Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
                                                       Calendar No. 455
105th Congress                                                   Report

 2d Session                                                     105-409



 October 12 (legislative day, October 2), 1998.--Ordered to be printed


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with


                      [To accompany S.J. Res. 44]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 44) to propose an amendment to the 
Constitution of the United States to protect the rights of 
crime victims, having considered the same, reports favorably 
thereon, with an amendment, and recommends that the joint 
resolution, as amended, do pass.

  I. Purpose..........................................................2
 II. Background and legislative history...............................2
III. The need for constitutional protection...........................5
 IV. The need for specific rights in the process.....................12
  V. Section-by-section analysis.....................................22
 VI. Vote of the Committee...........................................37
VII. Text of S.J. Res. 44............................................38
VIII.Cost estimate...................................................39

 IX. Regulatory impact statement.....................................40
  X. Additional views of Senator Hatch...............................41
 XI. Minority views of Senator Thompson..............................47
XII. Minority views of Senators Leahy, Kennedy, and Kohl.............50
XIII.Additional views of Senators Leahy and Kennedy..................77

XIV. Additional views of Senator Biden...............................80
 XV. Additional views of Senators Feingold and Durbin................84
XVI. Changes in existing law.........................................86

                               I. PURPOSE

    The Crime Victims' Rights Constitutional Amendment is 
intended to establish and preserve, as a matter of right for 
the victims of violent crimes, the practice of victim 
participation in the administration of criminal justice that 
was the birthright of every American at the founding of our 
    It was decades after the ratification of the Constitution 
and the Bill of Rights that the offices of the public police 
and the public prosecutor would be instituted, and decades 
beyond that before the victim's role was fully reduced from 
that of the moving party in every criminal prosecution, to that 
of a party of interest in the proceedings, to that of mere 
witness, stripped even of membership in ``the public'' under 
the Constitutional meaning of ``a public trial.''
    Much, of course, was gained in the transformation of 
criminal justice from one of private investigation and 
prosecution to an enterprise of government. The overall 
community's stake in how the System operated was recognized; 
the policies governing the System, the public servants hired by 
the System, and the resources needed by the System all became 
accountable to the democratic institutions of government. In 
many ways, crime victims themselves benefited from the change. 
They had the aid of public law enforcement, which was more 
skilled than the average victim in investigating the crime, and 
the aid of public prosecutors, who were more skilled than the 
average victim in pleading their case in court. No longer would 
the wealth of the violated party be a significant determinant 
as to whether justice was done.
    However, in the evolution of the Nation's Justice System, 
something ineffable has been lost, evidenced in this plea of a 
witness speaking to the 1982 President's Task Force on Victims 
of Crime: ``Why didn't anyone consult me? I was the one who was 
kidnaped--not the state of Virginia.''
    One of the most extraordinary aspects of the several 
hearings the Committee has held on this issue is the broad 
consensus among proponents and opponents alike that violent 
crime victims have a deep, innate, and wholly legitimate 
interest in the cases that victims bring to the justice system 
for resolution. It is beyond serious question that for many or 
most crime victims the prosecution and punishment of their 
violators are the most important public proceedings of their 
    This, then, is the purpose of the Crime Victims' Rights 
Amendment: to acknowledge and honor the humanity and dignity of 
crime victims within our borders who entrust the Government to 
seek justice for them. In pursuit of this purpose, the 
Committee seeks to strengthen the great theme of the Bill of 
Rights--to ensure the rights of citizens against the 
deprecations and intrusions of government--and to advance the 
great theme of the later amendments, extending the 
participatory rights of American citizens in the affairs of 


    For more than 15 years, a Federal Crime Victims' Rights 
Amendment has been under consideration in this country. The 
idea dates back to at least 1982, when the Presidential Task 
Force on Victims of Crime convened by President Reagan 
recommended, after hearings held around the country and careful 
consideration of the issue, that the only way to fully protect 
crime victims' rights was by adding such rights to the 
Constitution. The President's Task Force explained the need for 
a constitutional amendment in these terms:

          In applying and interpreting the vital guarantees 
        that protect all citizens, the criminal justice system 
        has lost an essential balance. It should be clearly 
        understood that this Task Force wishes in no way to 
        vitiate the safeguards that shelter anyone accused of 
        crime; but it must be urged with equal vigor that the 
        system has deprived the innocent, the honest, and the 
        helpless of its protection.
          The guiding principle that provides the focus for 
        constitutional liberties is that government must be 
        restrained from trampling the rights of the individual 
        citizen. The victims of crime have been transformed 
        into a group oppressively burdened by a system designed 
        to protect them. This oppression must be redressed. To 
        that end it is the recommendation of this Task Force 
        that the sixth amendment to the Constitution be 

(President's Task Force on Victims of Crime, Final Report 114 

    Following that recommendation, proponents of crime victims' 
rights decided to seek constitutional protection in the states 
initially before undertaking an effort to obtain a federal 
constitutional amendment. 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, 1381-83 
(recounting the history). As explained in testimony before the 
Committee, ``[t]he `states-first' approach drew the support of 
many victim advocates. Adopting state amendments for victim 
rights would make good use of the `great laboratory of the 
states,' that is, it would test whether such constitutional 
provisions could truly reduce victims' alienation from their 
justice system while producing no negative, unintended 
consequences.'' Senate Judiciary Committee Hearing, April 23, 
1996, statement of Robert E. Preston, at 40. A total of 29 
states, in widely differing versions, now have state victims' 
rights amendments.\1\
    \1\ See Ala. Const. Amend. 557, Alaska Const. art. I, Sec. 24; 
Ariz. Const. Art. II, Sec. 2.1; Cal. Const. Art. I, Sec. Sec. 12, 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; Ind. Const. Art. 
I, Sec. 13(b); Kans. Const. Art. 15, Sec. 15; Md. Decl. of Rights art. 
47; Mich. Const. Art. I, Sec. 24; Missouri Const. Art. I, Sec. 32; Neb. 
Const. Art. I, Sec. 28; Nev. Const. Art. I, Sec. 8; N.C. Const. Art. I, 
Sec. 37; N.J. Const. Art. I, Sec. 22; New Mex. Const. Art. 2, Sec. 24; 
North Carolina Const. Art. I, Sec. 37; Ohio Const. Art. I, Sec. 10a; 
Okla. Const. Art. II, Sec. 34; Rhode Island Const. Art. I, Sec. 23; 
S.C. Const. Art. I, Sec. 24; Texas Const. Art. I, Sec. 30; Utah Const. 
Art. I, Sec. 28; Va. Const. Art. I, Sec. 8-A; Wash. Const. Art. 2, 
Sec. 33; Wisc. Const. Art. I, Sec. 9m. These amendments passed with 
overwhelming popular support.
    With the passage of and experience with these State 
constitutional amendments came increasing recognition of both 
the national consensus supporting victims' rights and the 
difficulties of protecting these rights with anything other 
than a Federal amendment. As a result, the victims' advocates--
including most prominently the National Victim Constitutional 
Amendment Network (NVCAN)--decided in 1995 to shift their focus 
towards passage of a Federal amendment. In 1997, the National 
Governors Association passed a resolution supporting a Federal 
constitutional 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.'' National Governors Association, Policy 23.1 
(effective winter 1997 to winter 1999).
    In the 104th Congress, S.J. Res. 52, the first Federal 
constitutional amendment to protect the rights of crime 
victims, was introduced by Senators Jon Kyl and Dianne 
Feinstein on April 22, 1996. Twenty-seven other Senators 
cosponsored the resolution. A similar resolution (H.J. Res. 
174) was introduced in the House by Representative Henry Hyde. 
On April 23, 1996, the Senate Committee on the Judiciary held a 
hearing on S.J. Res. 52. Representative Hyde testified in 
support of the amendment. Victims and representatives of 
victims' rights organizations also spoke in favor of the 
amendment: Katherine Prescott, the president of Mothers Against 
Drunk Driving (MADD); Ralph Hubbard, board member and State 
Coordinator of Parents of Murdered Children of New York State; 
John Walsh, the host of ``America's Most Wanted''; Collene 
Campbell, a leader in the victims' rights movement in 
California; Rita Goldsmith, the national spokesperson of 
Parents of Murdered Children; and Robert E. Preston, co-
chairman of the National Constitutional Amendment Network. Two 
legal experts testified in support of the amendment: Professor 
Paul Cassell and Steven J. Twist, a member of the board of the 
National Organization for Victim Assistance and the former 
Chief Assistant Attorney General of Arizona. Two legal experts 
testified against the amendment: Professor Jamin Raskin of 
Washington College of Law at American University and noted 
commentator Bruce Fein, former member of the Department of 
    At the end of the 104th Congress, Senators Kyl and 
Feinstein introduced a modified version of the amendment (S.J. 
Res. 65). As first introduced, S.J. Res. 52 embodied eight core 
principles: notice of the proceedings; presence; right to be 
heard; notice of release or escape; restitution; speedy trial; 
victim safety; and notice of rights. To these core values 
another was added in S.J. Res. 65, the right of every victim to 
have independent standing to assert these rights.
    In the 105th Congress, Senators Kyl and Feinstein 
introduced S.J. Res. 6 on January 21, 1997, the opening day of 
the Congress. Thirty-two Senators became cosponsors of the 
resolution. On April 16, 1997, the Senate Committee on the 
Judiciary held a hearing on S.J. Res. 6. Representative Robert 
C. Scott testified in opposition to the amendment and 
Representative Deborah Pryce testified in support of the 
amendment. U.S. Attorney General Janet Reno testified that 
``[b]ased on our personal experiences and the extensive review 
and analysis that has been conducted at our direction, the 
President and I have concluded that an amendment to the U.S. 
Constitution to protect victims' rights is warranted.'' (Senate 
Judiciary Committee Hearing, April 16, 1997, statement of 
Attorney General Reno, at 40-41.)
    Others testifying in support of the amendment included John 
Walsh, the host of ``America's Most Wanted''; Marsha Kight of 
Oklahoma City; Wisconsin attorney general Jim Doyle; Kansas 
attorney general Carla Stovall; Pima County attorney Barbara 
LaWall; and Prof. Paul Cassell of the University of Utah 
College of Law. The following people testified in opposition to 
the amendment: Lynne Henderson of Bloomington, IN; Donna F. 
Edwards, the executive director of the National Network to End 
Domestic Violence; and Virginia Beach Commonwealth Attorney 
Robert J. Humphreys.
    S.J. Res. 44 was introduced by Senators Kyl and Feinstein 
on April 1, 1998. Thirty-nine Senators joined Senators Kyl and 
Feinstein as original cosponsors: Senators Biden, Lott, 
Thurmond, Torricelli, Breaux, Grassley, DeWine, Ford, Reid, 
Gramm, Mack, Landrieu, Cleland, Coverdell, Craig, Inouye, 
Bryan, Snowe, Thomas, Warner, Lieberman, Allard, Hutchison, 
D'Amato, Shelby, Campbell, Coats, Faircloth, Frist, Robert 
Smith, Gregg, Hagel, Helms, Gordon Smith, Hutchinson, Inhofe, 
Murkowski, Bond, and Grams. Senator Wyden subsequently joined 
as a cosponsor. The amendment included the core principles 
contained in the earlier versions. The scope of the amendment 
as originally proposed reached to crimes of violence and other 
crimes that may have been added by law. In the present text, 
the amendment is limited to crimes of violence.
    On April 28, 1998, the Senate Committee on the Judiciary 
held a hearing on S.J. Res. 44. Raymond C. Fisher, the U.S. 
Associate Attorney General testified in support of an 
amendment. Additionally, the following witnesses testified in 
support of S.J. Res. 44: Prof. Paul Cassell; Steve Twist, a 
member of the National Victims' Constitutional Amendment 
Network and the former Chief Assistant Attorney General of 
Arizona; Norm Early, a former Denver district attorney and a 
board member of the National Organization for Victim 
Assistance; and Marlene Young, the executive director of the 
National Organization for Victim Assistance. The following 
witnesses testified in opposition to the amendment: Prof. 
Robert Mosteller of Duke Law School and Kathleen Kreneck, the 
executive director of the Wisconsin Coalition Against Domestic 
    On July 7, after debate at three executive business 
meetings, the Senate Committee on the Judiciary approved S.J. 
Res. 44, with a substitute amendment, by a vote of 11 to 6. The 
following Senators voted in favor of the amendment: Hatch, 
Thurmond, Grassley, Kyl, DeWine, Ashcroft, Abraham, Sessions, 
Biden, Feinstein, and Torricelli. The following Senators voted 
against the amendment: Thompson, Leahy, Kennedy, Kohl, 
Feingold, and Durbin. Senator Specter did not vote.


    After extensive testimony in hearings held over 3 different 
years, the Committee concludes that a Federal constitutional 
amendment will protect victims' rights in the Nation's criminal 
justice system. While a wide range of State constitutional 
amendments and other State and Federal statutory protections 
exist to extend rights to victims, that patchwork has not fully 
succeeded in ensuring comprehensive protection of victims' 
rights within the criminal justice system. A Federal amendment 
can better ensure that victims' rights are respected in the 
Nation's State and Federal courts.
    The U.S. Supreme Court has held that ``in the 
administration of criminal justice, courts may not ignore the 
concerns of victims.'' Morris v. Slappy, 461 U.S. 1, 14 (1983). 
Yet in today's world, without protection in our Nation's basic 
charter, crime victims are in fact often ignored. As one former 
prosecutor told the committee, ``the process of detecting, 
prosecuting, and punishing criminals continues, in too many 
places in America, to ignore the rights of victims to 
fundamental justice.'' Senate Judiciary Committee Hearing, 
April 23, 1996, statement of Steven J. Twist, at 88. In some 
cases victims are forced to view the process from literally 
outside the courtroom. Too often they are left uninformed about 
critical proceedings, such as bail hearings, plea hearings, and 
sentencings. Too often their safety is not considered by courts 
and parole boards determining whether to release dangerous 
offenders. Too often they are left with financial losses that 
should be repaid by criminal offenders. Too often they are 
denied any opportunity to make a statement that might provide 
vital information for a judge. Time and again victims testified 
before the Committee that being left out of the process of 
justice was extremely painful for them. One victim even found 
the process worse than the crime: ``I will never forget being 
raped, kidnaped, and robbed at gunpoint. However my 
disillusionment [with] the judicial system is many times more 
painful.'' President's Task Force on Victims of Crime, Final 
Report 5 (1982).
    It should be noted at the outset that a Federal amendment 
for victims' rights is intended to provide benefits to society 
as a whole, and not just individual victims. As Attorney 
General Reno has testified:

          [T]he President and I have concluded that a victims' 
        rights amendment would benefit not only crime victims 
        but also law enforcement. To operate effectively, the 
        criminal justice system relies on victims to report 
        crimes committed against them, to cooperate with law 
        enforcement authorities investigating those crimes, and 
        to provide evidence at trial. Victims will be that much 
        more willing to participate in this process if they 
        perceive that we are striving to treat them with 
        respect and to recognize their central place in any 

(Senate Judiciary Committee Hearing, April 16, 1997, statement 
of Attorney General Reno, at 41.)

        the constitution typically protects participatory rights

    The Committee has concluded that it is appropriate that 
victims' rights reform take the form of a Federal 
constitutional amendment. A common thread among many of the 
previous amendments to the Federal constitution is a desire to 
expand participatory rights in our democratic institutions. 
Indeed, the 15th amendment was added to ensure African-
Americans could participate in electoral process, the 19th 
amendment to do the same for women, and the 26th amendment 
expanded such rights to young citizens. Other provisions of the 
Constitution guarantee the openness of civil institutions and 
proceedings, including the rights of free speech and assembly, 
the right to petition the Government for redress of grievances, 
and perhaps most relevant in this context, the right to a 
public trial. It is appropriate for this country to act to 
guarantee rights for victims to participate in proceedings of 
vital concern to them. These participatory rights serve an 
important function in a democracy. As the Justice Brandeis once 
stated, ``[s]unlight is said to be the best of disinfectants.'' 
Louis Brandeis, Other People's Money 62 (1933). Open 
governmental institutions, and the participation of the public, 
help ensure public confidence in those institutions. In the 
case of trials, a public trial is intended to preserve 
confidence in the judicial system, that no defendant is denied 
a fair and just trial. However, it is no less vital that the 
public--and victims themselves--have confidence that victims 
receive a fair trial.
    In a Rose Garden ceremony on June 25, 1996, endorsing the 
amendment, President Clinton explained the need to 
constitutionally guarantee a right for victims to participate 
in the criminal justice process:

          Participation in all forms of government is the 
        essence of democracy. Victims should be guaranteed the 
        right to participate in proceedings related to crimes 
        committed against them. 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 right to participate, and that 
        is not the way it should be.

    Two leading constitutional law scholars recently reached 
similar conclusions:

          [The proposed Crime Victims' Rights Amendment] would 
        protect basic rights of crime victims, including their 
        rights to be notified of and present at all proceedings 
        in their case and to be heard at appropriate stages in 
        the process. These are rights not to be victimized 
        again through the process by which government officials 
        prosecute, punish, and release accused or convicted 
        offenders. These are the very kinds of rights with 
        which our Constitution is typically and properly 
        concerned--rights of individuals to participate in all 
        those government process that strongly affect their 
        lives. (Laurence H. Tribe & Paul G. Cassell, Embed the 
        Rights of Victims in the Constitution, L.A. Times, July 
        6, 1998, at B7.)

    Participation of victims is not only a value consistent 
with our constitutional structure but something that can have 
valuable benefits in its own right. As experts on the 
psychological effects of victimization have explained, there 
are valuable therapeutic reasons to ensure victim participation 
in the criminal justice process:

          The criminal act places the victim in an inequitable, 
        ``one-down'' position in relationship to the criminal, 
        and the victims' trauma is thought to result directly 
        from this inequity. Therefore, it follows that the 
        victims' perceptions about the equity of their 
        treatment and that of the defendants affects their 
        crime-related psychological trauma. [F]ailure to * * * 
        offer the right of [criminal justice] participation 
        should result in increased feelings of inequity on the 
        part of the victims, with a corresponding increase in 
        crime-related psychological harm. (Dean G. Kilpatrick & 
        Randy K. Otto, Constitutionally Guaranteed 
        Participation in Criminal Proceedings for Victims: 
        Potential Effects on Psychological Functioning, 34 
        Wayne L. Rev. 7, 19 (1987).)

    For all these reasons, it is the view of the Committee that 
it is vital that victims be guaranteed an appropriate 
opportunity to participate in our criminal justice process.

    less than federal constitutional protection has been inadequate

    Most of the witnesses testifying before the Committee 
shared the view that victims' rights were inadequately 
protected today and that, without a Federal amendment, they 
would so remain. Attorney General Reno, for example, reported 
after careful study that:

          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' 

(Senate Judiciary Committee Hearing, April 16, 1997, statement 
of Attorney General Reno, at 64.)

    Similarly, a comprehensive 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.'' 
U.S. Department of Justice, Office for Victims of Crime, New Directions 
From the Field: Victims' Rights and Services for the 21st Century 10 
(1998). Indeed, Professors Tribe and Cassell have reached a similar 
conclusion: ``Congress and the states already have passed a variety of 
measures to protect the rights of victims. Yet the reports from the 
field are that they have all too often been ineffective.'' Laurence H. 
Tribe and Paul G. Cassell, Embed the Rights of Victims in the 
Constitution, L.A. Times, July 6, 1998, at B7.

       examples of victims denied the opportunity to participate

    It is the view of the Committee that a Federal amendment 
can better ensure that victims' opportunity to participate in 
the criminal justice process is fully respected. The Committee 
heard significant testimony about how the existing patchwork 
fails to transform paper promises to victims into effective 
protections in the criminal justice system. At the Committee's 
1998 hearing, Marlene Young, a representative of the National 
Organization for Victim Assistance (NOVA), gave some powerful 
examples to the Committee:

           Roberta Roper, who testified eloquently 
        before the Committee in her capacity as the co-chair of 
        the National Victims Constitutional Amendment Network, 
        was denied the opportunity to sit in the courtroom at 
        the trial of her daughter's murderer because it was 
        thought she might, by her presence, influence the 

           Sharon Christian, 20 years old, a young 
        victim of rape reported the crime. After the offender 
        was arrested, she was victimized by the system when, 2 
        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 no opportunity to ask for a 
        restraining order or for the court to consider the 
        possibility of bond.

           Virginia Bell, a retired civil servant, was 
        accosted and robbed in Washington, DC some five blocks 
        from the Committee's hearing room, suffering a broken 
        hip. Her medical expenses were over $11,000, and the 
        resulting debilitation required her to live with her 
        daughter in Texas. While her assailant pled guilty, Ms. 
        Bell was not informed, and the impact of her 
        victimization was never heard by the court. The court 
        ultimately ordered restitution in the entirely 
        arbitrary and utterly inadequate amount of $387.

           Ross and Betty Parks, parents of a murdered 
        daughter Betsy, waited 7 years for a murder trial. The 
        delay was caused, in part, by repeated motions that 
        resulted in delay--thirty-one motions at one point.

    The unfortunate and unfair treatment of these individuals 
was brought to the attention of the Committee by just one 
witness. But the reports from the field are that there are 
countless other victims that have been mistreated in similar 
ways. Yet sadly and all too often, the plight of crime victims 
will never come to the attention of the public or the appellate 
courts or this Committee. Few victims have the energy or 
resources to challenge violations of even clearly-established 
rights and, in those rare cases when they do so, they face a 
daunting array of obstacles. No doubt today many frustrated 
victims simply give up in despair, unable to participate 
meaningfully in the process.

      statistical quantification of violations of victims' rights

    The statistical evidence presented to the Committee 
revealed that the current regime falls well short of giving 
universal respect to victims' rights. In the mid-1990's, the 
National Victim Center, under a grant from the National 
Institute of Justice, reviewed the implementation of victims' 
rights laws in four States. Two states were chosen because they 
had strong State statutory and State constitutional protection 
of victims' rights, and two were chosen because they had weaker 
protection. The study surveyed more than 1,300 crime victims 
and was the largest of its kind ever conducted. It found that 
many victims were still being denied their rights, even in 
States with what appeared to be strong legal protection. The 
study concluded that State protections alone are insufficient 
to guarantee victims' rights:

          The Victims Rights Study revealed that, while strong 
        state statutes and state constitutional amendments 
        protecting crime victims' rights are important, they 
        have been insufficient to guarantee the rights of crime 
        victims. While this sub-report focused on reports by 
        crime victims regarding their personal experiences, the 
        responses of local criminal justice and victim service 
        providers to similar questions in the Victims Rights 
        Study corroborate the victim responses. Even in states 
        with strong protection large numbers of victims are 
        being denied their legal rights.

(National Victim Center, Statutory and Constitutional 
Protection of Victims' Rights: Implementation and Impact on 
Crime Victims--Sub-Report: Crime Victim Responses Regarding 
Victims' Rights 7 (April 15, 1997).)

    Important findings of the study included:

           Nearly half of the victims (44 percent) in 
        States with strong protections for victims and more 
        than half of the victims (70 percent) in States with 
        weak protections did not receive notice of the 
        sentencing hearing--notice that is essential for 
        victims to exercise their right to make a statement at 

           While both of the States with strong 
        statutes had laws requiring that victims be notified of 
        plea negotiations, and neither of the weak protection 
        States had such statutes, victims in both groups of 
        States were equally unlikely to be informed of such 
        negotiations. Laws requiring notification of plea 
        negotiations were not enforced in nearly half of the 
        violent crime cases included in the study.

           Substantial numbers of victims in States 
        with both strong and weak protection were not notified 
        of various stages in the process, including bail 
        hearings (37 percent not notified in strong protection 
        states, 57 percent not notified in weak protection 
        states); the pretrial release of perpetrators (62 
        percent not notified in strong protection states, 74 
        percent not notified in weak protection States); and 
        sentencing hearings (45 percent not notified in strong 
        protection States, 70 percent not notified in weak 
        protection States).

    A later report based on the same large data base found that 
racial minorities are most severely affected under the existing 
patchwork of victims' protections. 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). Echoing these 
findings of disparate impact, another witness reported to the 
Committee, ``There being no constitutional mandate to treat all 
of America's victims, white and non-white, with dignity and 
compassion * * * minority victims will continue to feel the 
sting of their victimization much longer than their white 
counterparts. Because of the large percentage of minority 
victims in the system, their neglect * * * continues to create 
disrespect for a process in the communities where such 
disrespect can be least afforded.'' Senate Judiciary Committee 
Hearing, April 28, 1998, statement of Norm S. Early. A recent 
report concluded, after reviewing all of the evidence from the 
field, that ``[w]hile victims' rights have been enacted in 
states and at the federal level, they are by no means 
consistent nationwide. All too often they are not enforced 
because they have not been incorporated into the daily 
functioning of all justice systems and are not practiced by all 
justice professionals.'' U.S. Department of Justice, Office for 
Victims of Crime, New Directions from the Field: Victims' 
Rights and Services for the 21st Century 9 (1998).
    In sum, as Harvard Law Prof. Laurence H. Tribe has 
concluded, rules enacted to protect victims' rights ``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.'' Laurence H. Tribe, Statement 
on Victims' Rights, April 15, 1997, p. 3.

 a federal amendment is compatible with important federalism principles

    The proposed victims' rights constitutional amendment is 
fully compatible with the principles of federalism on which our 
republic is based. First, of course, the constitutionally 
specified process for amending the Constitution fully involves 
the States, requiring approval of three-quarters of them before 
any amendment will take effect. There is, moreover, substantial 
evidence that the States would like to see the Congress act and 
give them, through their State legislatures, the opportunity to 
approve an amendment. For example, the National Governors 
Association overwhelmingly endorsed a resolution calling for a 
Federal constitutional amendment.
    The important values of federalism provide no good reason 
for avoiding action on the amendment. Already many aspects of 
State criminal justice systems are governed by Federal 
constitutional principles. For example, every State is required 
under the sixth amendment to the Federal constitution as 
applied to the States to provide legal counsel to indigent 
defendants and a trial by jury for serious offenses. Victims' 
advocates simply seek equal respect for victims' rights, to 
give the same permanence to victims' rights.
    Adding protections into the U.S. Constitution, our 
fundamental law, will serve to ensure that victims' rights are 
fully protected. This same point was recognized by James 
Madison in considering whether to add to the Constitution a 
Bill of Rights. He concluded the Bill of Rights would acquire, 
by degrees, ``the character of fundamental maxims.'' James 
Madison, The Complete Madison, ed. Saul K. Padover, p. 254 
    Amending the Constitution is, of course, a significant 
step--one which the Committee does not recommend lightly. But 
to protect victims, it is an appropriate one. As Thomas 
Jefferson once said: ``I am not an advocate for frequent 
changes in laws and constitutions, but laws and institutions 
must go hand in hand with the progress of the human mind. As 
that becomes more developed, more enlightened, as new 
discoveries are made, new truths discovered and manners and 
opinions change, with the change of circumstances, institutions 
must advance also to keep pace with the times.'' Thomas 
Jefferson, letter to Samuel Kercheval, July 12, 1816, The 
Writings of Thomas Jefferson, ed. Paul L. Ford, vol. 10, pp. 
42-43 (1899). Throughout the country, there is a strong 
consensus that victims' rights deserve to be protected. But at 
the same time, as a country, we have failed to find a way to 
fully guarantee rights for victims in criminal justice 
processes of vital interest to them. It is time to extend 
Federal constitutional recognition to those who are too often 
forgotten by our criminal justice system--the innocent victims 
of crime.


    With this need for Federal constitutional protection of 
victims' rights in mind, the Committee finds that rights under 
eight general headings should be protected in an amendment to 
the Federal constitution. Each of these eight rights is 
discussed in turn.

1. Right to notice of proceedings

    Rights for victims in the criminal justice process are of 
little use if victims are not aware of when criminal justice 
proceedings will be held. The Committee heard testimony about 
the devastating effects on crime victims when hearings about 
the crime are held without prior notice to them. For example, a 
witness from Parents of Murdered Children (POMC) testified:

          Each week at our national office, we receive more 
        than 1,000 murder-related calls. Of these calls, about 
        half involve homicide survivors who believe that they 
        have been treated unfairly by some part of the criminal 
        justice system. Some of our members even have as much 
        anger about their unfair treatment by the criminal 
        justice system as they do about the murder. * * *
          Many of the concerns 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. * * * [I]n 
        many cases, the failure to provide information arises 
        simply from indifference to the plight of the surviving 
        family members or a feeling that they have no right to 
        the information.
          Because they do not know what is going on, victims 
        frequently must take it upon themselves to call * * * 
        the prosecutor, or the courts for information about 
        their case. All too often, such calls have to be made 
        when victims' families are in a state of shock or are 
        grieving from the loss of their loved ones. Victims' 
        family should not have to bear the added burden of 
        trying to obtain information. It should be their 
        automatic right.

(Senate Judiciary Committee Hearing, April 23, 1996, prepared 
statement of Rita Goldsmith, at 35-36.)

    No witness testified before the Committee that victims 
should not receive notice of important proceedings. The 
Committee concludes that victims deserve notice of important 
criminal justice proceedings relating to the crimes committed 
against them.
    Based on a demonstrated need for victims to receive notice, 
as long ago as 1982 the President's Task Force on Victims of 
Crime recommended that legislation and policies to guarantee 
that victims receive case status information, prompt notice of 
scheduling changes of court proceedings, and prompt notice of a 
defendant's arrest and bond status. Reviewing this status of 
these recommendations, a recent Department of Justice Report 

          Fifteen years later, many states, but not all, have 
        adopted laws requiring such notice. 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. * * *
          Many states do not require notification to victims of 
        the filing of an appeal, the date of an appellate 
        proceeding, or the results of the appeal. Also, most do 
        not require notification of release from a mental 
        facility or of temporary or conditional releases such 
        as furloughs or work programs.
          Some state laws require that notice be made 
        ``promptly'' or within a specified period of time. * * 
        * 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. (U.S. 
        Department of Justice, Office for Victims of Crime, New 
        Directions from the Field: Victims' Rights and Services 
        for the 21st Century 13 (1998).)

    This recent report confirms the testimony that the 
Committee received that victims are too often not notified of 
important criminal justice proceedings. It is time to protect 
in the Constitution this fundamental interest of victims.

2. Right to attend

    The Committee concludes that victims deserve the right to 
intend important criminal justice proceedings related to crimes 
perpetrated against them. This is no new insight. In 1982, the 
President's Task Force on Victims of Crime concluded:

          The crime is often one of the most significant events 
        in the lives of victims and their families. They, no 
        less than the defendant, have a legitimate interest in 
        the fair adjudication of the case, and should 
        therefore, as an exception to the general rule provided 
        for the exclusion of witnesses, be permitted to be 
        present for the entire trial.

(President's Task Force on Victims of Crime, Final Report 80 

    Allowing victims to attend court proceedings may have 
important psychological benefits for victims. ``The victim's 
presence during the trial may * * * facilitate healing of the 
debilitating psychological wounds suffered by a crime victim.'' 
Ken Eikenberry, The Elevation of Victims' Rights in Washington 
State: Constitutional Status, 17 Pepperdine L. Rev. 19, 41 
(1989). In addition, without a right to attend trials, victims 
suffer a further loss of dignity and control of their own 
lives. Applying witness sequestration rules in rape cases, for 
example, has proven to be harmful. See Lee Madigan and Nancy C. 
Gamble, The Second Rape: Society's Continued Betrayal of the 
Victim 97 (1989).
    The primary barrier to victims attending trial is witness 
sequestration rules that are unthinkingly extended to victims. 
Not infrequently defense attorneys manipulate these rules to 
exclude victims from courtrooms simply because the defendant 
would like the victim excluded. The Committee heard no 
convincing evidence that a general policy excluding victims 
from courtrooms is necessary to ensure a fair trial. As a 
Department of Justice report recently explained:

          There can be no meaningful attendance rights for 
        victims unless they are generally exempt from [witness 
        sequestration rules]. Just as defendants have a right 
        to be present throughout the court proceedings whether 
        or not they testify, so too should victims of crime. 
        Moreover, the presence of victims in the courtroom can 
        be a positive force in furthering the truth-finding 
        process by alerting prosecutors to misrepresentations 
        in the testimony of other witnesses.

(U.S. Department of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services for the 
21st Century 15 (1998).)

    The Committee finds persuasive the experience of the 
growing number of States that have guaranteed victims an 
unequivocal right to attend a trial. See, e.g., Ariz. Const. 
Art. 2, Sec. 2.1(A)(3) (victim right ``[t]o be present * * * at 
all criminal proceedings where the defendant has the right to 
be present''); Mo. Const. Art. I, Sec. 32(1) (victim has 
``[t]he right to be present at all criminal justice proceedings 
at which the defendant has such right''); Idaho Const. Art. I, 
Sec. 22(4) (victim has the right ``[t]o be present at all 
criminal justice proceedings''). An alternative approach is to 
give victims a right to attend a trial unless their testimony 
would be ``materially affected'' by their attendance. Congress 
has previously adopted such a standard, see 42 U.S.C. 
Sec. 10606(b)(4), but the results have proven to be 
unfortunate. In the Oklahoma City bombing case, for example, a 
district court concluded that testimony about the impact of 
their loss from family members of deceased victims of the 
bombing would be materially affected if the victims attended 
the trial. This perplexing ruling was the subject of 
unsuccessful emergency appeals (see Cassell 1997 testimony) and 
ultimately Congress was forced to act. See Victim Rights 
Clarification Act of 1997 (Pub. L. 105-6, codified at 18 U.S.C. 
Sec. Sec. 3510, 3481, 3593). Even this action did not fully 
vindicate the victims' right to attend that trial. The 
Committee heard testimony from a mother who lost her daughter 
in the bombing that even this Act of Congress did not resolve 
the legal issues sufficiently to give the victims the legal 
assurances they need to attend all the proceedings. Senate 
Judiciary Committee Hearing, April 16, 1997, statement of 
Marsha Kight, at 73-74. Rather than create a possible pretext 
for denying victims the right to attend a trial or extended 
litigation about the speculative circumstances in victim 
testimony might somehow be affected, the Committee believes 
that such a victim's right to attend trial should be flatly 
    While a victim's right to attend is currently protected in 
some statutes or State constitutional amendments, only a 
Federal constitutional amendment will fully ensure such a 
right. The Committee was presented with a detailed legal 
analysis that convincingly demonstrated that there is no 
current federal constitutional right of criminal defendants to 
exclude generally victims from trials. See Senate Judiciary 
Committee Hearing, April 23, 1996, statement of Paul Cassell, 
at 26-34. While this appears to be an accurate assessment of 
constitutional legal principles, the fact remains that the law 
has not been authoritatively settled. In the wake of this 
uncertainty, State rights for victims to attend trials are not 
fully effective.
    Confirmation of this point came when the Committee heard 
testimony that ``even in some States which supposedly protect a 
victims' right to attend a trial, victims are often `strongly 
advised' not to go in because of the possibility that it might 
create an issue for the defendant to appeal.'' Senate Judiciary 
Committee Hearing, April 23, 1996, statement of Rita Goldsmith, 
at 36. Federal prosecutors in the Oklahoma City bombing case, 
for example, were forced to give victims less-than-clear-cut 
instructions on whether victims could attend proceedings. See 
Senate Judiciary Committee Hearing, April 16, 1997, statement 
of Marsh Kight, at 73-74.
    Moreover, efforts to obtain clear-cut legal rulings have 
been unsuccessful. In Utah, for example, despite a strongly 
written amicus brief on behalf of a number of crime victims 
organizations requesting a clear statement upholding the right 
of victims to attend, the Utah Court of Appeals has left 
unsettled the precise standards for exclusion of crime victims. 
See Senate Judiciary Committee Hearing, April 16, 1997, 
statement of Paul Cassell, at 114-15 (discussing State v. 
Beltran-Felix, No. 95-341-CA). The result has been that, in 
Utah and presumably many other States, crime victims must 
struggle with the issue of whether to attend trials of those 
accused perpetrating crimes against them at the expense of 
creating a possible basis for the defendant to overturn his 
conviction. The issue of a victim's right to attend a trial 
should be authoritatively settled by Federal constitutional 

3. Right to be heard

    Crime victims deserve the right to be heard at appropriate 
points in the criminal justice process. Giving victims a voice 
not only improves the quality of the process but can also be 
expected to often provide important benefits to victims. The 
Committee concludes that victims deserve the right to be heard 
at four points in the criminal justice process: plea bargains, 
bail or release hearing, sentencing, and parole hearings.
    Victims have vital interests at stake when a court decides 
whether to accept a plea. One leading expert on victims' rights 
recently explained that:

          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. * * * [B]ecause 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.
(Douglas E. Beloof, Victims in Criminal Procedure: A Casebook 
7-33 (forthcoming N.C. press 1998).)

    Victim participation in bail hearings can also serve 
valuable functions, particularly in alerting courts to the 
dangers that defendants might present if released 
unconditionally. Without victim participation, courts may not 
be fully informed about the consequences of releasing a 
defendant. ``It is difficult for a judge to evaluate the danger 
that a defendant presents to the community if the judge hears 
only from the defendant's counsel, who will present him in the 
best possible light, and from a prosecutor who does not know of 
the basis for the victim's fear. * * *The person best able to 
inform the court of [threatening] statements that may have been made by 
the defendant and the threat he poses is often the person he 
victimized.'' President's Task Force on Victims of Crime, Final Report 
65 (1982).
    The Committee heard chilling testimony about the 
consequences of failing to provide victims with this 
opportunity from Katherine Prescott, the President of Mothers 
Against Drunk Driving (MADD):

          I sat with a victim of domestic violence in court one 
        day and she was terrified. She told me she knew her ex-
        husband was going to kill her. The lawyers and the 
        judge went into chambers and had some discussions and 
        they came out and continued the case. The victim never 
        had the opportunity to speak to the judge, so he didn't 
        know how frightened she was. He might have tried to put 
        some restrictions on the defendant if he had known more 
        about her situation, but it was handled in chambers out 
        of the presence of the victim.
          That night, as she was going to her car after her 
        shift was over at the hospital where she was a 
        registered nurse, she was murdered by her ex-husband, 
        leaving four young children, and then he took his own 
        life--four children left orphans. I will always believe 
        that if the judge could have heard her and seen her as 
        I did, maybe he could have done something to prevent 
        her death.

(Senate Judiciary Committee Hearing, April 23, 1996, statement 
of Katherine Prescott, at 25-26.)

    Victim statements at sentencing also serve valuable 
purposes. As the President's Task Force on Victims of Crime 

          Victims of violent crime should be allowed to provide 
        information at two levels. One, the victim should be 
        permitted to inform the person preparing the 
        presentence report of the circumstances and 
        consequences of the crime. Any recommendation on 
        sentencing that does not consider such information is 
        simply one-sided and inadequate. Two, every victim must 
        be allowed to speak at the time of sentencing. The 
        victim, no less than the defendant, comes to court 
        seeking justice. When 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.

(President's Task Force on Victims of Crime, Final Report 77 

    Courts have found victim information helpful in crafting an 
appropriate sentence. For instance, in United States v. 
Martinez, the District Court for the District of New Mexico 
stated that it ``has welcomed such [allocution] statements and 
finds them helpful in fashioning an appropriate sentence.'' 978 
F. Supp. 1442, 1452 (D.N.M. 1997). Likewise in United States v. 
Smith, 893 F. Supp. 187, 188 (E.D.N.Y. 1995), Judge Weinstein 
explained that the ``sensible process [of victim allocution] 
helps the court gauge the effects of the defendant's crime not 
only on the victim but on relevant communities.'' Victim 
statements can also have important cathartic effects. For 
example, a daughter who spoke at the sentencing of her step-
father for abusing her and her sister: ``When I read [the 
impact statement], it healed a part of me--to speak to [the 
defendant] and tell him how much he hurt.'' Senate Judiciary 
Committee Hearing, April 28, 1998, statement of Paul Cassell 
(quoting statement of victim). The sister also explained: ``I 
believe that I was helped by the victim impact statement. I got 
to tell my step-father what he did to me. Now I can get on with 
my life. I don't understand why victims don't have the same 
rights as criminals, to say the one thing that might help heal 
them.'' Id.
    Victims deserve the right to be heard by parole boards 
deciding whether to release prisoners. Without victim 
testimony, the boards may be unaware of the true danger 
presented by an inmate seeking parole. An eloquent example of 
this point can be found that was provided by Patricia Pollard, 
who testified before the Committee in 1996. She was abducted, 
raped, brutally beaten, and had her throat slashed with the 
jagged edge of a beer can, and left to die in the Arizona 
desert. Miraculously she survived. In moving testimony, she 
described for the Committee what happened next:

          Eric Mageary, the man who attacked me, was caught and 
        convicted. He was sentenced to 25 years to life in the 
        Arizona State Prison. While he was still 10 years short 
        of his minimum sentence he was released on parole, but 
        no one ever told me or gave me a chance to say what I 
        thought about it. The system had silenced me, just like 
        Mageary did that night outside of Flagstaff * * *
          But my story does not end with Eric Mageary's first 
        parole. Within less than a year he was back in prison, 
        his parole [r]evoked for drug crimes. Then in 1990, the 
        people of Arizona voted State constitutional rights for 
        crime victims. In 1993, Mageary again applied for 
        release from prison and, incredibly, he was again 
        released without any notice to me. I was again denied 
        any opportunity to tell the parole board about the 
        horrible crime or the need to protect others in that 
        community. They ignored my rights, but this time, I had 
        a remedy.
          The county attorney in Flagstaff filed an action to 
        stop the release and the court of appeals in Arizona 
        forced the board, because they had denied me my 
        constitutional rights, to hold another hearing and to 
        hear from me. This time, after they heard from me 
        directly and heard firsthand the horrible nature of the 
        offense, they voted for public safety and Mageary's 
        release was denied.

(Senate Judiciary Committee Hearing, April 23, 1996, statement 
of Patricia Pollard, at 31-32.)

    Voices such as Patricia Pollard's must not be silenced by 
the system. Victims deserve the right to be heard at 
appropriate times in the process.

4. Right to notice of release or escape

    The Committee heard testimony about Sharon Christian, 20 
years old, a young victim of rape who reported the crime and 
whose offender was arrested. She was doubly victimized when 2 
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 no 
opportunity to ask for a restraining order or for the court to 
consider the possibility of a bond. Senate Judiciary Committee 
Hearing, April 28, 1998, statement of Marlene Young.
    Defendants who are released from confinement often pose 
grave dangers to those against whom they have committed crimes. 
In a number of cases, notice of release has been literally a 
matter of life and death. As the Justice Department recently 

          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 of these cases, the 
        victims were unable to take precautions to save their 
        lives because they had not been notified of the 

(U.S. Department of Justice, Office for Victims of Crime, New 
Directions From the Field: Victims' Rights and Services for the 
21st Century 14 (1998).)

    The problem of lack of notice has been particularly 
pronounced in domestic violence and other acquaintance cases, 
in which the dynamics of the cycle of violence lead to tragic 
consequences. For example, on December 6, 1993, Mary Byron was 
shot to death as she left work. Authorities soon apprehended 
Donovan Harris, her former boyfriend, for the murder. Harris 
had been arrested 3 weeks earlier on charges of kidnaping Byron 
and raping her at gunpoint. A relative's payment of bond money 
allowed Harris to regain his freedom temporarily. No one 
thought to notify Byron or the police of her release. 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) 
(collecting this and other examples). The Committee concludes 
that victims deserve notice before violent offenders are 
    Recent technological changes have also simplified the 
ability to provide notice to crime victims. Today some 
jurisdictions use automated voice response technology to notify 
victims of when offenders are released. New York City, for 
example, recently implemented a system in which any victim with 
access to a telephone can register for notification simply by 
calling a number and providing an inmate's name, date of birth, 
and date or arrest. If an inmate is released, the victim 
receives periodic telephone calls for 4 days or until the 
victim confirms receiving the message by entering a personal 
code. Victim assistance providers and police have been trained 
to explain the system to victims. Other jurisdictions have 
developed other means of notification, including websites that 
allow victims to track the location of inmates at all times. 
While recent developments in these innovative jurisdictions are 
encouraging, notification needs to be made uniformly available 
for crime victims around the country.

5. Right to consideration of the victim's interest in a trial free from 
        unreasonable delay

    Today in the United States, criminal defendants enjoy a 
constitutionally protected right in the sixth amendment to a 
``speedy trial.'' This is as it should be, for criminal charges 
should be resolved as quickly as is reasonably possible. 
Defendants, however, are not the only ones interested in a 
speedy disposition of the case. Victims, too, as well as 
society as a whole, have an interest in the prompt resolution 
of criminal cases. ``Repeated continuances cause serious 
hardships and trauma for victims as they review and relive 
their victimization in preparation for trial, only to find the 
case has been postponed.'' U.S. Department of Justice, Office 
for Victims of Crime, New Directions From the Field: Victims' 
Rights and Services for the 21st Century 21 (1998). For 
victims, ``[t]he healing process cannot truly begin until the 
case can be put behind them. This is especially so for children 
and victims of sexual assault or any other case involving 
violence.'' President's Task Force on Victims of Crime, Final 
Report 75 (1982).
    The Supreme Court has generally recognized such interests 
in explaining that ``there is a societal interest in providing 
a speedy trial which exists separate from, and at times in 
opposition to, the interest of the accused.'' Barker v. Wingo, 
407 U.S. 514, 519 (1972). However, as two leading scholars have 
explained, while the Supreme Court has acknowledged the 
``societal interest'' in a speedy trial, ``[i]t is rather 
misleading to say * * * that this `societal interest' is 
somehow part of the [sixth amendment] right. The fact of the 
matter is that the Bill of Rights does not speak of the rights 
and interests of the government.'' Wayne R. LaFave and Jerold 
H. Israel, Criminal Procedure Sec. 18.1(b), at 787-88 (2d ed. 
1992). Nor does the Bill of Rights currently speak, as it 
should, to the rights and interests of crime victims. Of 
course, victim's rights to consideration of her interest will 
not overcome a criminal defendant's right to adequate 
assistance of counsel.
    Defendants have ample tactical reasons for seeking delays 
of criminal proceedings. Witnesses may forget details of the 
crime or move away, or the case may simply seem less important 
given the passage of time. Delays can also be used to place 
considerable pressure on victims to ask prosecutors to drop 
charges, particularly in cases where parents of children who 
have been sexually abused want to put matters behind them. 
Given natural human tendencies, efforts by defendants to 
unreasonably delay proceedings are frequently granted, even in 
the face of State constitutional amendments and statutes 
requiring otherwise.

6. Right to order of restitution

    Crime imposes tremendous financial burdens on victims of 
crime. The Bureau of Justice Statistics reports that each year 
approximately two million people in America are injured as the 
result of violent crime. Approximately 51 percent of the 
injured will require some medical attention, with 23 percent 
requiring treatment at a hospital with an average stay of 9 
days. While the true cost of crime to the victims is 
incalculable, the direct costs are simply staggering. In 1991, 
the direct economic costs of personal and household crime was 
estimated to be $19.1 billion, a figure that did not include 
costs associated with homicides.
    The perpetrators of these crimes need to be held 
accountable to repay such costs to the extent possible. Victims 
deserve restitution from offenders who have been convicted of 
committing crimes against them. The Committee has twice 
previously explained that:

          The principle of restitution is an integral part of 
        virtually every formal system of criminal justice, or 
        every culture and every time. It holds that, whatever 
        else the sanctioning power of society does to punish 
        its wrongdoers, it should also ensure that the 
        wrongdoer is required to the degree possible to restore 
        the victim to his or her prior state of well-being.

(S. Rep. 104-179, Senate Judiciary Committee, Victim 
Restitution Act of 1995, 104th Cong., 1st Sess. 12 (1995), 
quoting S. Rept. 97-532 at 30 (Judiciary Committee), Aug. 19, 
1982 (to accompany S. 2420).)

    Consistent with this principle, Federal and State courts 
have long had power to order restitution against criminal 
offenders. In practice, however, restitution orders are not 
entered as frequently as they should be. At the Federal level, 
for example, this Committee recently investigated Federal 
restitution procedures and found that restitution orders were 
often entered haphazardly and that ``much progress remains to 
be made in the area of victim restitution.'' S. Rep. 104-179, 
at 13. Similarly, a recent report from the U.S. Department of 
Justice concluded that ``[w]hile restitution has always been 
available via statute or common law, it remains one of the most 
underutilized means of providing crime victims with a 
measurable degree of justice. Evidence of this is apparent both 
in decisions to order restitution and in efforts to monitor, 
collect, and disperse restitution payment to victims.'' U.S. 
Department of Justice, Office for Victims of Crime, New 
Directions From the Field: Rights and Services for the 21st 
Century 357 (1998).
    The President's Task Force on Victims of Crime long ago 
recommended that ``[a] restitution order should be imposed in 
every case in which a financial loss is suffered, whether or 
not the defendant is incarcerated.'' President's Task Force on 
Victims of Crime, Final Report 79 (1982). As a step in this 
direction, in 1982 Congress passed the Victims Witness 
Protection Act (Pub. L. 97-291, codified at 18 U.S.C. 
Sec. Sec. 1501, 1503, 1505, 1510, 1512-1515, 3146, 3579, 3580). 
More recently, to respond to the problem of inadequate 
restitution at the Federal level, this Committee recently 
recommended, and Congress approved, the Mandatory Victim 
Restitution Act, codified at 18 U.S.C. Sec. 3663A and 3664. 
Valuable though this legislation may turn out to be, it applies 
only in Federal cases. To require restitution orders throughout 
the country, Federal constitutional protection of the victims' 
right to restitution is appropriate. Victims advocates in the 
field recently recommended that ``restitution orders should be 
mandatory and consistent nationwide.'' U.S. Department of 
Justice, Office for Victims of Crime, New Directions From the 
Field: Victims' Rights and Services for the 21st Century 364 
(1998)). Of course, there will be many cases in which a 
convicted offender will not be able to pay a full order of 
restitution. In such cases, realistic payment schedules should 
be established and victims appraised of how much restitution 
can realistically be expected to be collected. But even nominal 
restitution payments can have important benefits for victims. 
And by having a full restitution order in place, the offender 
can be held fully accountable for his crime should his 
financial circumstances unexpectedly improve.

7. Right to have safety considered

    Victims are often placed at risk whenever an accused or 
convicted offender is released from custody. The offender may 
retaliate against or harass the victim for vindictive reasons 
or to eliminate the victim as a possible witness in future 
proceedings. Not only are victims threatened by offenders, but 
recent reports from across the country suggest that the 
intimidation of victims and other witnesses is a serious 
impediment to effective criminal prosecution.
    Under current law, the safety of victims is not always 
appropriately considered by courts and parole boards making 
decisions about releasing offenders. Laws concerning whether 
victim safety is a factor in such decisions varies widely. The 
result, unsurprisingly, is that in too many cases offenders are 
released without due regard for victims. From witness after 
witness, the Committee heard testimony about the danger in 
which crime victims are placed when their attackers are 
released without any regard for their safety. Patricia Pollard, 
Dr. Marlene Young, and others each confirmed the real-life 
daily failures of the justice system.
    The Committee concludes that, in considering whether to 
release an accused or convicted offender, courts and parole 
boards should give appropriate consideration to the safety of 
victims. Of course, victim safety is not the only interest that 
these entities will need to consider in making these important 
decisions. But the safety of victims can be literally a life 
and death matter that should be evaluated along with other 
relevant factors. In evaluating the safety of victims, 
decisionmakers should also take into account the full range of 
measures that might be employed to protect the safety of 
victims. For example, a defendant in a domestic violence case 
might be released, but subject to a ``no contact'' order with 
the victim. Or a prisoner might be paroled, on the condition 
that he remain within a certain specified area. If directed to 
consider victim safety, our Nation's courts and parole boards 
are up to the task of implementing appropriate means to protect 
that safety.

8. Notice of these rights

    Victims will be in a better position to exercise the 
foregoing rights if they are provided notice for them. As a 
recent analysis concluded:

          Justice system and allied professions who come into 
        contact with victims should provide an explanation of 
        their rights and provide written information describing 
        victims' rights and the services available to them. 
        Furthermore, rights and services should be explained 
        again at a later time if the victim initially is too 
        traumatized to focus on the details of the information 
        being provided. Explanations of rights and services 
        should be reiterated by all justice personnel and 
        victim service providers who interact with the victim.

(U.S. Department of Justice, Office for Victims of Crime, New 
Directions From the Field: Victims' Rights and Services for the 
21st Century 14 (1998).)

    In Patricia Pollard's case in Arizona, the State Court of 
Appeals found that her State constitutional right to notice was 
the lynchpin for her right to notice and for her right to be 
heard. Victims deserve appropriate notice of their rights in 
the process.

                     V. SECTION-BY-SECTION ANALYSIS

    The Committee intends that the amendment guarantee the 
protection of and participation by crime victims in the 
criminal justice process.
    The Committee rejected an amendment that would have 
required the courts to resolve any conflict between the 
constitutional rights of defendants and those of victims, in 
favor of defendants rights. As the chief justice of the Texas 
Court of Criminal Office has written, ``[v]ictims' rights 
versus offenders'' rights is not a ``zero-sum-game.'' The 
adoption of rights for the victim need not come at the expense 
of the accused's rights. Chief Justice Richard Barajas and 
Scott Alexander Nelson, The Proposed Crime Victims' Federal 
Constitutional Amendment: Working Toward a Proper Balance, 49 
Baylor L. Rev. 1, 17 (1997) (internal citation omitted). The 
Crime Victims' Rights Amendment creates rights, not in 
opposition to those of defendants, but in parallel to them. The 
parallel goal in both instances is to erect protections from 
abuse by State actors. Thus, just as defendants have a sixth 
amendment right to a ``speedy trial,'' the Crime Victims' 
Rights Amendment extends to victims the right to consideration 
of their interest ``in a trial free from unreasonable delay.'' 
These rights cannot collide, since they are both designed to 
bring criminal proceedings to a close within a reasonable time. 
``[I]f any conflict were to emerge, courts would retain 
ultimate responsibility for harmonizing the rights at stake.'' 
Laurence H. Tribe and Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, L.A. Times, July 6, 1998, at B7.
    In this respect, the Committee found unpersuasive the 
contention that the courts will woodenly interpret the later-
adopted Crime Victims' Rights Amendment as superceded 
provisions in previously-adopted ones. Such a canon of 
construction can be useful when two measures address precisely 
the same subject. But no rigid rule of constitutional 
interpretation requires giving unblinking precedence to later 
enactments on separate subjects, and the Committee does not 
believe such a rule would--or should--be applied in this 
    Instead, the Committee trusts the courts to harmonize the 
rights of victims and defendants to ensure that both are 
appropriately protected. The courts have, for example, long 
experience in accommodating the rights of the press and the 
public to attend a trial with the rights of a defendant to a 
fair trial. The same sort of accommodations can be arrived at 
to dissipate any tension between victims' and defendants' 

Section 1. ``A victim of a crime of violence, as these terms may be 
        defined by law. * * *''

    The core provision of Senate Joint Resolution 44, as 
amended in Committee, is contained in section 1, which extends 
various enumerated rights to ``a victim of a crime of violence, 
as these terms may be defined by law.'' The ``law'' which will 
define a ``victim'' (as well as ``crime of violence'') will 
come from the courts interpreting the elements of criminal 
statutes until definitional statutes are passed explicating the 
term. In this sense, the amendment should be regarded as ``self 
executing''--that is, it will take effect even without a 
specific legislative definition. The Committee anticipates that 
Congress will quickly pass an implementing statute defining 
``victim'' for Federal proceedings. Moreover, nothing removes 
from the States their plenary authority to enact definitional 
laws for purposes of their own criminal system. Such 
legislative definition is appropriate because criminal conduct 
depends on State and Federal law. Since the legislatures define 
what is criminal conduct, it makes equal sense for them to also 
have the ability to further refine the definition of 
    In determining how to structure a ``victim'' definition, 
ample precedents are available. To cite but one example, 
Congress has previously defined a ``victim'' of a crime for 
sentencing purposes as ``any individual against whom an offense 
has been committed for which a sentence is to be imposed.'' 
Fed. R. Crim. Pro. 32(f). The Committee anticipates that a 
similar definition focusing on the criminal charges that have 
been filed in court will be added to the Federal implementing 
legislation and, in all likelihood, in State legislation as 
    In most cases, determining who is the victim of a crime 
will be straightforward. The victims of robbery, and sexual 
assault are, for example, not in doubt. The victim of a 
homicide is also not in doubt, but the victim's rights in such 
cases will be exercised by a surviving family member or other 
appropriate representative, as will be defined by law. 
Similarly, in the case of a minor or incapacitated victim, an 
appropriate representative (not accused of the crime or 
otherwise implicated in its commission) will exercise the 
rights of victims.
    The amendment extends broadly to all victims of a ``crime 
of violence.'' ``Crimes of violence'' likely will include all 
forms of homicide (including voluntary and involuntary 
manslaughter and vehicular homicide), sexual assault, 
kidnaping, robbery, assault, mayhem, battery, extortion 
accompanied by threats of violence, carjacking, vehicular 
offenses (including driving while intoxicated) which result in 
personal injury, domestic violence, and other similarcrimes. A 
``crime of violence'' can arise without regard to technical 
classification of the offense as a felony or a misdemeanor. It should 
also be obvious that a ``crime of violence'' can include not only acts 
of consummated violence but also of intended, threatened, or implied 
violence. The unlawful displaying of a firearm or firing of a bullet at 
a victim constitutes a ``crime of violence'' regardless of whether the 
victim is actually injured. Along the same lines, conspiracies, 
attempts, solicitations and other comparable crimes to commit a crime 
of violence could be considered ``crimes of violence'' for purposes of 
the amendment if identifiable victims exist. Similarly, some crimes are 
so inherently threatening of physical violence that they could be 
``crimes of violence'' for purposes of the amendment. Burglary, for 
example, is frequently understood to be a ``crime of violence'' because 
of the potential for armed or other dangerous confrontation. See United 
States v. Guadardo, 40 F.3d 102 (5th Cir. 1994); United States v. 
Flores, 875 F.2d 1110 (5th Cir. 1989). Similarly, sexual offenses 
against a child, such as child molestation, can be ``crimes of 
violence'' because of the fear of the potential for force which is 
inherent in the disparate status of the perpetrator and victim and also 
because evidence of severe and persistent emotional trauma in its 
victims gives testament to the molestation being unwanted and coercive. 
See United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993). Sexual 
offenses against other vulnerable persons would similarly be treated as 
``crimes of violence,'' as would, for example, forcible sex offenses 
against adults and sex offenses against incapacitated adults. Finally, 
an act of violence exists where the victim is physically injured, is 
threatened with physical injury, or reasonably believes he or she is 
being physically threatened by criminal activity of the defendant. For 
example, a victim who is killed or injured by a driver who is under the 
influence of alcohol or drugs is the victim of a crime of violence, as 
is a victim of stalking or other threats who is reasonably put in fear 
of his or her safety. Also, crimes of arson involving threats to the 
safety of persons could be ``crimes of violence.''
    Of course, not all crimes will be ``violent'' crimes 
covered by the amendment. For example, the amendment does not 
confer rights on victims of larceny, fraud, and other similar 
offenses. At the same time, many States have already extended 
rights to victims of such offenses and the amendment in no way 
restricts such rights. In other words, the amendment sets a 
national ``floor'' for the protecting of victims rights, not 
any sort of ``ceiling.'' Legislatures, including Congress, are 
certainly free to give statutory rights to all victims of 
crime, and the amendment will in all likelihood be an occasion 
for victims' statutes to be re-examined and, in some cases, 
    Because of the formulation used in the amendment--``a 
victim of a crime of violence''--it is presumed that there must 
be an identifiable victim. Some crimes, such as drug or 
espionage offenses, do not ordinarily have such an identifiable 
victim and therefore would not ordinarily be covered by the 
amendment. However, in some unusual cases, a court or 
legislature might conclude that these offenses in fact 
``involved'' violence against an identifiable victim. For 
example, treason or espionage against the United States 
resulting in death or injury to an American government official 
might produce an identifiable victim protected by the 

``To reasonable notice of * * * any public proceedings relating to the 

    To make victims aware of the proceedings at which their 
rights can be exercised, this provision requires that victims 
be notified of public proceedings relating to a crime. 
``Notice'' can be provided in a variety of fashions. For 
example, the Committee was informed that some States have 
developed computer programs for mailing form notices to victims 
while other States have developed automated telephone 
notification systems. Any means that provides reasonable notice 
to victims is acceptable. ``Reasonable'' notice is any means 
likely to provide actual notice to a victim. Heroic measures 
need not be taken to inform victims, but due diligence is 
required by government actors. It would, of course, be 
reasonable to require victims to provide an address and keep 
that address updated in order to receive notices. 
``Reasonable'' notice would be notice that permits a meaningful 
opportunity for victims to exercise their rights. In rare mass 
victim cases (i.e., those involving hundreds of victims), 
reasonable notice could be provided to mean tailored to those 
unusual circumstances, such as notification by newspaper or 
television announcement.
    Victims are given the right to receive notice of 
``proceedings.'' Proceedings are official events that take 
place before, for example, trial and appellate courts 
(including magistrates and special masters) and parole boards. 
They include, for example, hearings of all types such as motion 
hearings, trials, and sentencings. They do not include, for 
example, informal meetings between prosecutors and defense 
attorneys. Thus, while victims are entitled to notice of a 
court hearing on whether to accept a negotiated plea, they are 
not entitled to notice of an office meeting between a 
prosecutor and a defense attorney to discuss such an 
    Victims' rights under this provision are also limited to 
``public'' proceedings. Some proceedings, such as grand jury 
investigations, are not open to the public and accordingly 
would not be open to the victim. Other proceedings, while 
generally open, may be closed in some circumstances. For 
example, while plea proceedings are generally open to the 
public, a court might decide to close a proceeding in which an 
organized crime underling would plead guilty and agree to 
testify against his bosses. Another example is provided by 
certain national security cases in which access to some 
proceedings can be restricted. See The Classified Information 
Procedures Act, 18 U.S.C. app. 3. A victim would have no 
special right to attend. The amendment works no change in the 
standards for closing hearings, but rather simply recognizes 
that such nonpublic hearings take place. Of course, nothing in 
the amendment would forbid the court, in its discretion, to 
allow a victim to attend even such a nonpublic hearing.
    The public proceedings are those ``relating to the crime.'' 
Typically these would be the criminal proceedings arising from 
the filed criminal charges, although other proceedings might 
also relate to the crime. Thus, the right applies not only to 
initial hearings on a case, but also rehearings, hearing at an 
appellate level, and any case on a subsequent remand. It also 
applies to multiple hearings, such as multiple bail hearings. 
In cases involving multiple defendants, notice would be given 
as to proceedings involving each defendant.

``* * * not to be excluded from * * * any public proceedings relating 
        to the crime''

    Victims are given the right ``not to be excluded'' from 
public proceedings. This builds on the 1982 recommendation from 
the President's Task Force on Victims of Crime that victims 
``no less than the defendant, have a legitimate interest in the 
fair adjudication of the case, and should therefore, as an 
exception to the general rule providing for the exclusion of 
witnesses, be permitted to be present for the entire trial.'' 
President's Task Force on Victims of Crime, Final Report 80 
    The right conferred is a negative one--a right ``not to be 
excluded''--to avoid the suggestion that an alternative 
formulation--a right ``to attend''--might carry with it some 
government obligation to provide funding, to schedule the 
timing of a particular proceeding according to the victim's 
wishes, or otherwise assert affirmative efforts to make it 
possible for a victim to attend proceedings. Accord Ala. Code 
Sec. 15-14-54 (right ``not [to] be excluded from court or 
counsel table during the trial or hearing or any portion 
thereof * * * which in any way pertains to such offense''). The 
amendment, for example, would not entitle a prisoner who was 
attacked in prison to a release from prison and plane ticket to 
enable him to attend the trial of his attacker. This example is 
important because there have been occasional suggestions that 
transporting prisoners who are the victims of prison violence 
to courthouses to exercise their rights as victims might create 
security risks. These suggestions are misplaced, because the 
Crime Victims' Rights Amendment does not confer on prisoners 
any such rights to travel outside prison gates. Of course, as 
discussed below, prisoners no less than other victims will have 
a right to be ``heard, if present, and to submit a statement'' 
at various points in the criminal justice process. Because 
prisoners ordinarily will not be ``present,'' they will 
exercise their rights by submitting a ``statement.'' This 
approach has been followed in the states. See, e.g., Utah Code 
Ann. Sec. 77-38-5(8); Ariz. Const. Art. II, Section 2.1.
    A victim's right not to be excluded will parallel the right 
of a defendant to be present during criminal proceedings. See 
Diaz v. United States, 223 U.S. 442, 454-55 (1912). It is 
understood that defendants have no license to engage in 
disruptive behavior during proceedings. See, e.g., Illinois v. 
Allen, 397 U.S. 337 (1977); Foster v. Wainwright, 686 F.2d 
1382, 1387 (11th Cir. 1982). Likewise, crime victims will have 
no right to engage in disruptive behavior and, like defendants, 
will have to follow proper court rules, such as those 
forbidding excessive displays of emotion or visibly reacting to 
testimony of witnesses during a jury trial.

Right ``to be heard, if present, and to submit a statement at all 
        public proceedings to determine a conditional release from 
        custody, an acceptance of a negotiated plea, or a sentence. * * 

    The amendment confers on crime victims a right to be heard 
by the relevant decision makers at three critical points in the 
criminal justice process before the final decisions are made.
    First, crime victims will have the right to be heard at 
proceedings ``to determine a conditional release from 
custody.'' Under this provision, for example, a victim of 
domestic violence will have the opportunity to warn the court 
about possible violence if the defendant is released on bail, 
probation, or parole. A victim of gang violence will have the 
opportunity to warn about the possibility of witness 
intimidation. The court will then evaluate this information in 
the normal fashion in determining whether to release a 
defendant and, if so, under what conditions. Victims have no 
right to ``veto'' any release decision by a court, simply to 
provide relevant information that the court can consider in 
making its determination about release.
    The amendment extends the right to be heard to proceedings 
determining a ``conditional release'' from custody. This phrase 
encompasses, for example, hearings to determine any pre-trial 
or post-trial release (including comparable releases during or 
after an appeal) on bail, personal recognizance, to the custody 
of a third person, or under any other conditions, including 
pre-trial diversion programs. Other examples of conditional 
release include work release and home detention. It also 
includes parole hearings or their functional equivalent, both 
because parole hearings have some discretion in releasing 
offenders and because releases from prison are typically 
subject to various conditions such as continued good behavior. 
It would also include a release from a secure mental facility 
for a criminal defendant or one acquitted on the grounds of 
insanity. A victim would not have a right to speak, by virtue 
of this amendment, at a hearing to determine ``unconditional'' 
release. For example, a victim could not claim a right to be 
heard at a hearing to determine the jurisdiction of the court 
or compliance with the governing statute of limitations, even 
though a finding in favor of the defendant on these points 
might indirectly and ultimately lead to the ``release'' of the 
defendant. Similarly, there is no right to be heard when a 
prisoner is released after serving the statutory maximum 
penalty, or the full term of his sentence. In such 
circumstances, there would be no proceeding to ``determine'' a 
release in such situations and the release would also be 
without condition if the court's authority over the prisoner 
had expired. The victim would, however, be notified of such a 
release, as explained in connection with the victims' right to 
notice of a release.
    Second, crime victims have the right to be heard at any 
proceedings to determine ``an acceptance of a negotiated 
plea.'' This gives victims the right to be heard before the 
court accepts a plea bargain entered into by the prosecution 
and the defense before it becomes final. The Committee expects 
that each State will determine for itself at what stage this 
right attaches. It may be that a State decides the right does 
not attach until sentencing if the plea can still be rejected 
by the court after the pre-sentence investigation is completed. 
As the language makes clear, the right involves being heard 
when the court holds its hearing on whether to accept a plea. 
Thus, victims do not have the right to be heard by prosecutors 
and defense attorneys negotiating a deal. Nonetheless, the 
Committee anticipates that prosecutors may decide, in their 
discretion, to consult with victims before arriving at a plea. 
Such an approach is already a legal requirement in many States, 
see National Victim Center, 1996 Victims' Rights Sourcebook 
127-31 (1996), is followed by many prosecuting agencies, see, 
e.g., Senate Judiciary Committee Hearing, April 28, 1998, 
statement of Paul Cassell, and has been encouraged as sound 
prosecutorial practice. See U.S. Department of Justice, Office 
for Victims of Crime, New Directions from the Field: Victims' 
Rights and Services for the 21st Century 15-16 (1998). This 
trend has also been encouraged by the interest of some courts 
in whether prosecutors have consulted with the victim before 
arriving at a plea. Once again, the victim is given no right of 
veto over any plea. No doubt, some victims may wish to see 
nothing less than the maximum possible penalty (or minimum 
possible) for a defendant. Under the amendment, the court will 
receive this information, along with that provided by prosecutors and 
defendants, and give it the weight it believes is appropriate deciding 
whether to accept a plea. The decision to accept a plea is typically 
vested in the court and therefore the victims' right extends to these 
proceedings. See, e.g., Fed. R. Crim. Pro. 11(d)(3); see generally 
Douglas E. Beloof, Victims in Criminal Procedure: A Casebook 7-30 to 7-
63 (forthcoming N.C. press 1998).
    Third, crime victims have the right to be heard at any 
proceeding to determine a ``sentence.'' This provision 
guarantees that victims will have the right to ``allocute'' at 
sentencing. Defendants have a constitutionally protected 
interest in personally addressing the court. See Green v. 
United States, 365 U.S. 301 (1961). This provision would give 
the same rights to victims, for two independent reasons. First, 
such a right guarantees that the sentencing court or jury will 
have full information about the impact of a crime, along with 
other information, in crafting an appropriate sentence. The 
victim would be able to provide information about the nature of 
the offense, the harm inflicted, and the attitude of the 
offender. Second, the opportunity for victims to speak at 
sentencing can sometimes provide a powerful catharsis. See 
United States v. Smith, 893 F. Supp. 187, 188 (E.D.N.Y. 1995), 
United States v. Hollman Cheung, 952 F. Supp. 148, 151 
(E.D.N.Y. 1997). Because the right to speak is based on both of 
these grounds, a victim will have the right to be heard even 
when the judge has no discretion in imposing a mandatory prison 
    State and Federal statutes already frequently provide 
allocution rights to victims. See, e.g., Fed. R. Evid. 32(c), 
Ill. Const. Art. 1, Sec. 8.1(a)(4). The Federal amendment would 
help to insure that these rights are fully protected. The 
result is to enshrine in the Constitution the Supreme Court's 
decision in Payne v. Tennessee, 501 U.S. 808 (1991), 
recognizing the propriety of victim testimony in capital 
proceedings. At the same time, the victim's right to be heard 
at sentencing will not be unlimited, just as the defendant's 
right to be heard at sentencing is not unlimited today. 
Congress and the States remain free to set certain limits on 
what is relevant victim impact testimony. For example, a 
jurisdiction might determine that a victims' views on the 
desirability or undesirability of a capital sentence is not 
relevant in a capital proceeding. Cf. Robison v. Maynard, 943 
F.2d 1216 (10th Cir. 1991) (concluding that victim opinion on 
death penalty not admissible). The Committee does not intend to 
alter or comment on laws existing in some States allowing for 
victim opinion as to the proper sentence. Also, a right to have 
victim impact testimony heard at sentencing does not confer any 
right to have such testimony heard by a jury at trial. See 
Sager v. Maass, 907 F. Supp. 1412, 1420 (D. Or. 1995) (citing 
cases). The victim's right to be heard does not extend to the 
guilt determination phase of trials, although victims may, of 
course, be called as a witness by either party. Cf. George P. 
Fletcher, With Justice for Some: Victims' Rights in Criminal 
Trials 248-50 (1995).
    The victim's right is one to ``be heard, if present, and to 
submit a statement.'' The right to make an oral statement is 
conditioned on the victim's presence in the courtroom. As 
discussed above, it does not confer on victims a right to have 
the Government transport them to the relevant proceeding. Nor 
does it give victims any right to ``filibuster'' any hearing. 
As with defendants' existing rights to be heard, a court may 
set reasonable limits on the length and content of statements. 
At the same time, victims should always be given the power to 
determine the form of the statement. Simply because a 
decisionmaking body, such as the court or parole board, has a 
prior statement of some sort on file does not mean that the 
victim should not again be offered the opportunity to make a 
further statement.
    Even if not present, the victim is entitled to submit a 
``statement'' at the specified hearings for the consideration 
of the court. The Committee has not limited the word statement 
to ``written'' statements, because the victim may wish to 
communicate in other appropriate ways. For example, a victim 
might desire to present an impact statement through a videotape 
or via an Internet message over a system established by the 
courts. The term ``statement'' is sufficiently flexible to 
encompass such communications.
    The right to be heard is also limited to ``such 
proceedings,'' that is, to ``such [public] proceedings.'' As 
discussed previously at greater length, a victim has no right 
to be heard at a proceeding that the court has properly closed 
under the existing standards governing court closures.

Right to ``the foregoing rights at a parole proceeding that is not 
        public, to the extent those rights are afforded to the 
        convicted offender

    The right to be heard at public proceedings to determine a 
conditional release confers on victims the right to be heard at 
public parole proceedings. In some jurisdictions, however, 
parole decisions are not made in public proceedings, but rather 
in other ways. For such jurisdictions, the amendment places 
victims on equal footing with defendants. If defendants have 
the right to provide communications with the paroling or 
releasing authority, then victims do as well. For example, in 
some jurisdictions the parole board might review various 
folders on prisoners in making a parole decision. If the 
defendant is given an opportunity to provide information for 
inclusion in those folders, so will the victim. The phrase 
``the foregoing rights'' encompasses all of the previously 
listed rights in the amendment, including the right to notice, 
to not be excluded, and to be heard, if present, and to submit 
a statement.
    The term ``parole'' is intended to be interpreted broadly. 
Many jurisdictions are moving away from ``parole'' but still 
have a form of conditional release. The term also encompasses 
comparable hearings on conditional release from secure mental 

Right to ``reasonable notice of a release or escape from custody 
        relating to the crime''

    To ensure that the victim is not surprised or threatened by 
an escaped or released prisoner, the amendment gives victims a 
right to reasonable notice of such escape or release. As with 
other notice rights in the amendment, the requirement is not 
one of extraordinary measures, but instead of ``reasonable'' 
notice. As with the phrase used earlier in the amendment, 
``reasonable'' notice is one likely to provide actual notice. 
New technologies are becoming more widely available that will 
simplify the process of providing this notice. For example, 
automated voice response technology exists that can be 
programmed to place repeated telephone calls to victims whenever a 
prisoner is released, which would be reasonable notice of the release. 
As technology improves in this area, what is ``reasonable'' may change 
as well. ``Reasonable'' notice would also need to be considered in 
light of the circumstances surrounding the case. While mailing a letter 
would be ``reasonable'' notice of an upcoming parole release date, it 
would not be reasonable notice of the escape of a dangerous prisoner 
bent on taking revenge on his accuser.
    The requirement of notice is limited to a ``release from 
custody.'' Thus, victims are not entitled to notice under this 
amendment if, for example, a prisoner is simply moved from one 
custodial facility to another, reclassified in terms of his 
security level, or allowed to participate in a supervised work 
detail outside the prison walls. Victims are, however, entitled 
to notice of any government decision to finally or 
conditionally release a prisoner, such as allowing a prisoner 
to enter a noncustodial work release program or to take a 
weekend furlough in his old home town.
    The release must be one ``relating to the crime.'' This 
includes not only a release after a criminal conviction but 
also, for example, a release of a defendant found not guilty of 
a crime by reason of insanity and then hospitalized in custody 
for further treatment, or a release pursuant to a habitual sex 
offender statute.

Right to ``consideration of the interest of the victim that any trial 
        be free from unreasonable delay''

    Just as defendants currently have a right to a ``speedy 
trial,'' this provision will give victims a protected right in 
having their interests to a reasonably prompt conclusion of a 
trial considered. The right here requires courts to give 
``consideration'' to the victims' interest along with other 
relevant factors at all hearings involving the trial date, 
including the initial setting of a trial date and any 
subsequent motions or proceedings that result in delaying that 
date. This right also will allow the victim to ask the court 
to, for instance, set a trial date if the failure to do so is 
unreasonable. Of course, the victims' interests are not the 
only interests that the court will consider. Again, while a 
victim will have a right to be heard on the issue, the victim 
will have no right to force an immediate trial before the 
parties have had an opportunity to prepare. Similarly, in some 
complicated cases either prosecutors or defendants may have 
unforeseen and legitimate reasons for continuing a previously 
set trial or for delaying trial proceedings that have already 
commenced. But the Committee has heard ample testimony about 
delays that, by any measure, were ``unreasonable.'' See, e.g., 
Senate Judiciary Committee Hearing, April 16, 1997, statement 
of Paul Cassell, at 115-16. This right will give courts the 
clear constitutional mandate to avoid such delays.
    In determining what delay is ``unreasonable,'' the courts 
can look to the precedents that exist interpreting a 
defendant's right to a speedy trial. These cases focus on such 
issues as the length of the delay, the reason for the delay, 
any assertion of a right to a speedy trial, and any prejudice 
to the defendant. See Barker v. Wingo, 407 U.S. 514, 530-33 
(1972). Courts will no doubt develop a similar approach for 
evaluating victims' claims. In developing such an approach, 
courts will undoubtably recognize the purposes that the 
victim's right is designed to serve. Cf. Barker v. Wingo, 407 
U.S. 514, 532 (1972) (defendant's right to a speedy trial must 
be ``assessed in the light of the interest of defendant which 
the speedy trial right was designed to protect''). The 
Committee intends for this right to allow victims to have the 
trial of the accused completed as quickly as is reasonable 
under all of the circumstances of the case, giving both the 
prosecution and the defense a reasonable period of time to 
prepare. The right would not require or permit a judge to 
proceed to trial if a criminal defendant is not adequately 
represented by counsel.
    The Committee also anticipates that more content may be 
given to this right in implementing legislation. For example, 
the Speedy Trial Act of 1974 (Pub. L. 93-619 (amended by Pub. 
L. 96-43), codified at 18 U.S.C. Sec. Sec. 3152, 3161) already 
helps to protect a defendant's speedy trial right. Similar 
legislative protection could be extended to the victims' new 
parallel right.

Right to ``an order of restitution from the convicted offender''

    This provision recognizes that an offender should be held 
responsible for the harm his crime caused, through an order of 
restitution at sentencing. The Committee has previously 
explained this philosophy in some detail in connection with the 
Mandatory Victim Restitution Act, codified at 18 U.S.C. 
Sec. Sec. 3663A and 3664, and intends that this right operate 
in a similar fashion. The relevant details will be spelled out 
under the resulting case law or, more likely, statutes to 
implement the amendment. However, this amendment does not 
confer on victims any rights to a specific amount of 
restitution, leaving the court free to order nominal 
restitution if there is no hope of satisfying the order nor any 
rights with regard to a particular payment schedule.
    The right conferred on victims is one to an ``order'' of 
restitution. With the order in hand, questions of enforcement 
of the order and its priority as against other judgments are 
left to the applicable Federal or State law. No doubt in a 
number of cases the defendant will lack the resources to 
satisfy the full order. In others, however, the defendant may 
have sufficient assets to do so and this right will place such 
an order in the victim's hands. The right is, of course, 
limited to ``convicted'' defendants, that is, those who pled 
guilty, are found guilty, or enter a plea of no contest. Even 
before a conviction, however, courts remain free to take 
appropriate steps to prevent a defendant's deliberate 
dissipation of his assets for the purpose of defeating a 
restitution order, as prescribed by current law.

A right to ``consideration for the safety of the victim in determining 
        any conditional release from custody relating to the crime''

    This right requires judges, magistrates, parole boards, and 
other such officials to consider the safety of the victim in 
determining any conditional release. As with the right to be 
heard on conditional releases, this right will extend to 
hearings to determine any pre-trial or post-trial release on 
bail, personal recognizance, to the custody of a third person, 
on work release, to homedetention, or under any other 
conditions as well as parole hearings or their functional equivalent. 
At such hearings, the decisionmaker must give consideration to the 
safety of the victim in determining whether to release a defendant and, 
if so, whether to impose various conditions on that release to help 
protect the victims' safety, such as requiring the posting of higher 
bail or forbidding the defendant to have contact with the victim. These 
conditions can then be enforced through the judicial processes 
currently in place.
    This right does not require the decisionmaker to agree with 
any conditions that the victim might propose (or, for that 
matter, to agree with a victim that defendant should be 
released unconditionally). Nor does this right alter the eight 
amendment's prohibition of ``excessive bail'' or any other due 
process guarantees to which a defendant or prisoner is entitled 
in having his release considered. The Supreme Court, however, 
has already rejected constitutional challenges to pretrial 
detention, in appropriate circumstances, to protect community 
safety, including the safety of victims. See United States v. 
Salerno, 481 U.S. 739 (1987). This right simply guarantees 
victim input into a process that has been constitutionally 
validated. -
    Custody here includes mental health facilities. This is 
especially important as sex offenders are frequently placed in 
treatment facilities, following or in lieu of prison.

Right to ``reasonable notice of the rights established by this 

    In the special context of the criminal justice system, 
victims particularly need knowledge of their rights. Victims 
are thrust into the vortex of complicated legal proceedings. 
Accordingly, the final right guaranteed by the amendment is the 
right to notice of victims rights. Various means have been 
devised for providing such notice in the States, and the 
Committee trusts that these means can be applied to the Federal 
amendment with little difficulty.
    Once again, ``reasonable'' notice is one likely to provide 
actual notice. In cases involving victims with special needs, 
such as those who are hearing impaired or illiterate, officials 
may have to make special efforts in order for notice to be 
reasonable. Notice, whether of rights, proceedings, or events, 
should be given as soon as practicable to allow victims the 
greatest opportunity to exercise their rights.

Section 2. Only the victim or the victim's lawful representative shall 
        have standing to assert the rights established by this article

    This provision confers on victims and their lawful 
representatives standing to assert their rights. The term 
``standing'' is used here in its conventional legal sense as 
giving victims the opportunity to be heard about their 
treatment, that is, to have the merits of their claims 
considered. For example, under this provision victims have the 
right to challenge their exclusion from the trial of the 
accused perpetrators of the crime. This overrules the approach 
adopted by some courts of denying victims an opportunity to 
raise claims about their treatment. See, e.g., United States v. 
 McVeigh, 106 F.3d 325, 334-35 (10th Cir. 1997) (finding 
victims of the Oklahoma City bombing lacked standing to 
challenge their exclusion from certain proceedings). The 
provision is phrased in exclusive terms--``Only the victim or 
the victim's lawful representatives''--to avoid any suggestion 
that other, potentially intermeddling, persons have the right 
to be heard in criminal proceedings, and to avoid the 
suggestion that the accused or convicted offender has standing 
to assert the rights of the victim.
    There will be circumstances in which victims find it 
desirable to have a representative assert their rights or make 
statements on their behalf. This provision recognizes the right 
of a competent victim to choose a representative to exercise 
his or her rights, as provided by law. Typically victims' 
rights statutes have provided a means through which victims can 
select their representatives without great difficulty.
    Other ``lawful representatives'' will exist in the context 
of victims who are deceased, are children, or are otherwise 
incapacitated. In homicide cases, victim's rights can be 
asserted by surviving family members or other persons found to 
be appropriate by the court. This is the approach that has 
uniformly been adopted in victims' rights statutes applicable 
in homicide cases, thus insuring that in this most serious of 
crimes a voice for a victim continues to be heard. Of course, 
in such cases the ``lawful representative'' would not 
necessarily be someone who was the executor of the estate, but 
rather someone involved in issues pertaining to the criminal 
justice process. In cases involving child victims, a parent, 
guardian or other appropriate representative can do the same. 
For victims who are physically or mentally unable to assert 
their rights, an appropriate representative can assert the 
    In all circumstances involving a ``representative,'' care 
must be taken to ensure that the ``representative'' truly 
reflects the interests--and only the interests--of the victim. 
In particular, in no circumstances should the representative be 
criminally involved in the crime against the victim. The 
mechanics for dealing with such issues and, more generally, for 
the designation of ``lawful'' representatives will be provided 
by law--that is, by statute in relevant jurisdiction, or in its 
absence by court rule or decision.

``Nothing in this article shall provide grounds to stay or continue any 
        trial, reopen any proceeding or invalidate any ruling, except 
        with respect to conditional release or restitution or to 
        provide rights guaranteed by this article in future 
        proceedings, without staying or continuing a trial.''

    This provision is designed to protect completed criminal 
proceedings against judicially-created remedies that might 
interfere with finality. At the same time, the provision leaves 
open appropriate avenues for victims to challenge violations of 
their rights as well as the ability of Congress and the States 
to provide additional remedies.
    In drafting the amendment, the Committee was faced with 
balancing the competing concerns of giving victims an effective 
means of enforcing their rights and of ensuring that court 
decisions retain a reasonable degree of finality. The Committee 
was concerned that, if victims could challenge and overturn all 
criminal justice proceedings at which their rights were 
violated, the goal of finality, and conceivably other goals, 
could be seriously frustrated. On the other hand, the Committee 
recognized that if victims were never given an opportunity to 
challengepreviously-taken judicial actions, victims rights 
might remain routinely ignored. The Committee's solution to the dilemma 
was to leave the issue of the most controversial remedies to the 
legislative branches. These branches have superior fact finding 
capabilities, as well as abilities to craft necessary exceptions and 
compromises. Thus, the provision provides that ``Nothing in this 
article'' shall provide grounds for victims to challenge and overturn 
certain previously taken judicial actions.
    The provision prevents judicially-created remedies ``to 
stay or continue any trial'' because of the concern that a 
broad judicial remedy might allow victims to inappropriately 
interfere with trials already underway. The provision also 
prevents judicially-created remedies to ``reopen any proceeding 
or invalidate any ruling'' because of similar finality 
concerns. At the same time, however, the provision recognizes 
that victims can reopen earlier rulings ``with respect to 
conditional release or restitution.'' In these particular 
areas, judicially created rules will allow victims to 
challenge, for example, a decision made to release a defendant 
on bail without consideration of the victim's safety. 
Similarly, victims are specifically allowed to challenge a 
ruling ``to provide rights guaranteed by this article in future 
proceedings, without staying or continuing a trial.'' For 
example, in what will presumably be the rare case of a victim 
improperly excluded from a trial, a victim could seek an 
immediate expedited review of the decision under the existing 
rules allowing for expedited review, seeking admission to 
``future proceedings,'' that is, to upcoming days of the trial. 
Similarly, a victim who wishes to challenge a ruling that she 
is not entitled to notice of a release or escape of a prisoner 
can challenge that ruling until the release or escape takes 
place. Of course, limits on the ability of victims to 
``invalidate'' a court ruling do not forbid a victim from 
asking a court to reconsider its own ruling or restrict a court 
from changing its own ruling.

``Nothing in this article shall give rise to or authorize the creation 
        of a claim for damages against the United States, a State, a 
        political subdivision, or a public officer or employee.''

    This provision imposes the conventional limitations on 
victims' rights, providinsg that the amendment does not give 
rise to any claim for money damages against governmental 
entities or their employees or agents. While some existing 
victims' rights provisions provide for the possibility of 
damage actions or fines as an enforcement mechanism in limited 
circumstances, see, e.g., Ariz. Rev. Stat. Ann. Sec. 13-4437(B) 
(authorizing suit for ``intentional, knowing, or grossly 
negligent violation'' of victims rights), the Committee does 
not believe that consensus exists in support of such a 
provision in a Federal amendment. Similar limiting language 
barring damages actions is found in many state victims' rights 
amendments. See, e.g., Kan. Const. Art. 15, Sec. 15(b) 
(``Nothing in this section shall be construed as creating a 
cause of action for money damages against the state. * * *''); 
Mo Const. Art. 1, Sec. 32(3), (5) (similar); Tex. Const. Art. 
I, Sec. 30(e) (``The legislature may enact laws to provide that 
a judge, attorney for the State, peace officer, or law 
enforcement agency is not liable for a failure or inability to 
provide a right enumerated in this section''). The limiting 
language in the provision also prevents the possibility that 
the amendment might be construed by courts as requiring the 
appointment of counsel at State expense to assist victims. Cf. 
Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring counsel 
for indigent criminal defendants).
    This provision in no way affects--by way of enlargement or 
contraction--any existing rights that may exist now or be 
created in the future independent of the amendment.

The Congress shall have the power to enforce this article by 
        appropriate legislation

    This provision is similar to existing language found in 
section 5 of the 14th amendment to the Constitution. This 
provision will be interpreted in similar fashion to allow 
Congress to ``enforce'' the rights, that is, to 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.''

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

    Constitutional rights are not absolute. There is no first 
amendment right, for example, to yell ``Fire!'' in a crowded 
theater. Courts interpreting the Crime Victims' Rights 
Amendment will no doubt give a similar, commonsense 
construction to its provisions.
    To assist in providing necessary flexibility for handling 
unusual situations, the exceptions language in the amendment 
explicitly recognizes that in certain rare circumstances 
exceptions may need to be created to victims rights. By way of 
example, the Committee expects the language will encompass the 
following situations.
    First, in mass victim cases, there may be a need to provide 
certain limited exceptions to victims rights. For instance, for 
a crime perpetrated against hundreds of victims, it may be 
impractical or even impossible to give all victims the right to 
be physically present in the courtroom. In such circumstances, 
an exception to the right to be present may be made, while at 
the same time providing reasonable accommodation for the 
interest of victims. Congress, for example, has specified a 
close-circuit broadcasting arrangement that may be applicable 
to some such cases. Similar restrictions on the number of 
persons allowed to present oral statements might be appropriate 
in rare cases involving large numbers of victims.
    Second, in some cases of domestic violence, the dynamics of 
victim-offender relationships may require some modification of 
otherwise typical victims' rights provisions. This provision 
offers the flexibility to do just that.
    Third, situations may arise involving intergang violence, 
where notifying the member of a rival gang of an offenders' 
impending release may spawn retaliatory violence. Again, 
thisprovision provides flexibility for dealing with such situations.
    While this exceptions clause adds some flexibility, the 
Committee-reported amendment provides that exceptions are 
permitted only for a ``compelling'' interest. In choosing this 
standard, formulated by the U.S. Supreme Court, the Committee 
seeks to ensure that the exception does not swallow the rights. 
The Committee rejected proposed language that would have 
lowered the required justification for an exception from the 
settled standard of ``compelling interest'' to the novel 
standard of ``significant interest.''

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

    The Committee has included a 180 day ``grace period'' for 
the amendment to allow all affected jurisdictions ample 
opportunity to prepare to implement the amendment. After the 
period has elapsed, the amendment will apply to all crimes and 
proceedings thereafter. The one exception that the Committee 
made was for orders of restitution. A few courts have held that 
retroactive application of changes in standards governing 
restitution violates the Constitution's prohibition of ex post 
facto laws.  See, e.g., United States v. Williams, 128 F.3d 
1239 (8th Cir. 1997). The Committee agrees with those courts 
that have taken the contrary view that, because restitution is 
not intended to punish offenders but to compensate victims, ex 
post facto considerations are misplaced.  See, e.g., United 
States v. Newman, No. 97-3246 (7th Cir. 1998). However, to 
avoid slowing down the conclusion of cases pending at the time 
of the amendment's ratification, the language on restitution 
orders was added.

The rights and immunities established by this article shall apply in 
        Federal and State proceedings, including military proceedings 
        to the extent that the Congress may provide by law, juvenile 
        justice proceedings, and proceedings in the District of 
        Columbia and any commonwealth, territory, or possession of the 
        United States

    This provision extends the amendment to all State and 
Federal criminal justice proceedings. Because of the 
complicated nature of military justice proceedings, including 
proceedings held in times of war, the extension of victims 
rights to the military was left to Congress. The Committee 
intends to protect victims' rights in military justice 
proceedings while not adversely affecting military operations. 
This provision also extends victims' rights to all juvenile 
justice proceedings that are comparable to criminal 
proceedings, even though these proceedings might be given a 
noncriminal label. On this point, the Committee believes that 
``[t]he rights of victims of juvenile offenders should mirror 
the rights of victims of adult offenders.'' U.S. Deppartment of 
Justice, Office for Victims of Crime, New Directions From the 
Field: Victims' Rights and Services for the 21st Century 22 

                       VI. VOTE OF THE COMMITTEE

    The committee met on five occasions to consider S.J. Res. 
44, on June 18, 24, 25, 1998 and twice on July 7, 1998. On July 
7, 1998, Senator Kyl offered a substitute amendment, which was 
agreed to by unanimous consent. Two additional amendments were 
offered, but were defeated by rollcall votes. The Committee 
agreed to favorably report the S.J. Res. 44 to the full Senate, 
with an amendment in the nature of a substitute, on July 7, 
1998, by a rollcall vote of 11 yeas to 6 nays.
    1. Senator Durbin offered an amendment to: on page 2, line 
12, strike ``compelling'' and insert ``significant''. The 
amendment was defeated by a rollcall vote of 5 yeas to 10 nays.
        Yeas                          Nays
Leahy                               Thurmond
Kennedy (by proxy)                  Grassley
Kohl (by proxy)                     Thompson
Feingold                            Kyl
Durbin                              DeWine
                                    Ashcroft (by proxy)
                                    Abraham (by proxy)
    2. Senator Durbin offered an amendment to: on page 2, line 
21, insert the following: ``Section 6. Nothing in this article 
shall be construed to deny or diminish the rights of an accused 
as guaranteed by this Constitution.'' The amendment was 
defeated by a rollcall vote of 6 yeas to 10 nays.
        Yeas                          Nays
Leahy                               Thurmond
Kennedy (by proxy)                  Grassley
Kohl (by proxy)                     Thompson
Feingold                            Kyl
Durbin                              DeWine
Torricelli (by proxy)               Ashcroft (by proxy)
                                    Abraham (by proxy)
    3. The Committee voted on final passage. The resolution was 
ordered favorably reported, as amended, by a rollcall vote of 
11 yeas to 6 nays.
        Yeas                          Nays
Thurmond                            Thompson
Grassley                            Leahy
Kyl                                 Kennedy (by proxy)
DeWine                              Kohl (by proxy)
Ashcroft (by proxy)                 Feingold
Abraham (by proxy)                  Durbin
Torricelli (by proxy)

                       VII. TEXT OF S.J. RES. 44

  joint resolution proposing an amendment to the constitution of the 
         united states to protect the rights of crime victims.

    Resolved by the Senate and the House of Representatives of 
the United States of America in Congress assembled (two-thirds 
of each House concurring therein), That the following article 
is proposed as an amendment to the Constitution of the United 
States, which shall be valid for all intents and purposes as 
part of the Constitution when ratified by the legislatures of 
three-fourths of the several States within seven years from the 
date of its submission by the Congress:

                               Article --

    ``Section 1. A victim of a crime of violence, as these 
terms may be defined by law, shall have the rights:
          ``to reasonable notice of, and not to be excluded 
        from, any public proceedings relating to the crime;
          ``to be heard, if present, and to submit a statement 
        at all such proceedings to determine a conditional 
        release from custody, an acceptance of a negotiated 
        plea, or a sentence;
          ``to the foregoing rights at a parole proceeding that 
        is not public, to the extent those rights are afforded 
        to the convicted offender;
          ``to reasonable notice of a release or escape from 
        custody relating to the crime;
          ``to consideration of the interest of the victim that 
        any trial be free from unreasonable delay;
          ``to an order of restitution from the convicted 
          ``to consideration for the safety of the victim in 
        determining any conditional release from custody 
        relating to the crime; and
          ``to reasonable notice of the rights established by 
        this article.
    ``Section 2. Only the victim or the victim's lawful 
representative shall have standing to assert the rights 
established by this article. Nothing in this article shall 
provide grounds to stay or continue any trial, reopen any 
proceeding or invalidate any ruling, except with respect to 
conditional release or restitution or to provide rights 
guaranteed by this article in future proceedings, without 
staying or continuing a trial. Nothing in this article shall 
give rise to or authorize the creation of a claim for damages 
against the United States, a State, a political subdivision, or 
a public officer or employee.
    ``Section 3. The Congress shall have the power to enforce 
this article by appropriate legislation. Exceptions to the 
rights established by this article may be created only when 
necessary to achieve a compelling interest.
    ``Section 4. This article shall take effect on the 180th 
day after the ratification of this article. The right to an 
order of restitution established by this article shall not 
apply to crimes committed before the effective date of this 
    ``Section 5. The rights and immunities established by this 
article shall apply in Federal and State proceedings, including 
military proceedings to the extent that the Congress may 
provide by law, juvenile justice proceedings, and proceedings 
in the District of Columbia and any commonwealth, territory, or 
possession of the United States.

                          VIII. COST ESTIMATE

    The Congressional Budget Office has supplied the Committee 
with the following report estimating the proposed amendment's 
potential costs.

          S.J. Res. 44 would propose amending the Constitution 
        to protect the rights of crime victims. This proposed 
        amendment would provide certain rights to all victims 
        of crimes of violence, including the right to be heard 
        at any proceeding for sentencing or conditional release 
        from custody. The legislatures of three-fourths of the 
        States would be required to ratify the proposed 
        amendment within 7 years for the amendment to become 
          By itself, this resolution would have no impact on 
        the Federal budget. If the proposed amendment to the 
        Constitution is approved by the States, then any future 
        Federal cases involving crimes of violence and the new 
        constitutional rights could impose additional costs on 
        the Federal courts and the Federal prison system to the 
        extent that such cases are pursued and prosecuted. 
        However, CBO does not expect any resulting costs to be 
        significant. Because enactment of S.J. Res. 44 would 
        not affect direct spending or receipts, pay-as-you-go 
        procedures would not apply.
          S.J. Res. 44 contains no intergovernmental or 
        private-sector mandates as defined in the Unfunded 
        Mandates Reform Act and would impose no costs on State, 
        local, or tribal governments. No State would be 
        required to take action on the resolution.

(Congressional Budget Office, Cost Estimate, S.J. Res. 44, as 
reported by the Senate Committee on the Judiciary on July 7, 
1998, letter dated July 17, 1998.)


    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that Senate Joint Resolution 44 will not have direct 
regulatory impact.


    I support consideration of a constitutional amendment to 
establish a guarantee of rights for victims of crime. I am 
providing these additional views to supplement the Committee's 
report in order to clarify several concerns I have with the 
text of S.J. Res. 44 as adopted by the Committee.
    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\
    \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, U.S. 
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.
    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. 44.

                         Scope of the Amendment

    S.J. Res. 44 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 
44, 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 
ofnon-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 
    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.
    \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. Grayson, 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 
    \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 
        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 
        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.

            Requirement of Reasonable Notice of the Rights:

    I have significant concerns about the necessity and wisdom 
of the last clause of Section 1 of the amendment proposed by 
S.J. Res. 44, 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.
    \4\ Lyng v. Northwest Indian Cemetery Protective Association, 485 
U.S. 439 (1988), at 451 (quoting Sherbert v. Verner, 374 U.S. 398 
(1963) at 412 (Douglas, J., concurring).
    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. 44 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 
14th 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.
    \5\ See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980).
    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 
    \6\ See, e.g., Clark v. Community 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.'')

                      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 
    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. 44. 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.
                                                    Orrin G. Hatch.


    Amending our Constitution is a very serious matter. Without 
question, the Framers intended that we would take such 
momentous steps from time to time, as Article V provides. But 
just as surely, those provisions are to be used only when 
clearly warranted. I believe we must be able to satisfy two 
fundamental questions before we take that step. First, is there 
a problem unaddressed that should be redressed at Federal 
level? Second, if so, is a constitutional amendment the 
appropriate solution? Because I believe that the answer to 
those questions is no, I am compelled to oppose this proposal.
    At the outset, I want to make clear that I fully support 
the essential goal of S.J. Res. 44--to protect the countless 
victims of crime in America. On a daily basis, we see heart-
breaking stories about violent crime on television and in the 
newspapers. Sometimes, crime cuts closer to home in the lives 
of our friends or our families. It is all the more troubling 
when crime victims are then forgotten by prosecutors, judges, 
and others in our criminal justice system. Victims of crime 
deserve much better.
    As much as I agree with the intent of this proposal, for 
constitutional and practical reasons, I believe that this 
constitutional amendment is not the best course to take. I am 
concerned that this amendment could have serious unintended 
consequences, including hampering prosecutions; interfering 
with the State's interest in punishment; imposing large costs 
on law enforcement agencies; tying up the courts in litigation; 
undermining defendants' rights; and unintentionally harming 
victims' interests under some circumstances.\1\ I explained 
many of these concerns at the Committee markup,\2\ and they are 
discussed at length in the Minority Views. Therefore, I will 
not rehash them here. Rather, I will focus my comments on the 
serious implications of this proposal for our federalist system 
of government.
    \1\ See, e.g., Letter from Thomas W. Hillier, II, Federal Public 
Defender, W. Dist. of Wash., to Sen. Orrin Hatch, Chairman, Senate 
Comm. on the Judiciary (June 10, 1998); Letter from William L. Murphy, 
President, National District Attorneys Association, to Sen. Fred 
Thompson (May 27, 1998); Letter from Fred E. Scoralick, President, 
National Sheriffs' Association, to Sen. Orrin Hatch, Chairman, Senate 
Comm. on the Judiciary (June 17, 1998); Letter from Philip B. Heyman, 
Professor of Law, Harvard Law School, to Sen. Edward Kennedy (Sept. 4, 
    \2\ Executive Comm. Meeting, Senate Comm. on the Judiciary, at 22-
37 (July 7, 1998) (statement of Sen. Fred Thompson).
    Federalism lies at the heart of our Democracy. It is the 
principle that limiting the powers of the national government 
preserves liberty and that government close to the people works 
best. Ironically, this proposed constitutional amendment is 
ascendant at the very time that our federalist system of 
government is working as the Founding Fathers intended. The 
States--the laboratories of democracy--are busy conducting 
experiments to solve the complex problem of protecting crime 
victims. Every State has passed victims' rights legislation, 
including my home State of Tennessee.\3\ Twenty-nine States 
have amended their constitutions to protect crime victims.
    \3\ See ``Victims' Bill of Rights,'' 40 Tenn. Code Ann. Sec. 40-38-
101 et seq. (1997); ``Victims' Impact Statement Act,'' 40 Tenn. Code 
Ann. Sec. 40-38-201 et seq. (1997).
    Our federalist system is not only faster and more effective 
than amending the Constitution, but it also offers the great 
benefit of flexibility. The victims' rights movement is 
challenging us to fundamentally rethink our approach to 
criminal justice. Traditionally, our criminal justice system 
has focused on the State's interest in punishment versus the 
rights of the accused. Now we are being asked to graft into 
this adversarial system constitutional rights of crime victims. 
It may well be time to rethink our criminal justice system. 
But, if so, the experimentation and flexibility that the States 
offer are all the more important. If the current balance 
between the interests of the State and the accused is complex--
and it surely is--then our adversarial system will be vastly 
complicated by a three-way relationship among the State, the 
accused, and victims. Each crime is different, and balancing 
these three interests on a case-by-case basis would be no small 
task. It is critical we learn from the experience of the States 
before deciding to add new victims' rights to the 
    \4\ See Letter from Chris Whipple, Acting Executive Director, 
Victim Services, to Sen. Orrin Hatch, Chairman, Senate Comm. on the 
Judiciary (June 9, 1998).
    Constitutional amendments are not only hard to enact; they 
are hard to change. S.J. Res. 44 assumes that the Congress can 
discern the one ``correct'' answer to this complex problem. The 
many diverse State approaches to this problem, and the 
countless redrafts of this proposal, belie the notion that we 
have discerned such a single correct answer.
    Beyond these practical problems, I believe that the 
structure and intent of the Constitution dictates that the 
States should take the leading role on victims' rights. The 
Framers' limited view of the Federal Government is reflected in 
the text of the Constitution. It authorizes only certain 
enumerated powers for the Federal Government, and it limits the 
exercise of those powers. Those limitations, reflected in the 
Bill of Rights, include the preservation of the rights of the 
criminally accused and State sovereignty.
    The Framers' view of a limited Federal Government is 
underscored by the 10th amendment, which provides, ``The powers 
not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States 
respectively, or to the people.'' The Framers left the police 
power with the States, which they viewed as closer to the 
people and less likely to abuse such a vast power. There is no 
general Federal police power. See Lopez v. United States, 514 
U.S. 549 (1995). Accordingly, it seems incongruous to have a 
Federal constitutional amendment addressing victims' rights 
when the Constitution itself left only a relatively small role 
for the Federal Government to address the issue of crime.\5\
    \5\ See Testimony of Roger Pilon, Senior Fellow and Director, 
Center for Constitutional Studies, Cato Institute, before the Senate 
Comm. on the Judiciary (Apr. 28, 1998).
    It is all the more troubling that this proposal co-opts the 
States by directing them how to run their criminal justice 
systems. In doing so, this proposal would constitutionalize 
numerous unfunded mandates. These affirmative obligations of 
the States resemble entitlements that are not consistent with 
the Framers' view of a limited Federal Government.
    S.J. Res. 44 also could open a Pandora's box of Federal 
court interference in State criminal proceedings.\6\ While S.J. 
Res. 44 does not offer victims the opportunity to sue for 
damages to vindicate their rights, it does allow them to seek 
injunctive or declaratory relief, and perhaps writs of 
mandamus. There also could be large class actions against State 
authorities. This could lead to disruptive and costly Federal 
court intrusion into State criminal justice systems.
    \6\ See Letter from Judge George P. Kazen, Chair, Committee on 
Criminal Law, Judicial Conference of the United States, to Sen. Patrick 
Leahy, Ranking Member, Senate Comm. on the Judiciary (Apr. 17, 1997).
    Indeed, this proposal so seriously interferes with State 
sovereignty that I do not think that it would pass muster as a 
Federal statute because such a statute would violate the Tenth 
Amendment. See Printz v. United States, 117 S. Ct. 2365 (1997) 
(Congress may not command State officers to administer or 
enforce a Federal regulatory program); New York v. United 
States, 505 U.S. 144 (1992) (the Federal Government may not 
compel the States to enact or enforce a Federal regulatory 
program). I cannot help but see in this proposal a dramatic 
arrogation of Federal power. We are confronted with the 
unnerving question of whether we effectively will amend the 
10th amendment and carve away State sovereignty. I cannot 
support that.
    As Justice Brandeis once stated, ``Denial of the right to 
experiment may be fraught with serious consequences to the 
Nation. It is one of the happy incidents of the Federal system 
that a single courageous State may, if its citizens choose, 
serve as a laboratory; and try novel social and economic 
experiments without risk to the rest of the country.'' \7\ I do 
not take lightly the genuine motivations for this proposal. But 
amending the Constitution would have far-reaching impacts, and 
we must not lose sight of the potential consequences of our 
action. In the end, we must not lose sight of the limits on our 
power, nor the proper respect the States so richly deserve.
    \7\ New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) 
(Brandeis, J., dissenting).
                                                     Fred Thompson.


                            I. Introduction

    Never before in the history of the Republic have we passed 
a constitutional amendment to guarantee rights to one group of 
citizens at the expense of a powerless minority. Never before 
in the history of the Republic have we passed a constitutional 
amendment to guarantee rights that every State is already 
scrambling to protect. Never before in the history of the 
Republic have we passed a constitutional amendment to guarantee 
rights that intrude so technically into such a wide area of 
law, and with such serious implications for the Bill of Rights.
    This amendment is not, however, without precedent. There 
has been one instance in our history in which we amended the 
Constitution without carefully thinking through the 
consequences. Andrew Volstead led the Congress to passage of 
the 18th amendment, and opened a Pandora's box of unintended 
consequences. The 18th amendment was appealing and entirely 
well meaning. It also was an utter failure that the American 
people were required to undo with the 21st amendment.
    The disaster of Prohibition should remind us that 
constitutional amendments based on sentiment are a dangerous 
business. It would be well for Congress to heed the words of 
James Madison, when he urged that amendments be reserved for 
``certain great and extraordinary occasions,'' and to heed the 
text of Article V, which reserves amendments for things that 
are ``necessary.''
    The treatment of crime victims certainly is of central 
importance to a civilized society, and we must never simply 
``pass by on the other side.'' The question is not whether we 
should help victims, but how. It long has been and is now open 
to Congress immediately to pass a statute that would provide 
full victims' right throughout the Federal system, and at the 
same time provide the resources necessary to assist the States 
in giving force to their own, locally-tailored statutes and 
constitutional provisions. Instead, the proponents of S.J. Res. 
44 invite Congress to delay relief for victims with a complex 
and convoluted amendment to our fundamental law that is less a 
remedy than another Pandora's box which, like the 18th 
amendment, will loose a host of unintended consequences and 
ultimately force the American people to elect a Congress to 
undo this mischief with another constitutional amendment.
    The majority appears to believe that it can control some of 
the inevitable damage through explications in the Committee 
report about how the amendment will operate. We doubt that the 
courts will care much for such efforts. They will look first to 
the plain meaning of the text of the amendment. They will seek 
guidance in Supreme Court precedents interpreting provisions 
using similar language. They will not resort to the majority 
report to interpret wording that is clearly understood in 
current legal and political circles.
    Any interpretative value of the majority report is further 
undermined by the inconsistency of the document, which in some 
situations narrows the impact of the amendment (e.g., by 
construing away the unpopular consequences for battered women 
and incarcerated victims) and in other circumstances expands 
the impact of the amendment (e.g., by devising a role for 
States in implementing the amendment and conjuring up a way for 
victims to sue for damages). Such inconsistency renders the 
majority report politically expedient, but legally meaningless. 
Weaknesses in the text of the amendment cannot with any 
confidence be cured by the majority's views, especially not 
when the majority's analysis is so directly at odds with the 
amendment's plain language and with settled constitutional 

 II. It Is Not Necessary To Amend The Constitution To Protect Victims' 

    Every proposal to amend our Federal Constitution bears a 
very heavy burden. Amendment is appropriate only when there is 
a pressing need that cannot be addressed by other means. No 
such need exists in order to protect the rights of crime 
victims. The proposed amendment therefore fails the standard 
contained in Article V of the Constitution: it is not 

 a. congress and the states have the power to protect victims' rights 
               without a federal constitutional amendment

    Nothing in our current Constitution inhibits the enactment 
of State or Federal laws that protect crime victims. On the 
contrary, the Constitution is generally supportive of efforts 
to give victims a greater voice in the criminal justice system. 
No Victims' Rights Amendment was necessary, for example, to 
secure a role for victims at pretrial detention and capital 
sentencing hearings.\1\
    \1\ United States v. Salerno, 481 U.S. 739 (1987) (due process and 
excessive bail clauses do not prohibit courts from considering safety 
of victims in making pretrial detention decision); Payne v. Tennessee, 
501 U.S. 808 (1991) (Eighth Amendment does not prohibit jury from 
considering victim impact statement at sentencing phase of capital 
    A letter sent to Chairman Hatch by over 450 professors of 
constitutional and criminal law states that ``[v]irtually every 
right contained in the proposed victims rights amendment can be 
safeguarded in federal and state laws.'' \2\ Even Professor 
Laurence Tribe, an outspoken supporter of a Victims' Rights 
Amendment, has acknowledged that ``the states and Congress, 
within their respective jurisdictions, already have ample 
affirmative authority to enact rules protecting these 
[victims'] rights.'' \3\
    \2\ Letter from Law Professors, reprinted in A Proposed 
Constitutional Amendment to Protect Victims of Crime, Hearing on S.J. 
Res. 6 before the Senate Comm. on the Judiciary, 105th Cong., 1st 
Sess., at 140 (Apr. 16, 1997) [hereinafter ``Hearing of Apr. 16, 
    \3\ Id. at 12 (statement of Laurence H. Tribe).
    We asked Professor Paul Cassell, another leading proponent 
of S.J. Res. 44, to list all the appellate cases in which a 
defendant's rights under the Federal Constitution were held to 
supersede a victim's rights under a Federal or State victims' 
rights provision. He failed to identify any. More recently, 
Professor Robert Mosteller challenged the pro-amendment 
participants in a symposium on victims' rights, including 
Professor Cassell, to provide such cases. They referred him to 
a single decision by an intermediate appellate court that would 
not be affected by passage of S.J. Res. 44.\4\ Where is the 
objectionable body of law that might justify the extraordinary 
step of amending the United States Constitution?
    \4\ See Arizona ex rel. Romley v. Superior Court, 836 P.2d 445 
(Ariz. Ct. App. 1992). Romley holds that a victim's right under the 
Arizona Constitution to refuse discovery requests by the defendant must 
yield to the defendant's due process right. Far from advancing the 
cause of constitutional amendment, however, the case illustrates the 
danger of empowering certain self-proclaimed victims at the expense of 
the unconvicted accused. See infra Part V.A.
    Given our ability to proceed without amending the 
Constitution, one might reasonably wonder why so much time and 
effort has been expended on the project. We heard one 
explanation during the Committee markup. Quoting Professor 
Tribe, one of the amendment's sponsors told us that the ``real 
problem'' with existing statutes and State constitutional 
amendments is that they ``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.'' \5\ The majority report offers the same 
remarkable rationale.
    \5\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess., at 23-24 (Jun. 25, 1998) (statement of Sen. Jon L. 
    Have we so lost confidence in our ability to govern and to 
regulate the conduct of public officials sworn to follow the 
law that we now insist on amending our basic charter of 
government in order to overcome habit, indifference and 
inertia? Do we really believe that a constitutional amendment 
will accomplish this objective? Habit, indifference, inertia--
none is automatically extinguished by the existence of a 
constitutional amendment. We are especially unlikely to defeat 
them with a constitutional amendment like S.J. Res. 44, which 
creates rights riddled with qualifications and exceptions and 
prohibits the award of damages for their violation.
    Professor Lynne Henderson, herself a victim of a violent 
crime, told the Committee that what is needed are good training 
programs with adequate funding, not more empty promises.\6\ We 
agree that the only way to change entrenched attitudes toward 
victims' rights is through systematic re-training and re-
education of everyone who works with victims' prosecutors and 
law enforcement officers, judges and court personnel, victim's 
rights advocates, trauma psychologists and social workers. But 
when we get to this end, why undertake a massive effort to 
amend our Constitution if what we really need to do is spend 
time and money on training and education?
    \6\ Statement of Lynne Henderson regarding S.J. Res. 6, prepared 
for the Senate Comm. on the Judiciary (Apr. 14, 1997).


    We believe that ordinary legislation not only is sufficient 
to correct any deficiencies in the provision of victims rights 
that currently exist, but also is vastly preferable to amending 
the Constitution. Indeed, the statutory approach is favored by 
a broad cross-section of the participants in the criminal 
justice system.
    The U.S. Judicial Conference favors the statutory approach 
because it ``would have the virtue of making any provisions in 
the bill which appeared mistaken by hindsight to be amended by 
a simple act of Congress.'' \7\ The Conference's Committee on 
Criminal Law has identified ``a number of distinct advantages'' 
that the statutory approach has over a constitutional 
    \7\ Letter from William H. Rehnquist, Chief Justice, U.S. Supreme 
Court, to Judy Clarke, President, National Assn. of Criminal Defense 
Lawyers (Apr. 23, 1997).

          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. At that point, 
        Congress would have a much clearer picture of which 
        concepts are effective, which are not, and which might 
        actually be counterproductive.\8\
    \8\ Letter from George P. Kazen, Chief U.S. District Judge, Chair, 
Committee 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).

    The State courts also favor a statutory approach to 
protecting victims' rights. The Conference of Chief Justices 
has underscored ``[t]he inherent prudence of a statutory 
approach,'' which could be refined as appropriate and ``holds a 
more immediate advantage to victims who, under the proposed 
amendment approach, may wait years for relief during the 
lengthy and uncertain ratification process.'' \9\
    \9\ Statement of the Conference of Chief Justices regarding H.J. 
Res. 71 and H.R. 1322, prepared for the House Comm. on the Judiciary 
(June 25, 1997).
    Other major organizations, including several victims 
groups, concur. For example, the National Clearinghouse for the 
Defense of Battered Women says that statutory alternatives are 
``more suitable'' to addressing the complex problems facing 
crime victims.\10\ The National Network to End Domestic 
Violence concludes that ``a constitutional amendment is not the 
most effective or appropriate legislative vehicle by which the 
government may eradicate the real problems that victims 
experience when seeking justice,'' and urges policymakers to 
explore less drastic alternatives.\11\ The National 
Organization for Women Legal Defense and Education Fund writes 
that the proposed constitutional amendment ``raises concerns 
that outweigh its benefits,'' but ``fully endorse[s] * * * 
enactment and enforcement of additional statutory reform that 
provide important protections for [victims].''\12\ The Cato 
Institute, the National Sheriffs' Association, the National 
Association of Criminal Defense Attorneys, the National Legal 
Aid and Defenders Association, Victim Services, Murder Victims 
Families for Reconciliation, the NAACP, the ACLU, the Youth Law 
Center, and over 450 law professors--all believe that the 
treatment and role of victims in the criminal justice process 
can and should be enhanced, but not by amending the Federal 
    \10\ Hearing of Apr. 16, 1997, at 161, 162 (statement of National 
Clearinghouse for the Defense of Battered Women).
    \11\ Id. at 165 (statement of National Network to End Domestic 
    \12\ Id. at 168 (statement of NOW Legal Defense and Education 
    The widespread support for enacting victims' rights by 
statute arises in part from evidence that statutes work--they 
can adequately ensure that victims of crimes are accorded 
important rights in the criminal justice process. We should not 
diminish the majesty of the Constitution of the United States 
when ordinary legislation is more easily enacted, more easily 
corrected or clarified, more directly applied and implemented, 
and more able to provide specific, effective remedies.


    In the past two decades, the victims' movement has made 
historic gains in addressing the needs of crime victims, on 
both the national and local level. An extensive framework of 
victims' rights has been created through Federal and State 
legislation and amendments to State constitutions. The majority 
report asserts, based on scant authority, that existing laws 
have not ``fully succeeded'' in ensuring ``comprehensive'' 
protection of victims' rights. But given the extraordinary 
political popularity of the victims' movement, there is every 
reason to believe that the legislative process will continue to 
be responsive to enhancing victims' interests, so that there is 
simply no need to amend the Constitution to accomplish this.

1. Federal crime victims initiatives

    At the Federal level, Congress has enacted several major 
laws to grant broader protections and provide more extensive 
services for victims of crime. The first such legislation was 
the Victim and Witness Protection Act of 1982,\13\ which 
provided for victim restitution and the use of victim impact 
statements at sentencing in Federal cases, and the Victims of 
Crime Act of 1984,\14\ which encouraged the States to maintain 
programs that serve victims of crime. The Victims of Crime Act 
also established a Crime Victims' Fund, which matches 35 
percent of the money paid by States for victim compensation 
    \13\ P.L. 97-291, Oct. 12, 1982, 96 Stat. 1248.
    \14\ P.L. 98-473, Title I, ch. XIV, Oct. 12, 1984, 99 Stat. 1837.
    In 1990, Congress enacted the Victims' Rights and 
Restitution Act.\15\ This Act increased funding for victim 
compensation and assistance, and codified a victims' Bill of 
Rights in the Federal justice system. Federal law enforcement 
agencies must make their best efforts to accord crime victims 
with the following rights: (1) to be treated with fairness and 
respect; (2) to be protected from their accused offenders; (3) 
to be notified of court proceedings; (4) to be present at 
public court proceedings related to the offense under certain 
conditions; (5) to confer with the government attorney assigned 
to the case; (6) to receive restitution; and (7) to receive 
information about the conviction, sentencing, imprisonment, and 
release of the offender.
    \15\ P.L. 101-647, Title V, Nov. 29, 1990, 104 Stat. 4789.
    The Violence Against Women Act of 1994\16\ made tens of 
millions of dollars available to the States through STOP 
(Services, Training, Officers, Prosecutors) grants for law 
enforcement, prosecution and victims services to prevent and 
respond to violence against women, including domestic violence. 
A recent study shows that STOP funds are being used for 
training of police and prosecutors, resulting in improved 
police handling of domestic violence incidents, interagency 
coordination, establishment of multi-disciplinary response 
teams, and higher conviction rates. Funds are also providing 
direct services to victims, resulting in increased victim 
cooperation and satisfaction.\17\
    \16\ P.L. 103-322, Title IV, Sept. 13, 1994, 108 Stat. 1796.
    \17\ See 1998 Annual Report: Evaluation of the S.T.O.P. Formula 
Grants Under the Violence Against Women Act of 1994 (June 12, 1998).
    The Mandatory Victims Restitution Act of 1996 \18\ required 
courts to order restitution when sentencing defendants for 
certain offenses. As part of the same crime bill, the Justice 
for Victims of Terrorism Act of 1996\19\ appropriated funds to 
assist and compensate victims of terrorism and mass violence. 
The Act also filled a gap in our law for residents of the 
United States who are victims of terrorism and mass violence 
that occur outside the borders of the United States. In 
addition, Congress provided greater flexibility to our State 
and local victims' assistance programs and some greater 
certainty so they can know that our commitment to victims' 
programs will not wax and wane with current events. And we were 
able to raise the assessments on those convicted of Federal 
crimes in order to fund the needs of crime victims.
    \18\ P.L. 104-132, Title IIA, Apr. 24, 1996, 110 Stat. 1214.
    \19\ P.L. 104-132, Title IIC, Apr. 24, 1996, 110 Stat. 1214.
    The Victim Rights Clarification Act of 1997 \20\ reversed a 
presumption against crime victims observing any part of the 
trial proceedings if they were likely to testify during the 
sentencing hearing. Specifically, this legislation prohibited 
courts from excluding victims from the trial on the ground that 
they might be called to provide a victim impact statement at 
the sentencing, and from excluding a victim impact statement on 
the ground that the victim had observed the trial. As a result 
of this legislation, victims of the Oklahoma City bombing were 
allowed both to observe the trial of Timothy McVeigh and to 
provide victim impact testimony.
    \20\ P.L. 105-6, Sec. 2(a), Mar. 19, 1997, 111 Stat. 12.
    Most recently, in this session, Congress passed the Crime 
Victims With Disabilities Awareness Act (S. 1976). This 
legislation will focus attention on the presently overlooked 
needs of crime victims with disabilities. It proposes to have 
the National Academy of Sciences conduct research so as to 
increase public awareness of victims of crimes with 
disabilities, to understand the nature and extent of such 
crimes, and to develop strategies to address the safety and 
needs of these peculiarly vulnerable victims.
    Despite the gains that have been made through Federal 
statutes, some Members of Congress and some victims' rights 
groups continue to assert that statutes do not work to provide 
victims with certain participatory rights. For instance, during 
Committee deliberations on S.J. Res. 44 on June 25, 1998, two 
sponsors of the bill cited the Victim Rights Clarification Act 
as evidence that statutes cannot adequately protect a victim's 
rights. In particular, Senator Feinstein stated that the trial 
judge in the Oklahoma City bombing case ``chose to ignore [the 
Act], just ignored it. * * * If the victim was present, the 
victim didn't have the right to make a statement.\21\ Senator 
Kyl made similar statements suggesting that Judge Matsch had 
refused to enforce the Act.\22\
    \21\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess., at 16 (Jun. 25, 1998).
    \22\ Id. at 25.
    Given such assertions, we believe it important to look at 
how the Victim Right Clarification Act was actually applied in 
the Oklahoma City case. On June 26, 1996, Judge Matsch held 
that potential witnesses at any penalty hearing were excluded 
from pretrial proceedings and the trial to avoid any influence 
from that experience on their testimony. Congress proceeded to 
pass the Victim Rights Clarification Act, which the President 
signed into law on March 19, 1997. One week later, Judge Matsch 
reversed his exclusionary order and permitted observation of 
the trial proceedings by potential penalty phase victim impact 
witnesses.\23\ In other words, Judge Matsch did exactly what 
the statute told him to do. Not one victim was prevented from 
testifying at Timothy McVeigh's sentencing hearing on the 
ground that he or she had observed part of the trial.
    \23\ United States v. McVeigh, 958 F. Supp. 512, 515 (1997).
    So it is not accurate to assert that the Victim Rights 
Clarification Act did not work, or that statutes in general 
cannot adequately protect victims' rights. In fact, the Victim 
Rights Clarification Act is a paradigmatic example of how 
statutes, when properly crafted, can and do work. We are 
certain that additional clarifications would find judges 
equally receptive and willing to grant victims the rights 
Congress intends.

2. State crime victims initiatives

    The individual States have also done their part in 
enhancing the role and protection of crime victims. Every State 
and the District of Columbia has some type of statutory 
provision providing for increased victims' rights, including 
some or all of the rights enumerated in S.J. Res. 44, as well 
as others. In addition, some 29 States have amended their State 
constitutions to provide a variety of protections and rights 
for crime victims.
    While there may be room for improvement in the States' 
administration of their existing victims' rights laws, in 
general, victims and criminal justice personnel believe that 
these laws are sufficient to ensure victims' rights. For 
example, in 1989, the American Bar Association's Victim Witness 
Project analyzed the impact of State victims' rights laws on 
criminal justice practitioners and victims. The researchers 
found that prosecutors, judges, probation officers, and victim/
witness advocates were almost universally satisfied with the 
State laws. They also found that those practitioners who had 
concerns about existing victims' rights provisions were 
generally dissatisfied with levels of funding for victims' 
services. With regard to victim satisfaction, the researchers 
concluded that ``many victims in States with victims rights 
legislation believe the criminal justice system is doing a 
satisfactory job of keeping them informed, providing them an 
opportunity to have a say in certain decisions and notifying 
them about case outcomes.'' \24\
    \24\ Susan W. Hillenbrand & Barbara E. Smith, Victims Rights 
Legislation: An Assessment of its Impact on Criminal Justice 
Practitioners and Victims, American Bar Assn. Criminal Justice Section 
Victim Witness Program, at 26 (May 1989).
    Since 1989, States have continued to strengthen their 
victims' rights provisions and services. According to a 1997 
report prepared by the National Criminal Justice Association 
with support from the Justice Department's Office for Victims 
of Crime (``OVC''): ``It appears evident that the trend to 
expand the statutory rights of victims on the State level is 
continuing.'' \25\ A 1995 report by the State of Arizona's 
auditor general found that in the four counties studied, ``many 
agencies are offering victim services above and beyond those 
mandated by the [Arizona Victims' Rights Implementation] Act, 
primarily at their own expense.'' \26\
    \25\ National Criminal Justice Assn., Victims Rights Compliance 
Efforts: Experiences in Three States (no date).
    \26\ Victims' Rights Compensation and Victim-Witness Programs in 
Maricopa, Pima, Coconino, and Cochise Counties, Report to the Arizona 
State Legislature by the auditor general (Dec. 1994).
    The majority report relies heavily on two recent studies 
that found current victims' rights laws inadequate. The first 
study was conducted by the National Victim Center (``NVC'')--a 
strong proponent of a Victims' Rights Amendment.\27\ Insofar as 
the NVC study can be read to have meaning, it suggests that it 
is money and additional State law provisions that are needed, 
not a Federal constitutional amendment. The ``violations'' it 
discusses are failures of enforcement, not instances of 
defendants' rights trumping the rights of victims.
    \27\ NVC, Statutory and Constitutional Protection of Victims' 
Rights: Implementation and Impact on Crime Victims--Subreport: Crime 
Victim Responses Regarding Victims' Rights (Apr. 15, 1997).
    The NVC study does not provide a clear picture of the 
impact of State victims' rights laws, however, because its 
methodology is seriously flawed. First, the researchers relied 
exclusively on uncorroborated reports by crime victims 
regarding their personal experiences; there was no attempt to 
verify that victims who claimed that they had been denied 
rights had, in fact, been denied rights. Second, the 
researchers surveyed victims in only four States--and they do 
not reveal which four States. Third, the researchers selected 
the four States based on a ranking of State statutory and 
constitutional victims rights provisions--but, again, they do 
not reveal what criteria they used for ranking the States. 
Fourth, the researchers concluded that State provisions are not 
enough because victims are not universally satisfied with the 
quality of treatment they receive. Yet the researchers did not 
appear to take into consideration important factors such as the 
structure of the various bureaucracies or the availability of 
financial resources or the levels of training among State 
criminal justice personnel, all of which may have a dramatic 
impact on the treatment of victims from State to State and may 
be significantly related to victim dissatisfaction. Such 
manifest flaws in the NVC's methodology led the OVC to conclude 
that ``more research would be needed before any policy 
recommendations could be made based on the data.'' \28\
    \28\ Letter from Kathryn M. Turman, Acting Director, OVC, to Robert 
P. Mosteller, Professor, Duke University School of Law (Sept. 18, 
1998). An earlier intra-office memorandum memorializes the Justice 
Department`s wish that the complete report not be published at all. 
Memorandum from Sam McQuade, Program Manager, National Institute of 
Justice, to Jeremy Travis, Director, National Institute of Justice (May 
16, 1997) (``OVC has requested that the complete report NOT be 
published because, in its view, the report contains contradictory 
information. * * *'') (emphasis in original).
    The second study cited in the majority report was compiled 
by the OVC based on anecdotal information from ``the field''--
that is, ``crime victims themselves and representatives of the 
agencies and organizations that serve them.'' \29\ Once again, 
however, the deficiencies identified in the study--deficiencies 
in the implementation of State victims' rights laws and in the 
scope of some States' provisions--can be corrected without a 
Federal constitutional amendment.
    \29\ OVC, New Directions from the Field: Victims' Rights and 
Services for the 21st Century vii (May 1998).
    There has been no impartial, comprehensive analysis done to 
indicate that victims' rights cannot adequately be protected by 
State and Federal laws. Before we take the grave step of 
amending the Constitution, we should know precisely how the 
Constitution fails to protect victims' rights. We should be 
certain that Federal statutes are not working and can not work, 
no matter how carefully crafted. We should have evidence that 
State constitutional provisions and statutes are not and can 
not do the job. Further study, we believe, will show that 
solutions short of amendment can provide effective and 
meaningful relief to crime victims.


    The majority report subscribes to the popular canard that 
we need a Victims' Rights Amendment to correct an ``imbalance'' 
in our constitutional structure. According to this argument, 
the criminal justice system is improperly tilted in favor of 
criminal defendants and against victims' interests, as 
evidenced by the fact that the Constitution enumerates several 
rights for the accused and none, specifically, for the victim.
    While aesthetically pleasing, however, the concept of 
``balance'' makes little sense in this context. The paramount 
purpose of a criminal trial is to determine the guilt or 
innocence of the accused, not to make victims whole. The 
interests of the victim are protected by the right to bring a 
civil suit against the accused, by court-ordered restitution if 
the accused is convicted, by victim compensation programs, and, 
most importantly, by our well-considered tradition of the 
public prosecutor.
    Of course, the public prosecutors of the United States 
represent ``the people,'' not just the individual crime victim; 
they are required to seek justice for all, not individual 
justice or revenge. We have historically and proudly eschewed 
private criminal prosecutions based on our common sense of 
democracy. That the prosecutor's duty is to do justice may make 
the system appear unequal, but it is fundamentally sound: the 
interests of the people and the interests of the victim are 
often identical, but when they diverge, it is appropriate for 
the public prosector to pursue the interests of the people.
    One crime victim who testified before the Committee against 
the proposed amendment made this point eloquently:

          Victims are citizens and people first. Unless one is 
        defined solely and for all time by one's status as a 
        victim, one has an interest in a free and democratic 
        society that honors individual rights, including the 
        rights of criminal defendants. We all, therefore, have 
        an interest in the fairness of the criminal justice 
        system and the manner in which the State treats its 
        most disfavored citizens.\30\
    \30\ Statement of Lynne Henderson regarding S.J. Res. 6, prepared 
for the Senate Comm. on the Judiciary, at 19 (Apr. 14, 1997) (emphases 
in original).

    The majority report itself recognizes that ``a public trial 
is intended to preserve confidence in the judicial system, that 
no defendant is denied a fair and just trial.'' This is as it 
should be. Victims' voices should be heard, but they should not 
be able to make judgments that would take from the rest of us 
our sense that justice is being served.
    Beyond this, the ``balance'' argument mistakes the 
fundamental reason for elevating rights to the constitutional 
level. The rights enshrined in the United States Constitution 
are designed to protect politically weak and insular minorities 
against governmental overreaching or abuse,\31\ not to protect 
individuals from each other. When the government unleashes its 
prosecutorial power against an accused, it is the accused, not 
the victim, who faces the specter of losing his liberty, 
property, or even his life. The few and limited rights of the 
accused in the Constitution are there precisely because it will 
often be unpopular to enforce them so that even when we are 
afraid of a rising tide of crime, we will be protected against 
our own impulse to take shortcuts that will violate the 
essential dignity of the accused and increase the risk of 
wrongful conviction. In contrast, there is no need to grant 
constitutional protections to a class of citizens that commands 
virtually universal sympathy and substantial political power.
    \31\ Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 
n.4 (1938).
    In the words of Bruce Fein, Deputy Attorney General during 
the Reagan Administration:

          [C]rime victims have no difficulty in making their 
        voices heard in the corridors of power; they do not 
        need protection from the majoritarian political 
        process, in contrast to criminal defendants whose 
        popularity characteristically ranks with that of 
        General William Tecumseh Sherman in Atlanta, GA.\32\
    \32\ A Proposed Constitutional Amendment to Establish a Bill of 
Rights for Crime Victims, Hearing on S.J. Res. 52 before the Senate 
Comm. on the Judiciary, 104th Cong., 2d Sess. 100 (Apr. 23, 1996).

    III. The Proposed Amendment Would Have Dangerous and Uncertain 
         Consequences for the Nation's Criminal Justice System

    While the proposed amendment is at best unnecessary, at 
worst, it could help criminals more than it helps victims and 
cause the conviction of some who are innocent and wrongly 
accused. Passage of S.J. Res. 44 would enshrine new rights in 
the Constitution that would fundamentally realign this Nation's 
criminal justice system, opening a Pandora's box of dangerous 
unintended consequences.

  a. the amendment would impair the ability of prosecutors to convict 
                           violent criminals

    Since we first began holding hearings on a victims' rights 
amendment, prosecutors and other law enforcement authorities 
all across the country have cautioned that creating special 
constitutional rights for crime victims would have the perverse 
effect of impeding the effective prosecution of crime.

1.-Restricting prosecutorial discretion

    Most egregiously, the proposed amendment could compromise 
prosecutorial discretion and independence by allowing crime 
victims to second-guess and effectively dictate policy 
decisions made by prosecutors accountable to the public. As the 
National District Attorneys Association cautioned, it could 
afford victims the ability to place unknowing, and 
unacceptable, restrictions on prosecutors while strategic and 
tactical decisions are being made about how to proceed with a 
case.\33\ A constitutionally-empowered crime victim could 
override the professional judgment of the prosecutor concerning 
the investigation of the case, the timing of the proceedings, 
the disposition of the charges, and the recommendation as to 
    \33\ Letter from William L. Murphy, President, National District 
Attorneys Assn., to Sen. Patrick J. Leahy, Ranking Member, Senate Comm. 
on the Judiciary (May 27, 1998).
    Prosecutorial discretion over plea bargaining is 
particularly at risk if S.J. Res. 44 passes, for it is here 
that the interests of the victim and the broader interests of 
the public most often diverge. Prosecutors enter into plea 
agreements for many reasons. A prosecutor may need to obtain 
the cooperation of a defendant who can bring down an entire 
organized crime ring; she may need to protect the identity of 
an informant-witness; she may think that the evidence against 
the defendant will not convince a jury beyond a reasonable 
doubt; she may just want to speed the processes of 
adjudication. In each instance, the prosecutor may be acting 
contrary to the wishes of the victim, or causing resentment on 
the part of one set of victims in order to do rough justice or 
provide immediate security to another set of victims.
    How will this play out in the courts? A Miami defense 
lawyer tells of representing a murder defendant who accepted a 
plea offer from the prosecution. The judge refused to accept 
the offer after the victim's mother spoke out against it. His 
client went to trial and was acquitted.\34\ In California, 
relatives of a homicide victim complained to a judge that a 
plea bargain struck with the accused shooter was too lenient. 
They got what they wanted: withdrawal of the plea and 
prosecution of the man on murder charges. But at the close of 
the trial, the defendant was acquitted.\35\
    \34\ Robert Fichenberg, The Controversial Victims' Rights 
Amendment, 30-OCT Prosecutor 38 (1996).
    \35\ See Wayne Wilson, Man acquitted in killing after protest by 
victim's kin torpedoed plea deal, The Sacramento Bee (July 2, 1997). 
Defendant Loren Joost originally pleaded no contest to voluntary 
manslaughter, with the understanding that he would be sentenced to no 
more than 6 years in prison. The victim's family sabotaged the plea 
agreement by gathering more than 200 signatures denouncing the proposed 
settlement as too lenient.
    Under the proposed amendment, well-meaning victims could 
obstruct plea proceedings, scuttling plea bargains, as in the 
Florida and California cases, or forcing prosecutors to 
disclose investigative strategies or weaknesses in their cases 
in order to persuade courts to accept victim-contested pleas. 
In this and other stages of the criminal process, prosecutors 
could be induced to make bad choices, or even to disregard 
their professional and ethical obligations, rather than risk 
violating a victim's constitutional rights.
    There can be no doubt that prosecutors would feel 
personally constrained by the proposed amendment. S.J. Res. 
44's express prohibition on claims for damages only increases 
the likelihood that courts would find other ways to vindicate 
its newly-minted rights. Just last year, the U.S. Supreme Court 
confirmed that the Federal civil rights laws permit criminal 
prosecutions in Federal court of any State official who 
willfully and under color of law deprived any person of any 
rights secured or protected under the Federal Constitution.\36\ 
At a minimum, prosecutors who made choices unpopular with 
victims would expose themselves to disciplinary action. 
Meanwhile, prosecutors who become adversaries to victims 
because of judicially-contested conflicts over a case could be 
required to recuse themselves from the case in order to defend 
themselves in the ancillary proceeding--another unintended 
consequence that could have significant adverse effects on the 
Nation's criminal justice system.
    \36\ United States v. Lanier, 520 U.S. 259 (1997).
    Even the Department of Justice, which supports amending the 
Constitution to provide for enhanced victims' rights, has 
acknowledged that in at least some situations, affording 
special constitutional rights to victims will ``impact on the 
prosecutor's discretion and judgment'' and ``adversely affect 
the administration of justice.'' \37\ We must not create 
entitlements for victims that will tie prosecutors' hands and 
cripple law enforcement.
    \37\ Hearing of Apr. 16, 1997, at 48, 132 (responses of Attorney 
General Janet Reno to questions from Sen. Patrick J. Leahy).

2. Other adverse consequences

    Creating an absolute right for crime victims to attend and 
participate in criminal proceedings could raise other serious 
problems for law enforcement. Consider the problem of the 
victim-witness. In many cases, the victim is the Government's 
key witness. If she insists on exercising her constitutional 
right to sit through the entire trial, there is a substantial 
danger that her testimony will be influenced by hearing and 
seeing other evidence concerning the same set of facts. Whether 
consciously or unconsciously, she could tailor her testimony to 
fit the other evidence.
    Apart from the obvious fairness concerns implicated by this 
procedure, which facilitates and even encourages collusive and 
inaccurate testimony, 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. 
Defense attorneys will cross-examine victims at length on this 
point and argue, credibly, that the victims' testimony was 
irretrievably tainted. Inevitably, in some cases, this tactic 
will succeed: the jury will discredit or discount the victim's 
testimony. Whole cases, or important counts, may be lost in 
this way. Indeed, one proponent of the amendment, formerly a 
public defender, admitted during the Committee markup that the 
proposed amendment could inure to the benefit of 
    \38\ Executive Comm. Meeting, Senate Comm. on the Judiciary, at 58 
(July 7, 1998) (statement of Sen. Joseph R. Biden, Jr.).
    As a practical matter, prosecutors may be able to shield 
victim testimony from the appearance of taint by putting the 
victim on the stand first. But what happens in the event that 
the victim is recalled for additional testimony? What happens 
in cases involving more than one victim-witness? A forced 
reshuffling of the witness list might not help, and could well 
compromise the coherence and effectiveness of the prosecution's 
presentation to the jury.
    Constitutionalizing the right not to be excluded from 
public criminal proceedings could also give rise to actions by 
victims against decisions to conduct certain proceedings under 
seal. This could cause particular disruption in the context of 
juvenile justice proceedings, which are often closed to the 
public, and to which the proposed amendment expressly applies. 
Similarly, it could compromise courtroom closure laws designed 
to protect child witnesses.\39\ A no-exclusion rule could also 
make it more difficult for prosecutors to do their jobs when, 
for example, they need secrecy at some stage of a proceeding in 
order to assure the safety of a witness.
    \39\ See, e.g., 18 U.S.C. Sec. 3509(e).
    Finally, S.J. Res. 44's creation of a victim's right to 
trial ``free from unreasonable delay'' raises another set of 
concerns for prosecutors. Suppose a prosecutor in a complex 
case needs more time to interview witnesses and prepare for 
trial. Could a victim sue to require the immediate commencement 
of trial? Forcing prosecutors to try cases before they are 
fully prepared plays into the hands of the defense and would 
undoubtedly result in many cases being dropped or lost.

    b. the amendment could impose tremendous new costs on the system

    S.J. Res. 44 could impose a tremendous new administrative 
burden on State and Federal law enforcement agencies. These 
agencies would be constitutionally required to make reasonable 
efforts to identify, locate and notify crime victims in advance 
of any public proceeding relating to the crime, as well as most 
non-public parole proceedings. The proposed amendment's 
broadly-worded mandate covers even the most insignificant 
scheduling conference. It extends to parole hearings, appellate 
arguments, and habeas corpus proceedings held long after the 
trial is concluded, generating additional expenses in re-
locating all the victims. The Attorney General has acknowledged 
that instituting a system that would integrate the necessary 
investigative information, prosecutive information, court 
information, and corrections information would be a complex 
undertaking, and costly.\40\
    \40\ Hearing of Apr. 16, 1997, at 131-32 (responses of Attorney 
General Janet Reno to questions from Sen. Strom Thurmond).
    The potential costs of S.J. Res. 44's constitutionally-
mandated notice requirements alone are staggering, without 
regard to the many hidden costs that may flow from the vague 
promises that this legislation proposes. Consider as an example 
the right of crime victims ``to be heard * * * and to submit a 
statement * * * to determine * * * an acceptance of a 
negotiated plea.'' The vast majority of all criminal cases are 
now resolved by plea bargaining. Although it is unclear how 
much weightjudges would be required to give to a victim's 
objection to a plea bargain, even a small increase in the number of 
cases going to trial would seriously burden prosecutors' offices.
    The proliferation of victim participatory rights at all 
accusatory and trial stages could give rise to even greater 
hidden costs. The 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. More 
significantly, the right to be heard and to submit written 
statements could be read to entitle indigent victims to court-
appointed counsel (and, if necessary, a translator or 
interpreter) so that they can exercise the right fully and 
equally. Indeed, some States that have provided victims' rights 
in their constitutions have employed advocates to represent 
victims and also created special offices of oversight. If S.J. 
Res. 44 were interpreted to provide this sort of protection to 
indigent victims--as the sixth amendment has been interpreted 
with respect to indigent defendants--then we would be 
confronted with a funding problem of enormous proportion.
    Cognizant of this problem, the majority report purports to 
find a solution in the amendment's prohibition on claims for 
damages (``Nothing in this article shall give rise to or 
authorize the creation of a claim for damages against [a 
governmental entity]''). The report assures us that this 
language will ``prevent[] the possibility'' that courts will 
construe the amendment to require the appointment of counsel 
for indigent victims. However, the report fails to explain how 
a limitation on the remedies available for government 
violations of victims' rights could even remotely affect a 
court's determination regarding the Government's duty to assist 
indigent victims in exercising those rights.
    Incarcerated victims are another cause for concern. What 
happens when one inmate commits a crime of violence against 
another inmate? With a constitutional guarantee, as opposed to 
a more flexible statutory approach, prison authorities could be 
required to transport the victim inmate to all relevant 
proceedings. The majority report contradicts itself on this 
point. It promises that the proposed amendment ``does not 
confer on prisoners any * * * rights to travel outside prison 
gates,'' yet asserts, in the very next paragraph: ``A victim's 
right not to be excluded will parallel the right of a defendant 
to be present during criminal proceedings.'' Which is it?
    Regardless, courts will pay little attention to the 
majority's commentary when interpreting the comparatively clear 
language of S.J. Res. 44. Under established principles of 
constitutional law, the court could be compelled to conclude 
that the costs involved in transporting prisoners to court to 
exercise their constitutional rights as victims are not 
sufficiently ``compelling'' to justify an exception under 
section 3 of the amendment. The National Sheriffs' Association 
has told us that such costs would be difficult to bear:

          Under a constitutional amendment, a sheriff would be 
        required to provide access to all court proceedings and 
        hearings for the victim inmate. Additionally, the 
        sheriff would be responsible for the significant costs 
        of personnel, transportation, and security for the 
        victim inmate. Sheriffs would find it difficult to meet 
        the mandates of a victims' rights amendment to the 
        Constitution involving incarcerated victim inmates.\41\
    \41\ Letter from National Sheriffs' Assn. to Sen. Orrin G. Hatch, 
Chairman, Senate Comm. on the Judiciary (June 17, 1998).

    The amendment would also impose a costly, time-consuming 
drain on the Nation's courts. In addition to giving an 
unspecified class of ``victims'' a right to be heard at 
virtually every stage of the criminal process, the amendment is 
so vague and rife with ambiguity that it is certain to generate 
a host of knotty legal questions requiring decades of 
litigation to resolve. Moreover, these questions will be 
litigated at every stage of every proceeding, causing the time 
for processing what would otherwise be a simple case to 
skyrocket. The potential cost to taxpayers is extravagant.
    How would all these new costs be funded? Unless funding 
adequate to implement the amendment on a nationwide basis 
accompanies its passage, resources would, of necessity, be 
diverted from other law enforcement and judicial efforts. There 
would be less money spent fighting crime and prosecuting 
criminals. There would be less court time available for 
individual and business users of the courts, including crime 
victims. In the Federal system, the increased litigation would 
exacerbate a case overload that already threatens to bring 
justice in America to a grinding halt.

 c. the new constitutional rights for victims would undermine bedrock 
   constitutional protections afforded to the accused by the bill of 

    The Department of Justice, the National District Attorneys 
Association, and the American Bar Association, among others, 
have underscored the urgent need to preserve the fundamental 
protections of those accused of crimes while giving appropriate 
protection to victims.\42\
    \42\ Letter from L. Anthony Sutin, Acting Assistant Attorney 
General, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the 
Judiciary (June 2, 1998); National District Attorneys Association, 
Resolution: Federal Constitutional Victim Rights Amendment (Mar. 9, 
1997); Letter from Michael T. Johnson on behalf of the American Bar 
Assn. to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the Judiciary 
(June 24, 1998). See also Robert P. Mosteller, Victims' Rights and the 
Constitution: Moving from Guaranteeing Participatory Rights to 
Benefiting the Prosecution, 29 St. Mary's L.J. ------ (forthcoming 
1998) (concluding that a constitutional amendment supporting victims' 
rights should expressly guarantee that it will not diminish existing 
rights of the accused).
    During the markup, we considered a proposed amendment to 
S.J. Res. 44 stating, ``Nothing in this article shall be 
construed to deny or diminish the rights of the accused as 
guaranteed by this Constitution.'' The Committee rejected this 
amendment by a vote of 10 to 6.\43\ Courts may therefore 
conclude that S.J. Res. 44 was intended to override earlier-
ratified provisions securing the accused's right to a fair 
trial. This would make it more likely that innocent people are 
convicted in cases involving irreconcilable conflict, where 
accommodation cannot protect the rights of both the victim and 
the accused.
    \43\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess., at 109-11 (July 7, 1998).
    Conflicts between the victims' rights created by S.J. Res. 
44 and the protections accorded defendants by the Bill of 
Rights likely would be infrequent, but they would occur. 
Indeed, as currently drafted, S.J. Res. 44 practically invites 
conflict in several important areas.

1. Giving victims rights at the accusatory stage of criminal 
        proceedings undercuts the presumption of innocence

    Not all who claim to be victims are indeed victims and, 
more significantly, not all those charged are the actual 
perpetrators of the injuries that victims have suffered. By 
naming and protecting the victim as such before the accused's 
guilt has been determined, the proposed amendment would 
undercut one of the most basic components of a fair trial, the 
presumption of innocence.
    Consider a simple assault case in which the accused claims 
that he was acting in self-defense. Absent some sort of 
corroborating evidence, the jury's verdict will likely turn on 
who it believes, the accused or his accuser. The amendment 
treats the accuser as a ``victim,'' granting him broad 
participatory and other rights, before a criminal or even a 
crime has been established. Once charges have been brought--and 
the charges may be based on little more than the accuser's 
allegations--the accuser is entitled to attend all public 
proceedings and to have a say as to whether the accused should 
be released on bond, making it more likely that the accused 
will be imprisoned until the conclusion of the trial. While 
society certainly has an interest in preserving the safety of 
the victim, this fact alone cannot be said to overcome a 
defendant's liberty interest as afforded to him under the due 
process and excessive bail clauses.

2. A victim's right not to be excluded could undermine the accused's 
        right to a fair trial

    The proposed amendment gives victims a constitutional right 
not to be excluded from public proceedings. Establishing such a 
preference for victims does not require a constitutional 
amendment, unless it is intended to create an absolute right 
that would be used to overcome a right currently afforded 
defendants. That is precisely what this provision would 
accomplish. But while crime victims have a legitimate interest 
in attending public proceedings involving matters that impacted 
their lives, this is not a limitless interest. At the point 
where the victims' presence threatens or interferes with the 
accuracy and fairness of the trial, restrictions should be 
    Accuracy and fairness concerns may arise, as we have 
already discussed, where the victim is a fact witness whose 
testimony may be influenced by the testimony of others. Another 
example is the case in which the victim or her family acts 
emotionally or disruptively in front of the jury. Whether done 
purposefully or unintentionally, a victim exhibiting such 
behavior may unfairly prejudice the defendant.
    Indeed, by making the right of victims to be present very 
difficult, if not impossible, to forfeit, S.J. Res. 44 may 
encourage disruptive displays by victims--a manifestly 
illegitimate purpose for a constitutional amendment.\44\ Our 
Nation's jurisprudence explicitly warns against determinations 
of guilt and punishment based upon passion, prejudice or 
emotion, rather than reason or evidence.\45\
    \44\ 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, 1703-04 (1997).
    \45\  See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).
    Proponents of S.J. Res. 44 dismiss such concerns out-of-
hand. The majority report declares that crime victims would 
have ``no right'' to engage in either disruptive behavior or 
excessive displays of emotion. The Attorney General claims that 
``common sense flexibility'' would preserve judges' authority 
to keep courtrooms free from disruptive observers, even when 
those observers are victims.\46\ But it is not at all clear how 
``common sense flexibility'' could prevail over an inflexible 
constitutional right ``not to be excluded''.
    \46\ Hearing of Apr. 16, 1997, at 133 (responses of Attorney 
General Janet Reno to questions from Sen. Patrick J. Leahy).

3. A victim's right to be heard could undermine the accused's right to 
        a fair trial

    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. What happens when a victim's 
testimony is irrelevant, unduly or unnecessarily prolongs the 
proceedings, or is so inflammatory that justice would be 
undermined? Passage of the proposed amendment would make it 
much more difficult for judges to limit testimony by victims at 
trial and capital sentencing proceedings.

4. A victim's right to expedite trial proceedings could undermine the 
        accused's sixth amendment rights

    S.J. Res. 44 gives victims of violent crimes a right to 
``trial free from unreasonable delay.'' Just as this provision 
risks forcing prosecutors to trial before they are fully 
prepared, it risks forcing defendants to do the same. 
Defendants may also seek to postpone the trial to let 
prejudicial publicity about the case dissipate. Under the 
proposed amendment, 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.

5. Constitutionalizing victims' rights raises equal protection concerns

    We should consider the question of equal protection and 
equality of treatment of our defendants. During one hearing, 
Representative Robert C. Scott asked what happens when a 
prosecutor routinely recommends a 1-year sentence for first-
offense burglary, but the victim is unusually emotional or 
articulate: should that defendant get more time than a 
defendant whose victim is inarticulate or even absent? \47\ By 
the same token, should the amount of time that a defendant 
spends in jail turn on the effectiveness of the victim's 
    \47\ Hearing of Apr. 16, 1997, at 34, 35 (statement of Rep. Robert 
C. Scott).
    The United States is world renowned and admired for its 
system of public prosecutions. It bespeaks our leadership in 
the precepts of democracy that justice is mandated for all 
citizens. No individual or group is favored. Wealth does not 
determine whose case gets prosecuted, or how well. Crime 
victims themselves benefit from this system, as the majority 
report acknowledges. We should think long and hard before we 
revert to a system of private prosecutions based on wealth, 
power, and campaign contributions.

6. Construed to avoid any conflicts with defendants rights, the 
        proposed amendment becomes purely hortatory

    Attempting to divert attention from the foreseeable 
consequences of this proposal, some supporters of S.J. Res. 44 
maintain that it would not, and was never intended to, 
denigrate the rights of the accused in any way. Indeed, one 
cosponsor has flatly asserted:

          There is no inconsistency between the rights of the 
        accused and recognizing in a formal sense the victim's 
        rights. * * * [T]here is not even a hypothetical case 
        that has been put forward where there is a conflict 
        between the rights guaranteed to the accused under our 
        Constitution and the rights we are proposing * * * be 
        enshrined in the Constitution for victims. There is no 
        denigration, there is no choice required. This is not a 
        matter of requiring anyone to say, in order to give a 
        victim a right, we have to take away any right of the 
        accused. If that were the case * * * I would not 
        support this amendment.\48\
    \48\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess., at 19-20 (June 25, 1998) (statement of Sen. Joseph R. 
Biden, Jr.).

The problem with this position, however, is that it proves too 
much. For if it were always possible to accommodate the 
constitutional rights of both the accused and the victim--a 
prospect that we, like the Department of Justice, find 
unlikely--then the proposed amendment would become purely 
hortatory. Professor Philip Heymann, a former Associate Deputy 
Attorney General, stated the matter succinctly:

          If it is not intended to free the States and Federal 
        Government from restrictions found in the Bill of 
        Rights--which would be a reckless tampering with 
        provisions that have served us very well for more than 
        200 years--it is unclear what purpose the amendment 
    \49\ Philip B. Heymann, A Proposed Victims' Rights Constitutional 
Amendment: Against an Amendment, State-Federal Judicial Observer, No. 
14, at 1 (Apr. 1997).

The Constitution of the United States is no place for symbolic 
decorations that fail to define real rights or to give real 


    For all the reasons discussed above, passage of this well-
meaning amendment could well prove counter-productive, 
accomplishing little while making the lives of crime victims 
more difficult. ``We should never lose sight of the fact that 
the very best way that [we] * * * can serve victims of crime is 
to bring those responsible for crime to justice.'' \50\ Crime 
victims would be the first to suffer--and criminals the first 
to benefit--from a constitutional amendment that hindered 
prosecutors, forced law enforcement agencies to divert scarce 
resources from actual crime-fighting efforts, and clogged the 
courts with time-consuming, justice-delaying litigation. 
Moreover, few benefit if, in the end, the proposed amendment 
undermines core constitutional guarantees designed to protect 
all of us from wrongful convictions.
    \50\ Hearing of Apr. 16, 1997, at 42 (statement of Attorney General 
Janet Reno).

         IV. The Proposed Amendment Infringes on States' Rights

    The proposed amendment constitutes a significant intrusion 
of Federal authority into a province traditionally left to 
State and local authorities. Many of our colleagues, in making 
their arguments in support of S.J. Res. 44, point out that 
nearly 95 percent of all crimes are prosecuted by the States. 
It is precisely that rationale that leads us to conclude that 
grants of rights to crime victims are--whenever possible--best 
left to the States to provide.
    If the Federal Government had the general police power, 
then mandating a companion power to protect the rights of 
victims of crime would at least be consistent. But the Federal 
Government does not have this power. As the Supreme Court 
recently reminded us in United States v. Lopez,\51\ there is no 
general Federal police power. ``Under our Federal system, the 
States possess primary authority for defining and enforcing the 
criminal law.'' \52\ S.J. Res. 44 would dramatically alter this 
framework by locking States into an absolutist national pattern 
regarding the participation of victims in the criminal justice 
    \51\ 514 U.S. 549 (1995).
    \52\ Id. at 561 n.3 (internal quotation marks omitted). See also 
Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion) 
(``Our national government is one of delegated powers alone. Under our 
federal system the administration of criminal justice rests with the 
States except as Congress, acting within the scope of those delegated 
powers, has created offenses against the United States.'')
    The majority report attempts to deflect the federalism 
concerns raised by S.J. Res. 44 by suggesting that the States 
will retain ``plenary authority'' to implement the amendment 
within their own criminal systems. We find this suggestion 
surprising given the plain language of theamendment's 
implementation clause (in section 3): ``The Congress shall have the 
power to enforce this article by appropriate legislation.'' Identical 
language in earlier constitutional amendments has been read to vest 
enforcement authority exclusively in the Congress.
    In the case of S.J. Res. 44, moreover, the text is 
illuminated by the legislative history. Earlier drafts of the 
amendment expressly extended enforcement authority to the 
states.\53\ These drafts drew fire from constitutional 
scholars, who expressed doubt that constitutionally-authorized 
State laws could be supreme over State constitutions or even 
over Federal laws, and concern that, for the first time, rights 
secured by the Federal Constitution would mean different things 
in different parts of the country. The Committee then amended 
the text to its current formulation. Faced with this history 
and text, courts will surely conclude that S.J. Res. 44 
deprives States of any authority to legislate in the area of 
victims' rights.
    \53\ For example, S.J. Res. 52, introduced in the second session of 
the 104th Congress, provided: ``The several States, with respect to a 
proceeding in a State forum, and the Congress, with respect to a 
proceeding in a United States forum, shall have the power to implement 
further this article by appropriate legislation.'' Similarly, S.J. Res. 
6, introduced in the first session of this Congress, provided: ``The 
Congress and the States shall have the power to enforce this article 
within their respective jurisdictions by appropriate legislation, 
including the power to enact exceptions * * *''
    This is troubling in three regards. First, S.J. Res. 44 
would have an adverse effect on the many State and local 
governments which are already experimenting with a variety of 
innovative victims' rights initiatives. Second, it would create 
an enormous unfunded burden for State courts, prosecutors, law 
enforcement personnel, and corrections officials. Third, it 
would lead inevitably to Federal court supervision and micro-
management of noncomplying State and local authorities.

                     A. THE STATES AS LABORATORIES

    In the words of Supreme Court Justice Louis D. Brandeis, 
writing in New State Ice Co. v. Liebmann: ``It is one of the 
happy incidents of the Federal system that a single courageous 
state may, if its citizens choose, serve as a laboratory; and 
try novel social and economic experiments without risk to the 
rest of the country.'' \54\ The victims' movement has induced 
all 50 States to serve as laboratories. Through statutes and 
State constitutional amendments, the States are experimenting 
with varied approaches to blending the competing interests of 
victims, prosecutors, and defendants in search of an 
enlightened formula.
    \54\ 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
    State experimentation with victims' rights initiatives is 
relatively new and untested; the laboratory evidence is as yet 
inconclusive. S.J. Res. 44 creates a national standard for 
victims' rights and gives Congress exclusive power to enforce 
that standard by appropriate legislation. It thus forecloses 
the States from experimenting and exercising their judgment in 
an area to which the States lay claim by right of history and 
    That's why the States' top jurists oppose it. The 
Conference of Chief Justices has expressed ``deep concerns'' 
with the federalism issues presented by the amendment; it has 
taken the position that the States' efforts on behalf of crime 
victims ``provide a significantly more prudent and flexible 
approach for testing and refining novel legal concepts.'' \55\
    \55\ Letter from Joseph R. Weisberger, Chief Justice, Supreme Court 
of Rhode Island, Chairperson, Conference of Chief Justices Task Force 
on Victim Rights, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the 
Judiciary, at 1 (May 16, 1997).
    That's why the largest victim assistance agency in the 
country opposes it: Victim Services calls S.J. Res. 44 
``premature'' and points out the need for more research.\56\
    \56\ Letter from Chris Whipple, Acting Executive Director, Victim 
Services, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the 
Judiciary 1 (June 9, 1998).
    At a minimum, we should explore the effectiveness of the 
state efforts and the nuances of their various approaches 
before grafting a rigid, untested standard onto the U.S. 
Constitution. We should have more information about what the 
states are failing to do before the Federal Government shuts 
down their research.
    Example: The States' experimentation has not yet led to a 
consensus on the appropriate scope of the victim's right to 
attend trial proceedings at which they are going to be called 
as witnesses. A few States, including Alabama and Arkansas, 
have specifically provided that the rule regarding exclusion of 
witnesses does not apply to victims.\57\ Other States have 
taken a hybrid approach, whereby the victim has the right to 
attend only after the victim has testified, as in Louisiana, 
Michigan, New Jersey, and Washington.\58\ Washington's law also 
specifies that while a victim may be excluded until after 
testifying, the victim has the right to be scheduled as early 
in the proceedings as possible. Overall, a majority of States 
give the trial judge discretion to exclude the victim, either 
as a witness or to preserve the defendant's right to a fair 
trial generally. A categorical Federal constitutional rule that 
victims must never be excluded would nullify these State 
judgments about the appropriate way to balance the competing 
interests involved.
    \57\ Ala. Stat. Sec. 15-14-55; Ark. R. Evid. 616.
    \58\ La. Code Evid. Art. 615(A)(4); Mich. Comp. Laws Ann. 
Sec. 780.761(11); N.J. Const. Art. 1, para. 22; Wash. Rev. Code Ann. 
Sec. 7.69.030(11).
    The States' overall approaches to victims' rights are also 
markedly different. California amended its constitution in June 
1982 to include a modest ``Victim's Bill of Rights.'' The 
rights enumerated include the right to ``truth-in-evidence'' 
and the ``basic expectation that persons who commit felonious 
acts causing injury to innocent victims will be appropriately 
detained in custody, tried by the courts, and sufficiently 
punished so that the public safety is protected and encouraged 
as a goal of highest importance.'' \59\ According to Senator 
Feinstein, the California approach is working; it has been 
protecting the victim's right to be treated with dignity and 
respect within the criminal justice system.\60\
    \59\ Ca. Const. Art. I, Sec. 28.
    \60\ Exec. Comm. Meeting, Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess., at 12 (Jul. 7, 1998).
    Arizona is another State with a constitutional amendment 
declaring a ``Victims' Bill of Rights,'' but it has ventured 
substantially further than California. Approved in November 
1990, Arizona's amendment guarantees victims a series of 
rights, including the right (1) to be informed when an accused 
or convicted person is to be released from custody or has 
escaped; (2) to be present at and, upon request, to be informed 
of all upcoming proceedings; (3) to be heard at any proceeding 
involving a post-arrest or post-conviction release decision, a 
negotiated plea, or sentencing; (4) to refuse an interview, 
deposition, or other discovery request by the defendant; (5) to 
confer with the prosecution and to be informed of the 
disposition; (6) to read pre-sentence reports; (7) to receive 
prompt restitution; (8) to a speedy trial or disposition and 
prompt and final conclusion of the case after the conviction 
and sentence; and (9) to be informed of their rights as 
victims.\61\ Will this detailed enumeration of rights work 
better than California's system? It is too soon to tell. Yet 
S.J. Res. 44 could preempt the field, sweeping away all laws, 
ordinances, precedents, and decisions, compatible and 
incompatible alike, or any matter touching upon the same 
    \61\ Az. Const. Art. II, Sec. 2.1(A).
    In response to our questions from the April 28, 1998 
hearing, the Department of Justice made clear that the only 
reason to adopt an amendment as opposed to a statute is to 
provide a uniform national rule rather than allow States to 
adopt provisions that the State legislatures and voters think 
will best suit their local needs. The Department's recent 
report on victims' rights, quoted in the majority report, also 
emphasizes the need ``to rectify the current inconsistencies in 
victims' rights laws that vary significantly from jurisdiction 
to jurisdiction.'' \62\
    \62\ OVC,  New Directions from the Field: Victims Rights and 
Services for the 21st Century 10 (May 1998).
    Do we need to correct some outrage that Arizona is 
perpetrating? Is there something that California simply refuses 
to do for victims? We are assuming that there is one and only 
one way to do this, and that we here in Washington D.C. know 
the way and the States do not, even though most of the 
experience has been in the States. That is arrogant, to say the 
    Victim Services said it best: ``Before undertaking the 
momentous step of amending the U.S. Constitution, the right 
course is surely to examine the existing legislative and 
regulatory schemes and ascertain what is working best in 
practice.'' \63\
    \63\ Letter from Chris Whipple, Acting Executive Director, Victim 
Services, to Sen. Orrin G. Hatch, Chairman, Senate Comm. on the 
Judiciary 1 (June 9, 1998).

                          B. UNFUNDED MANDATE

    We have already discussed the potentially staggering costs 
that S.J. Res. 44 could impose on the 50 States. Congress has a 
responsibility to investigate these costs thoroughly and to 
explore the drastic shift in resources that could result if the 
amendment were ratified. Congress has not yet undertaken this 
important task. We need more information from the States about 
how much it costs to implement these programs, and what sort of 
resources are needed to be successful before we rush to 
validate a series of rights that could overwhelm the Nation's 
criminal justice system.
    Largely for this reason there is growing opposition to the 
proposed amendment among some of the very people who most 
strongly support victims' rights--prosecutors and law 
enforcement officers. They are sympathetic to victims, and 
would welcome the resources to enable them to provide victims 
with notice and other assistance. They do not, however, want 
another unfunded mandate that will have the Federal courts and 
special masters directing the activities of their under-funded 
offices. Instead of unfunded mandates, we need to encourage 
States to provide the support and services that many victims of 
crimes need and deserve.

                      C. FEDERAL COURT SUPERVISION

    Under S.J. Res. 44, a victim does not have the ability to 
sue for damages. A victim may, however, ask a Federal court for 
injunctive or declaratory relief against State officials, and 
possibly a writ of mandamus. The resulting interference with 
State criminal proceedings would be unprecedented and ill-
    Even more alarming is the specter of Federal class actions 
against noncomplying State authorities. When we asked the 
Department of Justice what sort of relief there might be when 
district attorney offices failed, as many now are failing, to 
provide full notice for victims, they said that the relief 
would be court orders like those in prison reform litigation. 
There is the potential for big costs to States, enormous 
expenditure of judicial resources, and undignified hauling into 
court of local prosecutors, judges, and corrections officers.
    The States chief justices have expressed grave concerns 
that the proposed constitutional amendment would lead to 
``extensive lower Federal court surveillance of the day to day 
operations of State law enforcement operations.'' \64\ We share 
these concerns. The laudable goal of making State and local law 
enforcement personnel more responsive to victims should not be 
achieved by establishing Federal court oversight of the 
criminal justice and correctional systems of the 50 States.
    \64\ See Letter from the Joseph R. Weisberger, Chief Justice, 
Supreme Court of Rhode Island, Chairperson, Conference of Chief 
Justices Task Force on Victim Rights, to Sen. Orrin G. Hatch, Chairman, 
Senate Comm. on the Judiciary, at 1 (May 16, 1997).
    ``[F]ederalism was the unique contribution of the Framers 
to political science and political theory,'' \65\ and it has 
served this country well for over 200 years. We do not need a 
constitutional amendment to turn this system on its head. We 
have no pressing reason to thwart the States' experimentation 
with innovative victims' rights initiatives and to displace 
State laws in an area of traditional State concern. We have no 
compelling evidence pointing to the need for another unfunded 
mandate. And we certainly do not need more Federal court 
supervision and micro-management of State and local affairs.
    \65\ Lopez, 514 U.S. at 575 (Kennedy, J., concurring).

        V. The Wording of the Proposed Amendment Is Problematic

    As the preceding analysis has shown, any amendment to the 
Constitution to provide for victims rights would be fraught 
with problems, ranging from resource and training issues to a 
plethora of unintended consequences. But in addition to the 
general problems associated with a constitutional amendment, 
the specific language of S.J. Res. 44 is problematic.
    Now in its 62nd draft, the proposed amendment remains 
decidedly vague, its key terms undefined. Far more work is 
needed before we can even debate its merits intelligently. As 
it stands, years of litigation would be necessary to flesh out 
the amendment's actual scope, enforcement mechanisms, and 
remedial nature.

                  A. THE TERM ``VICTIM'' IS UNDEFINED

    Most conspicuous in its absence from S.J. Res. 44 is any 
definition or explanation of the critical term ``victim.'' Is 
the proposed amendment intended to give victim status only to 
those individuals who suffer personal injury as the result of a 
crime? Or is the intent to ensure that members of the immediate 
family are given victim status? What about cousins, close 
friends, neighbors? The list of potential victims is lengthy. 
In cases like the Oklahoma City bombing, where 168 people were 
killed and hundreds more were injured, would the State and 
Federal courts be required to hear statements from possibly 
thousands of people claiming victim status?
    The failure to define ``victim'' raises another set of 
problems with respect to crimes committed, or allegedly 
committed, in self defense. For example, victims of domestic 
violence may respond to repeated attacks by striking back at 
their abusive spouses. In these cases, the victim of repeated 
abuse becomes the defendant, and the abusive spouse becomes the 
victim. If the proposed amendment is enacted, the abusive 
spouse might have a constitutional guarantee of access to 
information that includes when the defendant is released from 
custody, which might leave her vulnerable to violent 
retaliation. The National Clearinghouse for the Defense of 
Battered Women, the National Network to End Domestic Violence, 
and several State and local domestic violence support 
organizations--including organizations from Louisiana, Iowa, 
North Dakota, Wisconsin, Pennsylvania, and Wyoming--all oppose 
S.J. Res. 44 for this reason.
    Illustrative of the peculiar problems raised by domestic 
violence cases is State ex rel. Romley v. Superior Court, 836 
P.2d 445 (Ariz. Ct. App. 1992). Defendant Ann 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 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, not the husband, made the 911 call to 
the police, asking for help because her husband was beating her 
and threatening her with a knife. Under these circumstances, 
the Arizona Court of Appeals came to the sensible conclusion 
that the defendant's due process rights superseded the State 
law right of the husband/``victim'' to refuse to disclose his 
medical records.
    While nothing in S.J. Res. 44 would directly compromise the 
holding in Romley, the case does expose the risk in creating 
blanket constitutional protections for ``victims'' without 
first considering and resolving who these ``victims'' may be. 
In a world where the rights of the accused must yield to the 
rights of the accuser, we must define our terms carefully. The 
sponsors of S.J. Res. 44 want to shelve the difficult 
definitional debate until such time as Congress is called upon 
to implement the amendment. But it is premature to pass this 
proposal on to the States for ratification without providing 
clear guidance on this basic issue. -


    The scope of the proposed amendment also turns on a second 
undefined term, ``crime of violence.'' Ordinarily, crimes of 
violence are those involving some use of physical force against 
a person. Thus, the term may be limited to crimes that produce 
physical injury (e.g., murder, assault, and rape). In some 
contexts, however, the term ``crime of violence'' has been 
defined or interpreted to include crimes involving some use of 
force against another's property (e.g., arson) and crimes that 
merely threaten physical injury or property damage (e.g., 
extortion, robbery, and burglary). Existing Federal law already 
provides several different definitions of ``crime of 
violence,'' including one that covers statutory rape, abusive 
sexual contact, and sexual exploitation of minors.\66\
    \66\ See, e.g., 18 U.S.C. Sec. Sec. 16, 924(c)(3), 3156(a)(4); 28 
U.S.C. Sec. 2901. Section 3156(a)(4)(C) incorporates felonies under 
chapter 109A and chapter 110, relating to sexual abuse and sexual 
exploitation of children.
    Again, the sponsors of this bill promise to define the term 
``crime of violence'' in the implementing legislation. Again, 
we believe it is imprudent to ask States to ratify a 
constitutional amendment before they know the full scope and 
scale of its effects.


    S.J. Res. 44 requires that victims be given ``reasonable 
notice'' of developments in their cases. But, again, the term 
is undefined within the text of the proposed amendment. Just 
what constitutes``reasonable notice?'' For example, in cases 
where an inmate is released from custody, what is a reasonable amount 
of time to wait before notifying the crime victim? Is it 30 minutes? 
Two hours? Twenty-four hours? Does it depend on where the inmate was 
imprisoned, or the distance of the inmate from the victim at the time 
of release?
    Besides the ambiguity of the timing requirement, the term 
``reasonable notice'' gives no indication as to what manner of 
notice a victim is entitled. Must the Government invariably 
provide direct written notice to victims? May the government 
simply publish notice in a local newspaper, as it may sometimes 
do to perfect the forfeiture of a person's property.\67\ Is it 
enough that the court publishes its calendar? Until we have 
some idea what notice is ``reasonable,'' we cannot begin to 
assess what the proposed amendment will actually mean in terms 
of administrative time and cost.
    \67\ See, e.g., 21 U.S.C. Sec. 853(n)(1).


    The proposed amendment appears to offer a rather limited 
scope of possible remedies for those victims who believe their 
rights were violated. Section 2 provides, in part: ``Nothing in 
this article shall provide grounds to stay or continue any 
trial, reopen any proceeding or invalidate any ruling, except 
with respect to conditional release or restitution or to 
provide rights guaranteed by this article in future 
proceedings, without staying or continuing a trial.'' If a 
remedy is contemplated by this provision, its lack of 
definition will lead to more costly and time consuming 
litigation. In particular, courts will struggle to give meaning 
to the exception for ``future proceedings.''
    Section 2 also prohibits claims for damages against 
governmental entities. It states: ``Nothing in this article 
shall give rise to or authorize the creation of a claim for 
damages against the United States, a State, a political 
subdivision, or a public officer or employee.'' The majority 
report attempts to assuage victims' groups by suggesting that 
this prohibition may not be as absolute as it sounds. According 
to the Report, while section 2 does not itself ``give rise to'' 
a cause of action against the Government, nor does it preclude 
such a cause of action under other legislation--and it cites as 
an example 42 U.S.C. Sec. 1983. This strained reading of the 
phrase ``give rise to'' ignores the separate proviso that 
nothing in the amendment shall ``authorize the creation of'' 
claims for damages against the government. If the amendment 
were meant to authorize such claims, it would not use the 
language of prohibition.
    Roger Pilon, director of the Cato Institute's Center for 
Constitutional Studies, compares the proposed amendment to the 
generous legacy in a pauper's will: It promises much but 
delivers little.\68\ To the extent that the proposed amendment 
creates rights without remedies, it is worse than useless. 
Rights without remedies are empty promises that in time 
undermine confidence in the very document that contains them--
in this case, the U.S. Constitution.
    \68\ Statement of Roger Pilon regarding S.J. Res. 6, prepared for 
the Senate Comm. on the Judiciary, at 6 (Apr. 16, 1997).


    In an attempt to address some of the concerns raised by the 
potential sweep of the proposed amendment, its sponsors have 
included an exceptions clause (in section 3) to allow for 
exceptions to be created ``when necessary to achieve a 
compelling interest.'' However, a ``compelling interest'' 
standard may be too strict to deal appropriately and 
effectively with the variety of difficult circumstances that 
arise in the course of criminal proceedings.
    The term ``compelling interest'' has a relatively settled 
meaning. Indeed, there is hardly a term in contemporary legal 
usage that is clearer or more restrictive. Interpreting this 
term, the Justice Department has told us that it may not permit 
the creation of various exceptions, including exceptions that 
may be appropriate for cases involving crimes with mass 
victims, culpable victims, cooperating defendants, and 
incarcerated victims.\69\ To make matters worse, we have no way 
of knowing in advance, before it is too late, whether courts 
will consider any particular problem sufficiently compelling to 
justify an exception.
    \69\ A Proposed Constitutional Amendment to Protect Crime Victims, 
Transcript of Proceedings on S.J. Res. 44 before the Senate Comm. on 
the Judiciary, 105th Cong., 2d Sess., at 23 (Apr. 28, 1998) (statement 
of Raymond C. Fisher, Associate Attorney General); Letter from L. 
Anthony Sutin, Acting Assistant Attorney General, to Sen. Orrin G. 
Hatch, Chairman, Senate Comm. on the Judiciary (June 17, 1998).
    The majority report's discussion of the exceptions clause 
is yet another exercise in political expediency. As previously 
discussed, one of the major problems with the amendment is how 
it will affect the treatment of battered women who may be 
either victim or defendant depending upon whether they are 
being beaten or whether they react to their beatings by self-
help violence that may be legally justified but nonetheless 
prosecuted. The majority report states that the exceptions 
clause ``offers the flexibility'' to modify victims' rights 
provisions ``in some cases of domestic violence [where] the 
dynamics of victim-offender relationships may require [it].'' 
To say that the restrictive ``compelling interest'' test 
``offers * * * flexibility'' is a ridiculous statement 
obviously meant to manipulate words beyond any recognizable 
meaning. What the majority is attempting to say, apparently, is 
that the words of the amendment mean whatever is politically 
popular to say they mean in order to achieve adoption by the 
Senate and ratification by the States.
    Beyond all this, the exceptions clause is also problematic 
because it does not identify who may create exceptions to the 
amendment's requirements. Does the power to create exceptions, 
like the general enforcement power, fall exclusively to 
Congress? This would further weaken State and local control 
over law enforcement operations and criminal proceedings. Could 
exceptions be crafted by State judges in individual cases? This 
runs the risk that Federal constitutional rights would, for the 
first time, mean different things in different States.
    These concerns are just a sampling of the possible problems 
that will be confronted by law enforcement officers, 
prosecutors, and judges as they grapple with the implementation 
and enforcement of the provisions of the proposed amendment. As 
the Federal Public Defenders aptly concluded, ``the proposed 
amendment is a litigator's dream and a victim's nightmare.'' 
    \70\ Letter from Thomas W. Hillier on behalf of the Federal Public 
and Community Defenders, to Sen. Orrin G. Hatch, Chairman, Senate Comm. 
on the Judiciary (June 10, 1998).

                             VI. Conclusion

    We must not hamstring our prosecutors and sacrifice core 
protections guaranteed by the Bill of Rights to enact this 
unnecessary and problematic constitutional amendment on 
victims' rights.

                                   Patrick Leahy.
                                   Ted Kennedy.
                                   Herb Kohl.


    We are committed to providing rights for victims of crime, 
and we share the desire of our colleagues to ensure that 
victims are given strong and enforceable rights in the criminal 
justice process. But we believe that all possible solutions 
should be carefully considered. One issue that has remained 
unexplored in any comprehensive way is the possibility of 
enacting all of the rights proposed in S.J. Res. 44 by Federal 

               The Crime Victims Assistance Act, S. 1081

    It is because of our strong belief in protecting the rights 
of victims that we introduced S. 1081, The Crime Victims 
Assistance Act, in July 1997. However, despite our repeated 
requests for a hearing on our bill, no serious consideration 
has been given to our statutory alternative. This is 
unfortunate, since our bill provides the very same rights to 
victims as the proposed constitutional amendment and, in fact, 
addresses many of the concerns raised by our colleagues during 
debate over S.J. Res. 44.
    Title I of our bill reforms Federal law and the Federal 
rules of evidence to provide enhanced protections to victims of 
Federal crime, from the time of the defendant's arrest through 
sentencing, including post-sentencing hearings. S. 1081 assures 
victims a greater voice in the prosecution of the criminals 
that hurt them and their families. It gives them the right to 
be present and to be heard at all public proceedings, including 
sentencing, detention, probation revocation, and negotiated 
plea hearings. It provides the right to reasonable notice of 
release or escape from custody, and ensures a speedy trial in 
the interest of the victim. In short, our statutory proposal is 
very similar to S.J. Res. 44.
    But, our statutory proposal goes much further than the 
proposed amendment. First, our bill provides additional 
penalties for witness tampering--so in cases where a defendant 
or person acting in concert with the defendant attempts to 
intimidate a victim, that person will be subject to stiffer 
penalties. Our bill creates a wide range of victims' services 
outside the courtroom. It increases victims' assistance 
personnel to serve as victim-witness advocates to victims of 
any criminal offense investigated by Federal authorities. And, 
it creates ombudsman programs to ensure that victims are given 
unbiased information about navigating the criminal justice 
process from a trained professional.
    Our bill also addresses several of the concerns raised by 
our colleagues about the ability of the Federal Government to 
create exceptions to granting the rights of victims. S. 1081 
creates explicit exceptions in cases where the defendant has 
cooperated with the Government or when a judge believes that 
there is a significant expectation of physical violence or 
other retaliation by the victim against the defendant. This 
will particularly help victims of domestic violence, but could 
be used in other self-defense cases and also in racketeering 
cases. In general, these exceptions are essential to ensuring 
that all victims are protected while ensuring that the ability 
of prosecutors to put criminals behind bars is left intact.
    In response to concerns raised by the National Victim 
Center and other victims service organizations, our statute 
directs the Attorney General to promulgate regulations that 
will extend the implementation and enforcement of our bill to 
victims of fraud, provided that such victims are natural 
persons and not corporate entities. We direct the Attorney 
General to do this within 180 days of the date of enactment of 
our statutory alternative. We believe this is a necessary and 
important step toward ensuring that victims of telemarketing 
schemes and other pecuniary fraud are also granted key rights 
in the criminal justice process. Each year, con artists steal 
nearly $40 billion from unsuspecting consumers, according to 
the National Consumers League's National Fraud Information 
Center. And, the American Association of Retired Persons 
estimates that more than half of telemarketing fraud victims 
are age 50 or older.
    Elderly individuals whose life savings are swindled by con 
artists, or individuals who lose large sums of money in 
telemarketing or pyramid schemes are just as much victims as 
are individuals who are mugged--and in some cases may suffer 
longer-lasting financial and emotional trauma. Yet S.J. Res. 44 
does not address this important--and growing--class of victims. 
Our statute does, and we believe that alone makes it a more 
attractive victims' rights proposal than S.J. Res. 44.
    The rights established by title I of our statutory proposal 
will fill existing gaps in Federal criminal law and will be a 
major step toward ensuring that the rights of victims of 
Federal crimes receive appropriate and sensitive treatment. 
These new rights will work in tandem with the myriad existing 
State laws to protect the rights of victims without trammeling 
on States' rights to protect victims in ways appropriate to 
States' unique needs.
    Title II of our statutory proposal aims to assist victims 
of State crime and to ensure that victims receive the 
counseling, information, and assistance they need to 
participate in the criminal justice process to the maximum 
extent possible. First, title II authorizes appropriations for 
the Attorney General to provide grants to fund 50 victim-
witness advocate positions to assist victims of State crimes. 
It also authorizes 50 new victim-witness advocates to provide 
assistance to victims of any Federal criminal offense 
investigation. Title II of our bill also provides increased 
training for state and local law enforcement, State court 
personnel, and officers of the court to respond effectively to 
the needs of victims of crime. It also provides resources for 
these offices to develop state-of-the-art systems for notifying 
victims of crime of important dates and developments.
    In general, our proposed statute addresses the concerns of 
Senator Thompson and others about states' rights, because it 
would not impinge upon the rights of the States to implement 
and enforce their own victims' rights proposals in ways that 
are appropriate to address their local concerns. This is also 
significant because--unlike the proposed constitutional 
amendment--our statutory proposal is not an unfunded mandate 
that will impose tremendous new burdens on the States. In fact, 
our statutory proposal explicitly authorizes funding to 
implement the new rights created. It resolves within the text 
the question of how the new rights it creates will be funded.


    S.J. Res. 44 is not the panacea that its proponents claim. 
The constitutional amendment passed by this Committee amounts 
to a lot of symbolism and very little substance. It does not 
specify who will pay for the new rights it accords victims. It 
does not clearly define who is a victim and which crimes will 
result in enhanced victims rights. It does not specify how new 
programs and constitutional requirements will be funded. It 
will not cover the thousands of victims of devastating 
pecuniary crimes. And, because it requires an increased burden 
on the already tight budgets of State and local prosecutors' 
offices, the proposed amendment will sacrifice diligent and 
efficient prosecutions on the altar of victims' rights. In 
short, the language of S.J. Res. 44 amounts to a lot of empty 
promises. Our statutory substitute is clearly written, 
comprehensive, and timely. We should not amend our Constitution 
lightly, and we should not amend it with empty promises to 
victims. Instead, we remain hopeful that this Committee will 
consider the Leahy-Kennedy Crime Victims Assistance Act.

                                   Patrick Leahy.
                                   Ted Kennedy.


    I have long been devoted to both the plight of crime 
victims and the preservation of our constitutional liberties. I 
wrote and supported many legislative victims' protections. The 
1994 Biden Crime Law gave victims of violent crimes and sexual 
abuse the right to be heard at the sentencing of their 
assailants. The Violence Against Women Act provided sweeping 
assistance to victims of family violence and sexual assault, 
the Anti-Terrorism Act included Hatch-Biden provisions 
guaranteeing mandatory restitution to all victims of violent 
Federal crimes, and now I am pleased to support a 
constitutional victims' rights amendment.
    Since more than 95 percent of all crimes are handled at the 
State level, our Federal statutory rights simply do not reach 
most crime victims. Therefore, I have concluded that it is time 
to write a basic charter of victims' rights into our 
Constitution setting a national, uniform baseline of rights for 
all victims of violent crimes. My three key specific principles 
for drafting the actual language of the amendment were:
    Principle number one: The amendment sets out the specific 
rights accorded constitutional status. Victims will be entitled 
to the following rights of participation: The right to be 
informed and be present at all public proceedings involving the 
crime; the right to make a statement to the court about bail, 
the acceptance of a plea, and sentencing; and the right to be 
informed of an escape or release.
    Principle number two: The amendment will not 
unintentionally hamstring criminal prosecutions. We cannot 
forget that the best thing for victims is to catch and convict 
criminals. We have to make sure that nothing in the amendment 
will make that job more difficult.
    Principle number three: The amendment will not deprive the 
rights of the accused. We must preserve the protections in our 
Constitution for the accused, such as the right to counsel, the 
right to a jury of one's peers, and the right against self-
incrimination. Defendants' rights are there, above all, so that 
our system does not convict an innocent person. Locking up an 
innocent person benefits no one, except the guilty.
    A constitutional amendment is needed to set a national, 
uniform baseline of rights for all victims of violent crimes. 
In every State, and in the Federal system, the doors of the 
criminal justice system must be opened to victims to make sure 
that they are meaningful participants, and not just spectators, 
in a system that has for too long kept them on the outside 
looking in. The Committee heard testimony about how judges, 
time and again, have kept victims out of the courtroom, or have 
refused to let them speak at sentencing, because judges 
perceive a conflict between a defendant's constitutional right 
and victims' statutory rights. That is not as it should be. 
Both the defendant and the victim can have the chance to 
    With a victims' constitutional amendment, we will be 
telling prosecutors and judges, loud and clear, victims must be 
respected and included. They have constitutional rights that 
must be taken into account during the entire case. However, a 
constitutional amendment for victims does not mean that 
victims' rights will take precedence over defendants' rights. I 
believe that the contradiction that many people see between the 
rights of defendants and the rights of victims is false. Our 
Constitution is not a zero sum game. We do not diminish the 
rights of defendants by recognizing the rights of victims. I 
agree with the intent of the amendment Senator Durbin offered 
inCommittee. Victims' rights must not diminish the rights of 
the accused.
    In fact, it is precisely because I agree that defendants' 
rights must be protected, and sought to protect defendants' 
rights throughout the process of drafting this amendment, that 
I believe the language Senator Durbin proposed is unnecessary 
to achieve our joint goal. Earlier drafts of the amendment 
arguably raised concerns that victims' rights might conflict 
with the fair trial rights of the accused, but because I 
insisted on several specific changes to ensure that defendants 
will be protected, I am confident that, in the words of 
Professor Tribe, ``no actual constitutional rights of the 
accused or of anyone else [will] be violated by respecting the 
rights of victims in the manner requested'' by the supporters 
of S.J. Res. 44.\1\
    \1\ S.J. Res. 6, a Proposed Constitutional Amendment to Protect 
Crime Victims: Hearings before the Senate Comm. on the Judiciary, 105th 
Cong., 1st Sess. 11 (1997) (prepared statement of Laurence H. Tribe).
    To give an example of the changes we have made: I was 
concerned that by giving victims' an absolute right to a speedy 
trial an earlier version of the amendment created the risk that 
a defendant's lawyer might be forced to proceed to trial 
without sufficient time to prepare a defense. We want to make 
sure, above all, that we get the right criminal, and that we do 
not convict an innocent person. We also want to make sure that 
the great police power of the Government is not exercised in 
heavy-handed, overreaching ways that threaten the 
constitutional liberties of all of us. Accordingly, the 
sponsors of earlier versions of the amendment agreed that we 
would draft S.J. Res. 44 to protect against the possibility 
that defendants, or prosecutors for that matter, would be 
forced to trial before they were ready.
    Rather than providing an absolute speedy trial right for 
victims, therefore, the new version of the amendment provides 
for ``consideration'' of the victim's interest ``that any trial 
be free from unreasonable delay.'' What this means in plain 
English is that before granting a third, fourth or fifth 
continuance, judges in every state, from Delaware to Utah to 
California, must take into account inconvenience and hardship 
to the victim, and must proceed with the trial unless there is 
a good reason to wait. This does not mean, however, that judges 
must push lawyers to try cases before they are ready, which 
could violate defendants' right to counsel and backfire on 
victims by causing guilty defendants to go free and innocent 
defendants to go to jail.
    To give another example of the concerns I raised with the 
amendment: We have heard testimony about how judges, time and 
again, have kept victims out of the courtroom, or have refused 
to let them speak at sentencing, because victims' rights were 
inadequate in the jurisdiction holding the trial. Though early 
drafts of the amendment gave victims the right to submit a 
statement at sentencing, along with standing to enforce the 
right, I was concerned that including even a limited right of 
allocution could diminish the defendant's constitutional rights 
in some cases. But I reviewed the case law and found that the 
contradiction that many people see between a defendant's fair 
trial rights and a victim's interest in speaking at sentencing 
is false. The courts that have excluded victim-impact witnesses 
from trials have generally done so based on a Federal or State 
rule of evidence, despite Congress' recognition that the policy 
of the Federal witness sequestration rule to discourage 
collusion of trial witnesses is ``not at issue'' in the context 
of a post-conviction sentencing hearing.\2\
    \2\ H.R. Rep. No. 28, 105th Cong., 1st Sess.
    The crucial point is this: In my view, the witness 
sequestration rule is a prophylactic measure rather than a 
constitutional imperative. The purpose of the rule can be 
accomplished through defense cross-examination of fact 
witnesses and jury instructions, without categorically 
excluding victims from the trial. Furthermore, if the policy of 
the rule applies at all to victim-witnesses testifying at 
sentencing, and I believe it does not, the proper remedy is not 
to exclude victim-impact testimony, but to allow the judge or 
jury charged with sentencing the convicted defendant to 
consider the victims' presence at trial as a factor in 
determining her credibility. This conclusion that the 
Constitution does not require exclusion of a victim from the 
trial proceedings solely based on her intention to testify at 
sentencing was implicit in our decision last year to reverse 
the order in the Oklahoma City bombing case. Both the 
defendant's right and the victim's right can, and must, be 
    Having performed a similar analysis of numerous 
hypothetical situations, I am now convinced that no potential 
conflict exists between the victims' rights enumerated in S.J. 
Res. 44 and any existing constitutional right afforded to 
defendants and that these rights ``can coexist side by side 
with defendants' rights.'' \3\
    \3\ Laurence H. Tribe and Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, Los Angeles Times Washington Edition, July 
6, 1998, at A11.
    Again, with a victims' constitutional amendment, we will be 
telling prosecutors and judges, loud and clear, that victims 
must be respected and included in both State and Federal courts 
throughout the Nation. Victims will have a uniform baseline of 
constitutional rights that must be taken into account during 
the entire case that cannot be ignored on the basis of vague 
assertions that they may be perceived as ``diminishing'' the 
rights of the accused. But let me repeat that the victims' 
rights constitutional amendment does not mean that victims' 
rights will take precedence over defendants' rights. The 
specific victims' rights secured in the amendment do not 
conflict with any existing constitutional rights of the 
    It is a pleasure to support a victims' rights amendment 
that will ensure victims of crime a voice and a measure of 
dignity and respect in the criminal justice process. All of us, 
I'm sure, wish that we could give them more. Certainly, they 
should have nothing less.

                                               Joseph R. Biden, Jr.


    The circumstances that created the perceived need for S.J. 
Res. 44, ``[t]he Victims' Rights Amendment,'' are quite 
disturbing and unfortunate. We are forced to consider this 
constitutional amendment because far too many people are 
victims of crime. And these victims rightfully want the ability 
to be heard and to participate in the process that is designed 
to redress the injuries they have suffered. They are concerned 
that our criminal justice system does not and will not 
recognize that they, as the victims, are directly affected by 
the process; that they have a real and tangible interest in the 
criminal justice process.
    Innocent victims have endured needless and unjustified 
physical and emotional suffering, and they do not want 
themselves or others to endure additional similar pain. 
Unfortunately, these same victims are sometimes wronged for a 
second time by the criminal justice system. These crime victims 
came to us with the very reasonable request that Congress 
ensure that other victims of crime have the right to be active 
and meaningful participants in the criminal justice system.
    While we recognize the significance of this issue and want 
victims to be treated with fairness, dignity, and respect, our 
concern is that amending the Constitution may hamper justice 
and not serve victims' best interests.
    The rights afforded to these crime victims should be 
concrete and enforceable, but S.J. Res. 44 has several 
provisions which are undefined and unworkable; provisions which 
must be later defined by legislatures or interpreted by the 
courts. As a result, a number of prosecutors and victims' 
rights advocates--many of whom have spent their careers 
fighting for crime victims--now have voiced their opposition to 
the proposed amendment. More specifically, many victims' rights 
advocates now oppose this amendment, because they believe that 
the rights afforded crime victims under the amendment's 
proposed language ``prohibits remedies necessary to adequately 
protect victims' rights.'' In other words, even if the proposed 
amendment enumerates certain rights for victims, in many 
instances, these victims will have no meaningful manner in 
which to enforce their rights. How can we as Members of 
Congress amend the U.S. Constitution to provide rights which in 
practice may only be illusory?
    A dispute arises, therefore, as to how victims' rights 
should be protected. There is an alternative to this 
constitutional amendment--an alternative that would provided 
crime victims with real, enforceable rights. The alternative is 
the statutory measure, S. 1081, ``[t]he Crime Victims 
Assistance Act,'' introduced by Senators Leahy and Kennedy and 
of which we are cosponsors.
    Congress has the duty to approach any effort to amend the 
U.S. Constitution with great trepidation. Should we not, 
therefore, at least attempt the less radical act of passing a 
comprehensive piece of Federal legislation before we start 
amending the Constitution?
    We must also note that we are deeply troubled by the trend 
that has developed in the last couple of Congresses of using 
proposed constitutional amendments as the first and only 
solution to society's problems; or perhaps more accurately 
stated, the use of proposed constitutional amendments as 
political tools which make for great rhetoric and campaign 
speeches, but which do little or nothing to actually help the 
American public.
    Over the past two Congresses we have seen a proliferation 
of constitutional amendments introduced and voted on. In fact, 
the 104th Congress' seven votes cast on six proposed amendments 
holds the record for this measure of congressional activity 
since 1889. Moreover, there were 149 constitutional amendments 
introduced in the 104th and well over a 100 so far in the 
    In conclusion, we want to emphasize this point: We, along 
with all my colleagues on the Committee, support victims' 
rights and understand that these rights must be provided for 
and protected. We also, however, have great respect for the 
U.S. Constitution and the legislative process. We, thus, urge 
our colleagues to consider other alternatives before amending 
the Constitution. The gravity of such an act cannot be 
    For these reasons we cannot support this constitutional 

                                   -Russell D. Feingold.
                                   Richard J. Durbin.

                      XVI. CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds no changes in 
existing law caused by passage of Senate Joint Resolution 44.