Ann. Sec. 708.761; Wash. Rev. Code Ann. Sec. 7.69.030(11).
Presumably, enactment of the Victims' Rights Amendment would render
unconstitutional all the provisions except those that grant victims a
blanket exclusion from sequestration.
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As one should reasonably expect, these evidentiary provisions have
effectively allowed victims to sit in the courtroom throughout the
proceeding. These provisions work because sequestration is generally a
matter of statutory or common law.\23\ I have found one case, Martinez
v. State,\24\ that may qualify as limiting victim access allowed under
a specific rule based on constitutional principles, albeit state rather
than federal constitutional principles.\25\ In Martinez, the defendant
challenged the trial court's decision to permit the victim to remain in
the courtroom during opening statement. The state supreme court ruled
that, because the facts of the case were hotly disputed, the trial
judge should have excluded the victim from the opening statement, the
only part of the trial that the victim would have missed. However, the
court found that the error was harmless, and thus affirmed the
conviction.\26\
---------------------------------------------------------------------------
\23\ The opinion of the Arkansas Supreme Court in Stephens v.
State, 720 S.W.2d 301 (Ark. 1986) appears sensible and gives an example
of when reversal might be required under federal constitutional
principles.
Inasmuch as the rule permitting the exclusion of witnesses
originated with the legislature, we can conceive of no
reason why the rule cannot be modified in the same manner,
or by court rule if need be. We can suppose that there
would be circumstances when the victim's presence
throughout the trial could be seen as putting the fairness
of the trial in jeopardy, as occurred in Commonwealth v.
---------------------------------------------------------------------------
Lavelle, 277 Pa. Super. 518, 419 A.2d 1269 (1980).
In Lavelle, a failure to sequester witnesses upon defense request
resulted in a reversal. The record did not reveal whether the witnesses
had ever identified the defendant through pretrial identification
procedures. Nevertheless, these witnesses identified the defendant, who
was in the courtroom throughout, after they had heard police officers
testify that he was the perpetrator and had been photographed in the
bank where the crime occurred, and after some witnesses had heard other
bank tellers identity the defendant. See Lavelle, 419 A.2d 1269, 1273-
74 (1980). Those facts present the type of situation where our system
of laws should require the sequestration of victims who are
eyewitnesses. This is one of the rare cases where the defendant's
constitutional right to a fair trial could and should overcome alleged
victims' participatory rights interest in being present.
\24\ 664 So. 2d 1034 (Fla. 1996).
\25\ The court found the failure to sequester the witness during
opening statement violated the state rather than the federal
constitution, relying on Article 1, Sec. 16(b) of the Florida
Constitution, which gives victims the right to be present ``to the
extent that these rights do not interfere with the constitutional
rights of the accused.'' Id. at 1035. See also Gore v. State, 599 So.
2d 978, 985-86 (Fla. 1992).
\26\ See Martinez, 664 So. 2d at 1036.
---------------------------------------------------------------------------
The more typical result is reflected by the experience in Utah
where, as judged by reported opinions and anecdotal evidence at the
trial court level,\27\ the rule has been uniformly effective in
allowing victims to remain in the courtroom throughout the proceeding.
For example, in State v. Beltran-Felix,\28\ the Utah Court of Appeals
upheld its version of Rule 615 against constitutional challenge, even
when the victim appeared as the last witness in the state's case, which
is significant because the danger that sequestration rules seek to
avoid only grows the later the witness appears in the trial.\29\
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\27\ I can find no evidence that any trial court in Utah has
violated the rule and excluded a victim from the courtroom. I have
repeatedly asserted this claim to Professor Cassell, and he has given
no indication that he is aware a violation has occurred since the rule
became effective.
\28\ 922 P.2d 30 (Utah Ct. App. 1996).
\29\ See id. at 33-35. See also State v. Cosey, 873 P.2d 1177, 1181
(Utah Ct. App. 1994) (upholding victim's presence without reaching
constitutional issue); State v. Rangel, 866 P.2d 607, 610-12 (Utah Ct.
App. 1993) (same).
---------------------------------------------------------------------------
In the face of these substantial successes of statutory or rule
provisions, Professor Cassell and NVCAN declare, not victory, but
defe4at. Referring to Beltran-Felix, NVCAN notes that ``[a]lthough the
Court of Appeals agreed with the trial court that the victim properly
attended the trial in this case, it pointedly refused to hold clearly
that victims always have such rights.'' \30\ Professor Cassell
characterizes the non-absolute decision as
---------------------------------------------------------------------------
\30\ NVCAN, supra note 3, at 17. The reference is to Beltran-Felix,
supra, 922 P.2d at 35 n.6.
an intolerable burden on crime victims through in future cases
[who] * * * will now have to decide whether to exercise their
right to attend a trial at the expense of giving the defendant
an issue to raise on appeal and to possibly even overturn his
conviction. * * *
* * * The only way to clearly end this dilemma for crime
victims is through a federal constitutional amendment.\31\
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\31\ A Proposed Constitutional Amendment to Protect Victims of
Crime: Hearings on S.J. Res. 6 Before the Senate Comm. On the
Judiciary, 105th Cong. 115 (1997) (prepared statement of Paul G.
Cassell, Professor, University of Utah Law School). Since the Utah Rule
615 was modified to allow victims to be present, there is no reported
opinion in which a court found exclusion required under the
Constitution. Nevertheless, the possibility that such exclusion would
occur in the interest of a fair trial is in Professor Cassell's
judgment intolerable. On the other hand, Utah Rule 615 explicitly
authorizes the prosecutor to exclude the victim without providing
justification, which he finds ``a largely theoretical point'' because
he is ``unaware of any Utah prosecutor seeking to use this authority to
exclude a victim from attending a proceeding that a victim wished to
attend.'' Professor Cassell's 1998 Answers, supra note 13, at 3. In an
earlier article, he defended giving prosecutors the power to deny
victims the opportunity to be present ``because effective prosecution
is good for victims.'' Cassell, supra note 20, at 1393. Apparently,
neither type of exclusion has ever occurred under Utah's present rule.
I suggest that, with regard to the victim's interest of the victim in
being present at trial, the possible exclusion by the court to ensure a
fair trial should be no more intolerable than the possible exclusion by
the prosecutor to assist with a successful prosecution.
Professor Cassell also argues that Judge Matsch's treatment of
victims in the Oklahoma City Bombing Case demonstrates the need for a
constitutional amendment protecting victims.\32\ The record. however,
does not support the claim. While Judge Matsch's rulings imposed
burdens and some uncertainties on the victims in their efforts both to
attend the proceedings and to offer victim impact statements, three
points are significant. First, the case does not show that a clear
statutory entitlement to be present is ineffective. Federal Rule 615,
in effect at the time of the trial, called for exclusion of witnesses
upon motion of either party, and unlike a number of states made no
exception for victims.\33\ Although those opposing the ruling argued
that authority of the court to exclude victims under Rule 615 was
eliminated by 42 U.S.C. Sec. 10606(b)(4), that latter provision is
qualified. It permits victims to be present ``unless the court
determines that testimony by the victim would be materially affected if
the victim heard other testimony at trial.\34\ Second, the case
demonstrates the enormous political power of victims. Twice, while the
McVeigh case was pending, Congress passed legislation to aid victims to
attend and view the trial. The ability of victims to secure their
interests through popular political action could not be clearer.\35\
Finally, the court did not ultimately bar any victim who wanted to
attend the trial from doing so because they were subsequently to be a
witness, and victims who attended the trial were not prevented from
testifying as a result of their attendance. Although the court ruled
that attending the trial might result in exclusion if attending the
trial was found to affect testimony,\36\ upon holding a hearing, the
court ruled that the victims who witnessed the trial had not been
affected and could testify.\37\
---------------------------------------------------------------------------
\32\ See Professor Cassell's 1997 Statement, supra note 31, at 105-
13.
\33\ An amendment to Federal Rule 615 that took effect December 1,
1998 makes explicit that it is to yield to contrary statutory
authorization, but the change does not create a clear statutory right
for victims to attend trials. That amendment provides in exception to
sequestration for ``a person authorized by statute to be present.'' The
Committee Note to the proposed amendment states: ``The amendment is in
response to (1) the Victim's Rights and Restitution Act of 1990, 42
U.S.C. Sec. 10606, which guarantees, within certain limits, the right
of a crime victim to attend the trial, and (2) the Victim Rights
Clarification Act of 1997 (18 U.S.C. Sec. 3510)'' (emphasis added).
Given that the Senate Judiciary Committee is proposing to amend the
United States Constitution to grant an unfettered right of victims not
to be excluded, it is remarkable that the Committee did not propose to
grant that right in federal cases through rule. Could the reason that
this obvious action was not taken be that enacting the rule might have
proved effective and undercut the argument that an amendment was
necessary?
\34\ 42 U.S.C. Sec. 10606(b)(4). A panel of the Tenth Circuit
agreed that through this language, ``[i]n essence, the statute
acknowledges that the policies behind Rule 615 inherently limit the
victim's right to attend criminal proceedings.'' United States v.
McVeigh, 106 F.3d 325, 335 (10th Cir. 1996).
\35\ See Chris Casteel, Law Sets Bomb Victims, Families Free to
Testify, View Trials, Daily Oklahoman, Mar. 20, 1997, at 15; Jeffrey
Toobin, Victim Power, The New Yorker, Mar. 24, 1997 at 40, 40-43.
\36\ See United States McVeigh, No. 96-CR-69-M, 1997 WL 136343 at
*2-*3 (D. Colo. Mar. 25, 1997 (order amending order under Rule 615)
(reversing decision to exclude victim impact witnesses from trial but
in order not to delay trial for litigation of constitutional issues
raised by newly passed legislation, judge reserved for later individual
determination whether victim impact witnesses who saw trial were
prejudicially affected by it).
\37\ See Penny Owen & Nolan Clay, Judge Questions Victims, Allows
Four to Testify, Daily Oklahoman, June 5, 1997, at 12 (describing
judge's rulings to permit victims who witnessed trial to give impact
evidence).
---------------------------------------------------------------------------
Perhaps more importantly, the conduct of Judge Matsch and the
events of the Oklahoma City Bombing Trial simply do not support the
basic position argued by Cassell that victims were denied their proper
role. The bombing killed and injured hundreds, but it was also an act
of domestic terrorism against America. Direct victims had an interest
in participating, which was honored. As every observer of the trial
knows, their voice was heard clearly and powerfully both during the
trial of McVeigh and at his sentencing. For the country, the critical
issue was whether justice was done under extraordinarily difficult
circumstances of intense media scrutiny and great emotional tension.
Judge Matsch performed admirably, if not perfectly, as be balanced his
duties toward all interests, including society, his judicial duty to
enforce the laws and the Constitution, and his prudential
responsibility to avoid needless error.\38\ He gave us all an
expeditious, orderly, and fair trial. To cite this trial as a failure
of justice for victims or as a clear illustration of the mistreatment
of victims is both objectively unreasonable and, I believe, contrary to
the experience of the American public, who shared with more direct
victims and survivors a personal stake in the trial, its outcome, and
its fairness.
---------------------------------------------------------------------------
\38\ Professor Cassell unfairly criticizes Judge Matsch for failing
to rule immediately that the Victims Rights Clarification Act, of 1997
was constitutional, requiring victims to ``make a painful decision.''
Cassell, 1997 Statement supra note 31, at 111. A fair examination of
the record shows that Matsch was reasonably trying to do justice and
succeeded. See United States McVeigh, No. 96-CR-68-M, 1997 WL 136343
(D. Colo. Mar. 25, 1997).
As stated by Judge Matsch in his order, applying the new
legislation to the McVeigh trial would have raised a novel but
substantial constitutional issue, not from the Bill of Rights, but
regarding separation of powers. The issue would have been raised by
applying a new act of Congress to a specific on-going criminal case,
Judge Match noting that this constitutional argument was raised in the
House of Representatives debate. See id. at *2. See also 143 Cong. Rec.
H1052 (statement of Rep. Delahunt). The legislation was signed on March
19, 1997. See United States McVeigh, No. 96-CR-68-M, 1997 WL 136343 at
*2 (D. Colo. Mar. 25, 1997). In his order issued less than a week later
on March 25, 1997, Matsch noted that in another six days later, the
``trial of Timothy McVeigh is scheduled to begin,'' and ``[a] debate
now on the constitutionality of this new legislation would result in a
delay of that trial.'' Id. at *3. He modified his order, lifting his
ban on attending trial by victims who were expected to be witnesses in
the sentencing phase. He then delayed until later resolution through a
voir dire process whether those who chose to attend the trial had their
testimony relevant to sentencing affected by witnessing it. Id. If not,
they would have been able to testify even before the new law was
passed. Under that circumstance, the new law would be irrelevant, and
he could avoid the constitutional issue entirely. Id.
At the end of the guilt phase of the trial, Judge Matsch held a
voir dire, and as noted earlier, ruled that no witness' testimony had
been affected, eliminating any further issue as to their testimony. He
thus avoided delay, which be said in his order was in the ``public
interest,'' id., and avoided entirely a constitutional issue from the
case. He did the tough work of being a fair and reasonable judge.
---------------------------------------------------------------------------
If the Oklahoma City Bombing Case requires enactment of a federal
constitutional amendment, that is because its proponents find the mere
existence of uncertainty as to their role intolerable. Neither such
uncertainty nor putting victims at some minor risk of creating an
appellate issue for defendants with regard to sequestration provides a
sufficient justification for a federal constitutional provision.
The reasonable interpretation of constitutional principles and of
the caselaw is that in extreme factual situations, the due process
right to a fair trial may require exclusion of witnesses. Those cases
are rare and reasonably easy to recognize, but admittedly some
uncertainty will remain in the few cases that approach the
constitutional requirement of exclusion. However, the uncertainty is
hardly intolerable given the limited period of time a victim needs to
be excluded if sensibly called as the prosecution's first witness and
given the importance of guaranteeing a fair trial to the defendant
where the constitutional claim has arguable merit.
I want to amplify my position on the constitutional basis for
sequestration, which goes to the lack of wisdom in granting victims a
blanket right to be present when they could tailor their testimony to
that of others who testify. Indeed, a byproduct of eliminating the
possibility of sequestration may be to eliminate other checks on
contrived testimony. In this discussion, I will concentrate on a group
of cases where defendants are often innocent.
The mere fact that multiple alleged victims are also eyewitnesses
does not mean that failure to sequester the victims/witnesses would be
a per se constitutional violation of either the Sixth Amendment right
to effective cross-examination \39\ or the due process right to a fair
trial. With respect to the right to effective cross-examination, the
Supreme Court, I believe, would be very unlikely to declare this one
imperfection in the right to cross-examine to be automatically
constitutionally deficient. Constitutional violations of fair trial
rights are understandably rather difficult to show and depend upon the
precise circumstances of the case, including the impact of the failure
to sequester on testimony or whether other avenues of defense attack
and proof are available. Only in the atypical case and in context will
failure to sequester multiple alleged victims/eyewitnesses result in a
constitutional violation.
---------------------------------------------------------------------------
\39\ See Robert P. Mosteller, Victims' Rights and the United States
Constitution: An Effort to Recast the Battle in Criminal Litigation, 85
Geo. L. J. 1691, 1699-1701 (1997).
---------------------------------------------------------------------------
In terms of the innocent defendant, why is a rule allowing alleged
victims/eyewitnesses to remain in the courtroom a bad policy and why is
it particularly a bad constitutional rule? I want to concentrate on a
very troubling class of cases in American criminal law where the
identity of the true victim is sometimes ambiguous. That is the class
of cases where either the police used excessive force toward a suspect,
often the member of a minority group, or the police were the victims of
an assault by that suspect and rightfully defended themselves with
force. Two cases--Rodney King in Los Angeles in 1991 \40\ and Abner
Louima in New York City in 1997 \41\--provide excellent examples to
examine. In both cases, we know that the police were the perpetrators,
not the victims. In King's case, we know the truth because a bystander
made a videotape of the beating; in Louima's case, our knowledge came
from his punctured intestine, which permitted no pro-police
explanation. However, in both cases, the true victim was on his way to
being the defendant and the police officers the victims before the
irrefutable proof got in the way.\42\
---------------------------------------------------------------------------
\40\ See, e.g., Tracy Wood & Faye Fiore, Beating Victim Says He
Obeyed Police, L.A. Times, Mar. 7, 1991, at A1.
\41\ See Blaine Harden, Angry Giuliani Orders Shake-up at Police
Station; Alleged Assault on Immigrant ``Reprehensible,'' Mayor Says,
Wash. Post, Aug. 15, 1997, at A.3.
\42\ See Wood & Fiore, supra note 40; Harden, supra note 41.
---------------------------------------------------------------------------
Imagine the alternative scenario under which the proof of police
brutality did not surface, and Officers Koon and Powell and Louima's
attackers would be cast as victims/witnesses. Further, recognize that
there must be a substantial number of cases like King's and Louima's
where fortuity or physical evidence does not prevent the police from
covering their excessive violence with a charge against the true
victim. These were not isolated incidents \43\ or an example of a
notorious case warping analysis. The literature in the field is replete
with the seriousness of this problem of police abuse being covered by
charges of violence by the suspect.\44\
---------------------------------------------------------------------------
\43\ See Robert P. Mosteller, Moderating Investigative Lies by
Disclosure and Documentation, 76 Or. L. Rev. 833, 945-46 (1997).
\44\ See, e.g., Paul Chevigny, Police Power: Police Abuses in New
York City 51-62 (1969); Charles G. Oglegree, Jr., et al., Beyond the
Rodney King Story 42-44 (1995).
---------------------------------------------------------------------------
Now consider the impact of a rule allowing all alleged victims/
witnesses to be present during the testimony of all other alleged
victims/witnesses and the further impact of a victims' rights
constitutional amendment. As noted above, that there are multiple
alleged victims/eyewitnesses does not mean that a rule of evidence or
statute that guarantees victims' presence violates the Constitution,
and the fact that the defendant is innocent has no automatic impact on
this analysis. In providing procedural protection, the Constitution is
not a precise instrument. Thus, if a domestic rule of evidence were to
permit all alleged victims/witnesses to remain in the courtroom, the
rule would typically pass constitutional muster, and in cases of police
brutality, it would help the perpetrators of violence extend the
injustice by convicting the true victim.
The outcome under the proposed constitutional amendment is worse,
however. Even the rare cases where under our existing Constitution
sequestration would have been required, the new provision would trump
justice. Officers Koon and Powell would have the constitutional right
to be present if preliminarily labeled the victims of Rodney King's
violence regardless of whether other ways to ensure effective cross-
examination and overall fairness existed. Contrived joint testimony may
be even more effective if the case is prosecuted in a state where the
proposed federal Victims' Rights Amendment has been supplemented with
an aggressive state amendment designed to inhibit defense efforts.
Let us examine Arizona. Several years after a victims' rights
amendment was approved there, the legislature attempted by statute
interpreting the amendment to exclude police officers from the
discovery protection provision discussed earlier in connection with the
Romley case. The statute allowed discovery interviews ``if the act that
would have made him a victim occurs while the peace officer is acting
in the scope of his official duties.'' \45\ However, that legislation
was ruled unconstitutional because it was inconsistent with the plain
language of the amendment.\46\ Thus, in Arizona, a police officer
cannot be forced to provide, an interview.\47\ Moreover, if the defense
attorney comments on the victim's refusal to be interviewed, the trial
judge is required to instruct the jury that the victim had the right of
refusal under the state constitution.\48\ The state supreme court also
ruled that, absent a showing that the refusal was done ``for or a
reason or in a manner bearing on [the witness'] credibility,'' \49\ the
trial court could properly cut off cross-examination about the refusal
to be interviewed because the witness would be presumed to have acted
solely because he or she had a constitutional right to do so.\50\
---------------------------------------------------------------------------
\45\ Ariz. Rev. Stat. Ann, Sec. 13-4433(G) (West Supp. 1998)
(formerly subsection (F)).
\46\ See State v. Roscoe, 912 P.2d 1297 (Ariz. 1996). This is an
example of a state victims' rights amendment producing unintended
consequences.
\47\ See id. at 1302-03.
\48\ See Ariz. Rev. Stat. Ann. Sec. 13-4433(F) (West Supp. 1998)
(formerly subsection (E)).
\49\ State v. Taggart, 942 P.2d 1159, 1163 (Ariz. 1997).
\50\ See id. at 1161-63.
---------------------------------------------------------------------------
In the absence of a federal victims' rights amendment that gave
alleged victims the constitutional right to be present at trial, the
combination of conditions in an Arizona police brutality case might
mean that sequestration was constitutionally required to assure a fair
trial. If the proposed federal victims' rights amendment is adopted,
police officers who use excessive force and cover that violence with
charges that they were assaulted will have an important new weapon in
their arsenal of deception. The federal victims' rights amendment and
related state constitutional provisions, if enacted, could make the
dangers even greater in that some presently available alternative
methods to reveal contrived testimony might disappear. Thus, the
passage of the amendment would increase the chances that sequestration
was required for a fair trial and at the same time mean that as to both
true and contrived victims sequestration could no longer be ordered
under the Constitution.
NVCAN also claims that claims that the defendant's right to be free
from cruel and unusual punishment has been used to deny victims the
right to be heard at sentencing, and that the criminal's right to equal
protection has been used to deny victims the rights to be heard at
parole hearings.\51\ However, the argument that the Eighth Amendment's
cruel and unusual punishment provision forbids victim impact evidence
is largely untenable after Payne v. Tennessee,\52\ which held that
victim impact evidence did not violate this constitutional provision.
---------------------------------------------------------------------------
\51\ NVCAN, supra note 3, at 9.
\52\ 501 U.S. 808 (1991).
---------------------------------------------------------------------------
The Court in Payne did not decide whether ``victim's family members
characterizations and opinions about the crime, the defendant, and the
appropriate sentence'' were admissible because those questions were not
presented.\53\ Thus, Payne did not resolve whether a victim's family
members could express their opinion regarding the proper
punishment.\54\ Similarly, the Court refused to eliminate limitations
on the admissibility of victim impact evidence based, not on Eighth
Amendment principles, but on relevancy. The relevancy of victim impact
evidence depends on the structure of the jurisdiction's death penalty
statute and the role defined for impact evidence in it,\55\ and as a
result, most relevancy objections likely could be eliminated by
statutory modifications without any amendment.
---------------------------------------------------------------------------
\53\ Id. at 830 n.2.
\54\ In Booth v. Maryland, 482 U.S. 496 (1987), the earlier Supreme
Court case that Payne largely overruled, the Court had held opinions of
the proper sentence by victim's family members inadmissible. Since that
issue was not addressed in Payne, Booth's holding on this point remains
technically valid. Nevertheless, the Oklahoma Court of Criminal Appeals
has found that such evidence is admissible and has determined that
Booth was implicitly overruled on this point. See Ledbetter v. State,
933 P.2d 880, 890-91 (Okla. Crim. App. 1997).
\55\ See State v. Moore, 827 P.2d 1073 (Or. 1996).
---------------------------------------------------------------------------
Enacting the proposed constitutional amendment and giving victims
the right ``to be heard * * * at all proceedings to determine * * * a
sentence'' could be read as changing these relevancy rules, and could
specifically be seen as overriding determinations in some jurisdictions
that family members of murder victims are forbidden from expressing
their opinion that the death penalty should not be imposed.\56\
However, the drafters of Senate Joint Resolution 44 claimed that this
constitutional right does not affect the relevance issue. Indeed, these
drafters claim that the constitutional right to be heard at sentencing
does not affect the relevance issue. The Majority Report asserts that
while the victim may not be prevented from providing a statement when
the sentence is mandatory and therefore the statement is irrelevant to
the outcome,\57\ the federal and state governments continue to have the
ability to exclude such evidence by setting limits on what is
considered relevant impact testimony, including the expression of an
opinion on the ``desirability or undesirability of a capital
sentence.'' \58\ Thus, if after Payne, victims' rights advocates
continued to worry about the scope of permissible impact evidence and
the possibility that such evidence could be ``trumped'' by state law,
much the same concern would remain after enactment of Senate Joint
Resolution 3. In capital cases, the victims' right to be heard would
continue to be constrained by state and federal law; more generally,
the right to be heard at sentencing would remain subject to legislative
relevancy determinations except where, under traditional terminology,
such testimony was irrelevant to the outcome of the sentencing
proceedings in that the sentence was mandatory and such statements
could have no impact on it.\59\
---------------------------------------------------------------------------
\56\ See Robison v. Maynard, 943 F.2d 1216 (10th Cir. 1991)
(holding such evidence not proper mitigating evidence and not required
to be admitted under Court's ruling in Payne).
\57\ See Majority Report on S.J. Res. 44, S. Rep. No. 105-409,
105th Cong., 2d Sess. 28 (1998).
\58\ Id. at 28-29 (citing specifically Robison v. Maynard).
\59\ Marsha Kight, whose child was killed in the Oklahoma City
bombing, is a well known advocate for victims' rights and the
constitutional amendment. She testified at the 1997 Senate hearings on
the amendment that as a death penalty opponent she supported a
constitutional amendment so that she could give victim impact evidence.
In her case, the statement would have included a statement regarding
that opposition, and she had been told by the prosecution team she
could not give under existing law. See A Proposed Constitutional
Amendment to Protect Victims of Crime: Hearings on S.J. Res. 6 Before
the Senate Comm. On the Judiciary, 105th Cong. 71-72 (1997) (testimony
of Marsha A. Kight). According to the Majority Report, after the
amendment, Ms. Kight could not be prevented from testifying as long as
she was satisfied not to express her opinion about the death penalty
and thereby to have her statement used in support of the prosecutor's
effort to secure the death penalty. However, any statement about her
opposition to capital punishment would be just as inadmissible after
the amendment as before, see Majority Report on S.J. Res. 44, S. Rep.
No. 105-409, 105th Cong., 2d Sess. 28-29 (1998), and the government's
decision to use victim impact evidence to support its goal of securing
a death penalty would have continued to bar her from testifying. To be
admissible, the testimony must be authorized by statute, which likely
would have permitted admissibility under current law without a
constitutional amendment. The predominant concern appears to be
insuring that the legislature can protect prosecutorial interests and
only to guarantee full ``Participatory Rights'' to be heard at
sentencing where irrelevant to the legislatively determined result.
---------------------------------------------------------------------------
Finally, NVCAN's claim that equal protection had been used to
prevent victims from being heard at parole hearings was correct for a
time under one federal district court opinion. However, that opinion
was soon vacated. In Johnson v. Texas Department of Criminal
Justice,\60\ a district court judge held that victim protest letters
that were kept from the inmate and used to deny parole violated equal
protection. As is typical for trial court opinions unfavorable to
victims' rights, the case was reversed.\61\
---------------------------------------------------------------------------
\60\ 910 F. Supp. 1208, 1226-29 (W.D. Tex. 1995).
\61\ See Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997). For
other cases following this pattern, see, e.g., State v. Taggart, 925
P.2d 710 (Ariz. Ct. App. 1996) (failure to permit cross-examination
about victim's refusal to be interviewed pretrial as allowed by
provision of the state's victim's rights amendment violated defendant's
Confrontation Clause rights but was harmless), rev'd, State v. Riggs,
942 P.2d 1159, 1165-66 (Ariz. 1997) (en banc) (no violation of
confrontation right); State v. Muhammad, 678 A.2d 164 (N.J. 1996)
(reversing trial court ruling finding victim impact evidence statute
unconstitutional).
---------------------------------------------------------------------------
In sum, a body of caselaw documenting significant ``trumping'' of
victims' rights by defendants and court officials using the federal
Constitution simply does not exist. The best supporters of the proposed
amendment can do is to suggest arguments why these cases cannot be
found. However, the extraordinary step of amending the United States
Constitution should require real documentation rather than conjecture,
unfounded assertions, and outdated claims. When challenged to produce
the cases of defendants' rights running rough shod over victims'
rights, the Amendment's supporters have come up empty. When the
question is whether to amend the United States Constitution, evidence
must be produced, not just speculation.
c. the (intended) damage to defendants' rights from this
unnecessary amendment
One consequence of using a constitutional amendment rather than
legislation to guarantee victims' rights is that defendants'
constitutional rights can be undermined by enactment of an amendment.
If this is the intended effect of the proposed Victims' Rights
Amendment, then I must concede that the constitutional form is
necessary. However, I hope that if this purpose is recognized, it will
be rejected as substantively illegitimate.
I have already discussed at some length how the proposed amendment
may impact witness sequestration issues, by affecting where the balance
is drawn between defendants' fair trial rights and victims' presence.
In addition, the Amendment would grant several more rights to victims
that would alter present protections for the defendant. First, the
proposed amendment contains the right ``to consideration of the
interest of the victim that any trial be free from unreasonable
delay.'' Second, the Amendment establishes the right ``to consideration
of safety of the victim in determining any conditional release from
custody relating to the crime.'' These provisions would almost
inevitably threaten fairness to some defendants.
Although the defendant has the right to a speedy trial, he or she
may waive that right explicitly or implicitly and seek a continuance to
provide more time to prepare a defense or to allow the effects of
pretrial publicity to dissipate. A victim's right to consideration of
his or her interest in a speedy trial would, in some cases, alter a
judge's treatment of the defendant's request for a delay. That denial
may threaten the defendant's interest in a fair trial.\62\ Similarly, a
victim's right to consideration of safety in the decision to grant
conditional release would alter the results in some number of bail
decisions resulting in denial of release.\63\
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\62\ Professors Tribe and Cassell argue that the defendant's
constitutional rights and victim's rights in the proposed amendment
would coexist without conflict, using the claim that the two rights
relating to a speedy trial ``[b]y definition * * * could not collide,
since they are both designed to bring matters to a close within a
reasonable time.'' Tribe & Cassell, supra note 2, at B5. The argument
is a strawman. The conflict is not between defendants' Sixth Amendment
right to a speedy trial and the similar guarantee in the proposed
amendment, but is rather between the defendant's fair trial rights when
they require delay and the proposed victim's right to a speedy
resolution.
\63\ Denying release to those charged with crime may appear
appealing to reduce additional victimization by the accused while
awaiting trial. However, clearly not all those accused of crime are
guilty. Scholars have noted the consistent tendency of more restrictive
release conditions to result in disproportionate denial of release to
members of minority groups. See Coramae Richey Mann, Unequal Justice: A
Question of Color 167-71 (1993). Also, pretrial confinement may
interfere with the defendant's ability to help develop a successful
defense and thereby increases the prospects of conviction of the
innocent.
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These provisions giving victims' interests consideration in a
``speedy trial'' and in denying bail to defendants constitute changes
in a balance of advantage that affect the victim, but also affect
substantial interests of the defendant and may even alter the outcomes
of cases. If these specific changes are to be made, they first should
undergo rigorous debate an their merits, and should not slide in under
the cover of a campaign largely devoted to giving victims' rights to
notice and to participate in criminal proceedings.
However, as I have noted in an earlier article, the most
significant substantive impact of the proposed amendment in denigrating
defendants' rights may be in the reconceptualizing of criminal trials
to be between a defendant and a victim, each with constitutional
entitlements.\64\ At a recent symposium on victims' rights, probably
the most significant point was the acknowledgment by Professor William
Pizzi, who supports the proposed amendment, that he finds such a
reconceptualization quite possible. He expressed the hope that
enactment of the Amendment would add a new weight to the balance and
cause courts to eliminate the exclusionary rule for some Fourth
Amendment violations:
---------------------------------------------------------------------------
\64\ See Mosteller, supra note 39, at 1710-11 (noting that the
ancient statement of preference that it is better that ten guilty
defendants erroneously escape punishment than that one innocent
defendant be punished is more difficult to maintain if the state also
recognizes the constitutional rights of victims against the state).
[W]here the crime is a serious one and the police have made a
good faith mistake or have acted at most carelessly, is it fair
to the victim to suppress evidence of the crime? A Victims'
Rights Amendment suggests that victims of crimes of violence
have an interest in a fair trial and it may cause the Court to
rethink the exclusionary rule.\65\
---------------------------------------------------------------------------
\65\ William T. Pizzi, Rethinking Our System 9 (Rough draft, Sept.
3, 1998) (on file with Utah Law Review). This view was reiterated
during the victims' right symposium at the University of Utah.
Professor Pizzi has reoriented his paper for final publication, but he
authorized me to quote and cite his initial draft.
As argued in earlier sections, the proposed amendment is
unnecessary to accomplish what I consider its legitimate aims with
respect to ensuring participatory rights of victims. It is, however,
both specifically and generally dangerous in allowing substantive harm
to important procedural protections presently accorded to defendants.
d. giving victims equality with defendants in the constitution
The Amendment's proponents often claim that since defendants are
protected in the Constitution, victims should have rights guaranteed
there as well.\66\ Sometimes the Amendment's supporters highlight the
apparent imbalance by noting that fifteen rights are enumerated in the
Constitution to protect the accused and none specifically protect
victims.\67\
---------------------------------------------------------------------------
\66\ See Cassell & Twist, supra note 4, at A15.
\67\ See, e.g., Dianne Feinstein, Senate Judiciary Committee Passes
Kyl-Feinstein Crime Victims' Rights Constitutional Amendment, Press
Release, July 7, 1998, available in Westlaw, Allnews file.
---------------------------------------------------------------------------
The rhetorical argument is: flow could we possibly have federal
constitutional provisions that protect those charged with crimes--the
vast majority of whom are guilty and many of whom have committed
horrible offenses--and not give similar protection to their innocent
victims? This is a superficially attractive argument that engenders
great popular political appeal. However, this claim mistakes the
fundamental reason for embedding a principle in a constitutional
amendment. Indeed, the enormous political popularity of the argument
almost by itself refutes its validity as an argument for amending the
Constitution.
The major purpose of a constitutional amendment of the type
considered here is to protect the despised, the politically weak, and
insular minorities against the whims of the political majority.\68\
Victims and victims' rights do not fall into any of these categories;
they are extremely popular politically. That is not the case with
criminal defendants. If the protections and the advantages afforded
criminal defendants in the Constitution are eliminated or ``equalized''
by the Victims' Rights Amendment, there will be no political majority
passing legislation and appropriating money to provide offsetting
protections for defendants. Without the proposed amendment, the
political majority can and will protect victims. Thus, the
``imbalance'' in the Constitution must remain if anything approaching a
balance is to be achieved at the end of the process, after the
political forces have had their impact.
---------------------------------------------------------------------------
\68\ Cf. United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938).
---------------------------------------------------------------------------
e. conclusion
The above analysis demonstrates that the proposed Victims' Rights
Amendment is not necessary to achieve the goals of its advocates. My
position is far from radical. Senator Hatch, who nevertheless last year
supported the proposed Amendment, has stated a similar view:
In conclusion, I am strongly in favor of victims' rights, and
believe a Federal constitutional amendment to be an appropriate
national response. ``Appropriate,'' however, does not, in my
view mean ``necessary.'' I believe that many of the objectives
of the proposed amendment could in fact be accomplished through
a Federal statutes, State statutes, or State constitutional
amendments. Indeed, our experience with State constitutional
amendments is comparatively young. It may well be better to
allow the jurisprudence to develop on these before we take the
momentous step of amending the Federal Constitution.
Finally, I note that a statutory approach would carry less
peril of upsetting established State constitutional amendments
now taking root to guarantee the rights of crime victims. A
statute would also be more readily amendable should experience
dictate that changes are needed, and, of course would not
preclude the later adoption of a constitutional amendment if
the statute indeed proved insufficient or unable to protect the
rights of victims. * * * \69\
---------------------------------------------------------------------------
\69\ Additional Views of Senator Hatch, S. Rep. No. 105-409, 105th
Cong., 2d Sess. 46 (1998).
Under this set of affairs, the Constitution should not be amended.
__________
Diana University,
School of Law Bloomington,
Bloomington, Indiana, March 23, 1999.
The Hon. Patrick J. Leahy,
Ranking Minority Member, Committee on the Judiciary, U.S. Senate
Washington, DC.
Dear Senator Leahy: I have recently completed a new article on the
problems presented by the proposed crime victim's amendment to the
Constitution of the United States. The article, Revisiting Victim's
Rights, will appear in the Utah Law Review's June, 1999 issue.
I understand that the Committee on the Judiciary is holding
hearings on the amendment on March 24, 1999. I am sending you a short
summary of my arguments concerning the role of such an amendment under
our Constitution, with a request that the summary be placed in the
record of the Hearings as a statement in opposition to the amendment.
Thank you for your consideration and all your work in opposing the
proposed amendment.
Sincerely,
Lynne Henderson,
Professor of Law.
______
Summary of Arguments Contained in ``Revisiting Victim's Rights'' by
Lynne Henderson Forthcoming, 1999 Utah Law Review
The proposed victim's rights amendment to the Constitution of the
United States has undergone numerous revisions since it was first
introduced, on such continuously shifting ground, it is difficult to
criticize any one provision, because those provisions keep changing.
More general criticisms, however, are possible. Indeed, any victim's
rights amendment holds grave implications for constitutional law,
practice, and crime victims themselves. Urging caution and painting to
flaws does not indicate lack of care for crime victims; rather, it is
essential before we embrace such a major change in our fundamental
charter of government.
1. our constitutional system protects individuals against government
intrusions; government aid to individuals is left to the political
process
Constitutional rights for individuals are primarily those that
limit the states power to interfere with their liberty. The Bill of
Rights and the Fourteenth Amendment contain restraints on the state's
power over individuals, with few exceptions.\1\ Our history and
traditions, as well as Supreme Court decisions, have seldom recognized
positive entitlements from the government. On those rare occasions
where a constitutional right obliges the government to do something, it
is seen as necessary to preserving a negative right against government
or to ensure fairness in deprivation of statutory or constitutional
rights. Thus, the Sixth Amendment's right to counsel provision requires
government to provide counsel for indigent defendants; due process
requires a hearing before an individual is denied a liberty or property
interest such as welfare.
---------------------------------------------------------------------------
\1\ The Seventh Amendment right to a jury trial in civil suits
could be said to embody a positive claim on the state's resources.
---------------------------------------------------------------------------
The proposed victim's rights amendment would be unique in requiring
the government to involve private parties in court proceedings that do
not involve the government's attempt to deprive these parties of a
life, liberty or property interest, perhaps with the exception of an
interest in restitution. In the instance of victims who are not
witnesses, including the survivors of a homicide victim, the government
may make no demands whatsoever on these victims, yet the victims would
have a right to participate in all proceedings related to custody of
the offender.
2. victims of crime are neither politically powerless nor in need of
protection from majority tyranny
If a majority in our democracy support a policy or approach, there
is nothing to prevent it from acting on that preference beyond certain
constitutional limitations. Thus, a major reason for protecting
individual rights in our constitutional system is to ensure political
participation and to prevent abuses of individuals by majorities who
disagree with or are prejudiced against them.
The facts that a majority of states have victim's rights
amendments, that all states have legislation responding to victim
concerns, and that the political process is receptive to victims are
strong indications that victims have been extremely influential in the
political process. The fact that a majority supports some kind of
rights for victims means that those rights can he achieved through the
political process, including legislation and election of prosecutors,
judges, and legislators responsive to victims' concerns. Indeed, no one
can argue with a straight face that legislators and government agencies
have been deaf to victims, concerns about defining crimes, determining
sentences, limiting probation and parole, or providing notice of the
release of offenders. Victim access to the process has hardly been
thwarted by a hostile majority.
Victims of crime are hardly an insular minority, nor are they the
victims of prejudice and hostility. Rather, it is those charged with or
convicted of crimes who are disliked and denied access to the political
process. They have no organized lobbying group, felons in a number of
states have no right to vote, and so on. Special treatment of victims
under the constitution is not necessary to insure that their interests
be preserved or recognized.
3. the constitution gives the states and federal government the power
to enact and enforce criminal law, and a victims rights amendment would
abrogate that power
Although Prof. Tribe has stated that ``The ultimate concern of the
criminal justice system ought to be with the victim,'' neither our
history or our practice would support such a claim. The concern for
negative liberties against the government contained in the Constitution
stems in large part from the government's monopoly on the use of force
and the criminal law. Crimes are legally defined as offenses against
the community and the state, even though individuals are affected. The
state and community are negatively affected by crime, and the criminal
law is the community's response. The community has a strong interest in
deterring and punishing crime apart from any individual victim's
interests.
No serious scholar would advocate a return to reliance on private
prosecutions and private enforcement of the criminal law for a number
of reasons. The values of uniformity, certainty, coherence, and equal
application of the law require that it not be enforced in an ad hoc
manner, depending on the preferences of individual victims. In criminal
cases, the state bears the burden of investigating, prosecuting,
punishing, and executing offenders; individual victims do not bear
these costs beyond paying their taxes, and perhaps incurring expenses
for trials. Yet the amendment would give victims special claims on
these resources.
4. the amendment would lead to confusion and increased litigation about
the continuing existence of rights for defendants
Sponsors of the amendment like to point out all the provisions of
the Constitution that give rights to the accused and contrast these
provisions with the absence of provisions for victims. Again, many of
the provisions of the Fourth, Fifth, Sixth, and Eighth Amendments are
based on concerns about the abuse of state power over individuals.
Advocates of the victim's rights amendment are quite clear in their
opposition to certain Supreme Court rulings aimed at preserving Fourth,
Fifth, Sixth, Eighth Amendment rights.
A victim's rights amendment at a minimum would create conflicts
between the rights of defendants and the rights of individual victims.
Courts would be faced with ``balancing'' in a number of conflicting
rights cases. For example, courts would have to balance a defendant's
right to confrontation against a victim's right to make a statement at
a custody hearing. ``Balancing'' rights has been widely criticized for
the ad hoc nature of such decisions and this approach certainly would
leave important decisions to judges that might better be made by the
elected branches of state and federal government.
S.R. 44 states that a victim's rights may only be abridged if there
is a ``compelling'' reason. Under the compelling interest rationale,
courts could he expected to decide that victim's rights ``trump''
defendant's rights in all cases. At a minimum, the compelling interest
language puts a thumb on the scales weighing in favor of victims at the
expense of important Bill of Rights provisions that have protected us
all against government abuses for over 200 years.
5. the argument that crime victims should be treated with dignity and
respect does not distinguish crime victims from other victims of
private or public wrongdoing
It should go without saying that all persons who are involved in
legal processes should be treated with ``equal dignity and respect.''
Thus far, victims of racism and private prejudice have no cons--
titutional claims against private parties, despite the injurious
effects of these practices. Individuals harmed by war, wrongful
internment, or government malfeasance have no constitutional rights
against the government in most instances. Providing a special amendment
for one group of citizens and privileging them above those who have
been injured by another's negligence or by the government itself is not
justifiable under the theory of equal concern and respect.
6. the amendment could apply to large numbers of people with plausible
claims of victimization while simultaneously excluding many victims
As self-evident as ``victim of crime'' or ``victim of violent
crime'' may initially appear, the status of those claiming to be
victims is not that easy to establish. The amendment may create
incentives for some to make victim-claims that are plausible and it
will be difficult to draw lines.
If harm or trauma are the definitive concerns of victim groups,
then pressures on legislatures to include a number of people as victims
for the purposes of the amendment will grow. The expansion of victim
impact statements in death penalty cases to include family members and
friends ought to make it clear that lines are not easily drawn.
In the case of violent crimes such as robbery, rape, assault with a
deadly weapon, as well as homicide, issues of ``co-victimization''
arise.\2\ Family, friends, and coworkers can suffer trauma from
violence against someone they know; moreover, violent crime can cause
trauma throughout a community. Witnesses to terrible crimes suffer
trauma. Children growing up in violent homes suffer trauma. All these
groups--and more--could make claims to be victims entitled to rights.
---------------------------------------------------------------------------
\2\ The term is from a book by an advocate for the amendment,
Deborah Spungen. See Spungen, Homicide: The Hidden Victims 9 (1998).
---------------------------------------------------------------------------
This line blur further when victims are also offenders: Robert
Mosteller's article in the Georgetown Law Journal, points out the
difficulties of sorting through who is a victim at a given time, using
the Rodney King case as an example. King was beaten brutally, but he
also was a ``criminal''--he evaded the police, he was driving
recklessly, etc. He tried to defend himself, so he was guilty of
assault. King--and Officers Koon and Powell at least--could claim
rights against each other under this amendment. How would this be
resolved? Other examples include the battered woman or abused child who
strikes back at the person who has assaulted her. A batterer would be
able to obtain important information and to invoke the criminal process
to maintain control over his partner or child under this amendment.
Under current versions, the amendment appears not to give crime
victims rights until there is an arrest. Do these rights remain if the
prosecution decides it cannot or does not want to proceed?
Determining if and when someone qualifies as a ``victim'' presents
other difficulties: Although several proponents of the amendment opine
that rape victims will be better off because they will have ``rights',
there is no grounds to believe this claim: What it takes to be a
``real'' rape victim is affected not at all by this amendment. Given
the skepticism that exists about the veracity of rape charges even
today, a woman may not be able to persuade authorities that she is
indeed a victim, much less see the case got to the point where charges
are filed and her ``victim's rights'' attach.
7. the argument that the process ``traumatizer'' victims cannot justify
this amendment
One of the humane impulses behind this amendment is to limit trauma
to victims and to create a ``therapeutic'' vision of the criminal
process, to spare victims such trauma. It does seem ``only fair'' that
the victim be allowed to relate the trauma to officials. But when and
under what conditions a victim should speak is not at all clear. The
amendment apparently gives some opportunity to say something at various
stages of the process, but it does not provide for an unchallenged,
unexamined, or empathic hearing. Rather, it appears that the amendment
will necessarily be constrained by what is legally relevant.
Moreover, the persistence of the theory that all testimony is
``cathartic'' is unsupported by empirical evidence. The movie version
of cure after one cathartic moment is a fantasy. For trauma narrative
to be useful for healing, it must take place at the right time, under
the right circumstances, with a trained therapist or support group; it
may require repeated telling under controlled conditions to be
therapeutic. The essence of law is judgement about facts and normative
issues, not psychotherapy. A victim's testimony at legal proceedings
must serve to aid understanding and evaluation of relevant legal
considerations.
8. assuming prosecutors could represent victims in enforcing their
rights under the amendment is erroneous
If victims are to have constitutional rights, questions of
representation are sure to arise. Indigent victims will not be able to
afford counsel, although they may be in most need of counsel to aid
them in dealing with a sophisticated legal system. But providing crime
victims with counsel, as is done for indigent criminal defendants,
would be expensive. Accordingly, advocates of the amendment, including
prosecutors, often assume prosecutors can effectively represent
victims' interests.
This assumption is erroneous. Although prosecutors and victims have
some interests in cooperation, their interests can diverge
dramatically. There is a potential for conflicts of interest between
the victim and the prosecutor at every stage of the proceedings. If a
surviving family member of a homicide victim opposes the death penalty,
and the prosecutor determines that her ethical responsibility is to
seek the death penalty in a given case, the prosecutor cannot represent
the survivor's interests in avoiding capital punishment for the
offender.
Prosecutors have a duty to see that justice is done and to
represent the community and state's interests in criminal cases. The
victim might not share these interests. For example, some jurisdictions
have adopted mandatory prosecution policies in domestic abuse cases.\3\
Many domestic abuse victims do not want the perpetrator prosecuted or
jailed; they simply want the abuse to end. But the community has an
interest in punishing batterers in order to send the message that
battering is a crime and will be punished, in order to gain some
ability to force batterers to reform, and to prevent future battering
incidents or even deaths. The community also has interests in lessening
the effects on children of violence in the home, while the victim may
have economic and personal reasons other than fear of retaliation to
decline prosecution. But under a mandatory prosecution system, victims
could be subpoenaed and jailed for contempt by prosecutors and courts.
Thus, the prosecutor is not representing the victim's interests or
wants.
---------------------------------------------------------------------------
\3\ This discussion is based on Cheryl Hanna, No Right to Choose:
Mandated Victim Participation in Domestic Violence Prosecutions, 109
Harv. L. Rev. 1849 (1996).
---------------------------------------------------------------------------
In instances where the prosecutor believes she cannot prove a case
beyond a reasonable doubt, she has an ethical obligation not to pursue
the case. Lest this seem far-fetched, recent revelations of
prosecutorial failures to honor this obligation in Chicago, San Diego
and elsewhere should make it clear that the obligation is an important
one to society, first to make sure the innocent are not wrongly
convicted and second, to make sure that those who are guilty are
apprehended and punished. If the victim disagrees, then the prosecutor
cannot represent the victim.
The role of counsel for victims of course is unclear at this time,
but those who would adopt this amendment ought to be explicit about
representation of victim's interests.
9. conclusion
States and Congress are currently experimenting with statutory and
state constitutional formulations for victims' rights and entitlements.
We do not know yet which works best and are most helpful to victims,
nor do we have enough information about what helps victims recover. It
is far too early to enact a constitutional amendment without knowing
anything empirical and without a stronger constitutional case for the
amendment.
Conference of Chief Justices,
Office of Government Relations,
Arlington, VA, March 19, 1999.
Re: Senate Joint Resolution 3, ``Proposing an amendment to the
Constitution of the United States to protect the rights of crime
victims''
The Hon. John Ashcroft,
Chairman, Subcommittee on the Constitution, Federalization and Property
Rights,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Chairman Ashcroft: The Conference of Chief Justices (CCJ) has
an ongoing Task Force on Victims' Rights, which I chair, to consider
Congressional proposals to protect the rights of crime victims. By
letter dated May 16, 1997 to Chairman Hatch we commented on S.J. Res. 6
in the 105th Congress. We recently were informed that the Subcommittee
on the Constitution, Federalization and Property Rights will hold a
hearing on S.J. Res. 3 on March 24, 1999. We would hope that you would
enter this letter in the record of your hearing and consider our views
as you process this legislation.
As we stated in 1997, CCJ is in favor of according the victims of
crime all rights that are consistent with the paramount duty of
insuring public safety by the prosecution of criminal offenders. CCJ
applauds the noble goals of S.J. Res. 3 as we did its predecessor, S.J.
Res. 6. However, we remain concerned with the federalism issues
presented in S.J. Res. 3.
The CCJ concurs with the recommendations of the U.S. Judicial
Conference regarding a statutory alternative to this issue. In its most
recent official position (statement of U.S. Chief Judge George P. Kazen
before the Committee on the Judiciary of the House of Representatives,
June 25, 1997), Chief Judge Kazen stated, `` In the event that Congress
chooses to affirmatively act on the issue of victims' rights, the
Judicial Conference would strongly prefer that Congress pursue a
statutory approach to this issue as opposed to a constitutional
amendment.'' It is their and our position that a statutory provision
enacted by Congress would give the federal judiciary a more measured
opportunity to refine untested legal concepts and rights in order to
develop a body of precedent that would pave the way for an eventual
possible constitutional amendment.
As you know, all states have some type of statutory guarantee for
the protection of victims' rights, most of which have been enacted
recently. At least 31 of the states also have constitutional provisions
and these enactments provide victims with the opportunity to be heard
at the various stages of criminal litigation, particularly at the point
of sentencing and in respect to release on bail or on parole. More
states are considering further constitutional changes. If the sponsors
of S.J. Res. 3 are searching for a single settled law governing
victims, the goal will not be achieved through a Federal Constitutional
Amendment. Preempting each State's existing laws in favor of a broad
Federal law will create additional complexities and unpredictability
for litigation in both State and Federal courts for years to come. We
believe that the existing extensive state efforts provide a
significantly more prudent and flexible approach for testing and
refining the evolving legal concepts concerning victims rights.
The Conference cannot emphasize too strongly our great concern with
creating the potential for extensive Federal court surveillance of the
day to day operations of State law enforcement operations in this area.
It is almost a forgone conclusion that if a Federal victims rights
constitutional amendment is enacted, then there would be an increase in
oversight by the lower Federal Courts of such issues as :
A definition of who is a ``victim'';
A conflict between the right ``to reasonable notice of, and
not to be excluded from, any public proceedings relating to the
crime'' and the common law rationale for witness sequestration;
The implications of the amendment for the numerous States
where juvenile proceedings are kept confidential.
There are also numerous practical questions about the ancillary
costs of a Federal constitutional amendment for the State court
systems. For instance, it is not clear which State entity would be
responsible for the notice requirements proposed by S.J. Res. 3. An
Amendment also raises resource issues for States handling indigent
crime victims and their need for court-appointed counsel. All of these
issues eventually would involve increased conflicts between State and
Federal judiciaries similar to the habeas corpus litigation of the
past.
Another grave concern of the Conference is that since damages
against state and federal officials are prohibited under S.J. Res. 3,
an alternative remedy for victims would be to seek injunctive relief
against state officials in federal courts. This type of litigation is
reminiscent of federal civil rights cases under 42 U.S.C. 1983 (See
Pulliam v. Allen, 452 U.S. 522 (1984), which were only recently
modified by Congress to limit abuses (Sec. 309 of S. 1887, P.L. 104-
317).
In the event that the Senate is determined to embark upon the
process of a constitutional amendment, the CCJ would suggest that its
provisions be applicable only to federal criminal proceedings. In this
way experience would be gained within the federal judiciary concerning
the identification of and solution to problems that would invariably
arise.
We recognize that the present draft of the amendment pending before
the Senate would be applicable both to the federal judiciary and to the
states. Section 3 provides that ``Congress shall have the power to
enforce this article by appropriate legislation. Exceptions to the
rights established by this article may be created only when necessary
to achieve a compelling interest.'' The Conference notes that this is a
change from S.J. Res. 6 which also allowed state legislative
implementation of the Amendment. We would urge your Subcommittee to
review this section and allow the state legislatures to implement this
article with respect to state proceedings. Such power is more
appropriately exercised by state legislatures within their respective
jurisdictions.
The Conference would further urge your Subcommittee to include
language that would prohibit federal judicial oversight of the
implementation of this article save by the Supreme Court of the United
States through its discretionary review of state courts by writ of
certiorari.
To summarize our comments CCJ suggests, alternatively:
(1) That victims' rights be protected in the federal system by a
statutory enactment;
(2) That if a constitutional amendment be proposed, it be applicable
only to federal judicial proceedings;
(3) If S.J. Res. 3 is to be proposed by Congress that implementation
of the article be enforced within the states only by state
legislative action; and,
(4) That federal judicial oversight of interpretation of the article
be limited to discretionary review of the state court action by the
U.S. Supreme Court by writ of cretiorari.
On behalf of the Conference of Chief Justices, I thank you for your
consideration of the suggestions which are set forth in this letter. I
would further volunteer myself and other members of the Conference of
Chief Justices to be available to appear and testify at any further
hearings conducted by your Subcommittee on this pending resolution.
Very truly yours,
Chief Justice Joseph R. Weisberger,
Supreme Court of Rhode Island Chairperson, CCJ Task Force on Victim
Rights.