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                                                       Calendar No. 271
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-191

======================================================================



 
                    CRIME VICTIMS' RIGHTS AMENDMENT

                                _______
                                

                November 7, 2003.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                       [To accompany S.J. Res. 1]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 1) 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, without amendment, and recommends that the joint 
resolution do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background and Legislative History...............................2
III. The need for constitutional protection...........................6
 IV. The need for specific rights in the process.....................16
  V. Section-by-section analysis.....................................30
 VI. Vote of the Committee...........................................44
VII. Cost estimate...................................................47
VIII.Regulatory impact statement.....................................48

 IX. Additional views of Senator Hatch...............................49
  X. Additional views of Senators Leahy and Kennedy..................52
 XI. Minority views of Senators Leahy, Kennedy, Kohl, Feingold, Schumer 
     and Durbin......................................................56
XII. Changes in existing law........................................111

                               I. Purpose

    The Crime Victims' Rights Constitutional Amendment is 
intended to restore, preserve, and protect, as a matter of 
right for the victims of violent crimes, the practice of victim 
participation in the administration of criminal justice that 
was the birthright of every American at the founding of our 
Nation.
    At the birth of this Republic, victims could participate in 
the criminal justice process by initiating their own private 
prosecutions. 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 reduced 
from that of the moving party in most criminal prosecutions, 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.'' See, e.g., 
Statement of U.S. Senator Dianne Feinstein, Congressional 
Record, May 2, 2000.
    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 benefitted 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 
lifetimes.
    This, then, is the purpose of the Crime Victims' Rights 
Amendment: That we make it part of our highest law to 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 continue 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 
government.

                 II. Background and Legislative History

    For more than 20 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 
        augmented.--President's Task Force on Victims of Crime, 
        Final Report 114 (1982).

    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, Utah L. Rev. 1373, 1381-83 (1994) 
(recounting the history of crime victims' rights). 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 33 states, in widely differing 
versions, now have state victims' rights amendments.\1\ In 
addition, all 50 states have passed rights and protections for 
crime victims--although these vary widely from state to state.
---------------------------------------------------------------------------
    \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; Conn. Const. art. I, Sec. 8(b); 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); Kan. Const. art. 15, 
Sec. 15; La. Const. art. 1, Sec. 25; Md. Decl. of Rights art. 47; Mich. 
Const. art. I, Sec. 24; Miss. Const. art. 3, Sec. 26A; Mo. Const. art. 
I, Sec. 32; Neb. Const. art. I, Sec. 28; Nev. Const. art. I, Sec. 8; 
N.J. Const. art. I, Sec. 22; New Mex. Const. art. 2, Sec. 24; N.C. 
Const. art. I, Sec. 37; Ohio Const. art. I, Sec. 10a; Okla. Const. art. 
II, Sec. 34; OR. Const.; R.I. Const. art. I, Sec. 23; S.C. Const. art. 
I, S 24; Tenn. Const. art. 1, Sec. 35; Tex. Const. art. 1, Sec. 30; 
Utah Const. art. I, Sec. 28; Va. Const. art. I, Sec. 8-A; Wash. Const. 
art. 2, Sec. 33; Wis. 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 Project (NVCAP)--decided in 1995 to shift its focus 
towards passage of a Federal amendment. In 1997, the National 
Governors Association passed a resolution 49 to 1 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.
    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 MurderedChildren; and Robert E. Preston, co-chairman 
of the National Constitutional Amendment Network. Two legal experts 
testified in support of the amendment: Professor Paul Cassell of the 
University of Utah College of Law and Steve 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 official at the U.S. Department of Justice.
    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 Arizona attorney 
Barbara LaWall; and Professor Paul Cassell of the University of 
Utah College of Law. The following people testified in 
opposition to the amendment: Lynne Henderson of Bloomington, 
Indiana; Donna F. Edwards, the executive director of the 
National Network to End Domestic Violence; and Virginia Beach 
Commonwealth Attorney Robert J. Humphreys.
    Over the course of two years, many changes were made to the 
original draft, many responding to concerns expressed in 
hearings and by the Department of Justice. 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. U.S. Associate Attorney General 
Raymond C. Fisher testified in support of an amendment. 
Additionally, the following witnesses testified in support of 
S.J. Res. 44: Professor 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: Professor Robert Mosteller of Duke Law School 
and Kathleen Kreneck, the executive director of the Wisconsin 
Coalition Against Domestic Violence.
    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 the authors, 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.
    In the 106th Congress, Senators Kyl and Feinstein 
introduced S.J. Res. 3 on January 19, 1999, the opening day of 
the Congress. Thirty-three Senators cosponsored the resolution. 
On March 24, 1999, the Senate Committee on the Judiciary held a 
hearing on S.J. Res. 3. Professor Paul Cassell and Steve Twist, 
a member of the National Victims' Constitutional Amendment 
Network and the former Chief Assistant Attorney General of 
Arizona, testified in support of S.J. Res. 3. Beth Wilkinson, a 
partner at Latham & Watkins and a former federal prosecutor and 
Department of Justice official, testified in opposition.
    On May 26, 1999, the Subcommittee on the Constitution, 
Federalism, and Property Rights approved S.J. Res. 3, with an 
amendment, to the full Committee by a vote of 4 to 3. On 
September 30, 1999, the Senate Committee on the Judiciary 
approved S.J. Res. 3 with a sponsors' substitute amendment by a 
vote of 12 to 5. The following Senators voted in favor of the 
amendment: Hatch, Thurmond, Grassley, Kyl, DeWine, Ashcroft, 
Abraham, Sessions, Smith, Biden, Feinstein, and Torricelli. The 
following Senators voted against the amendment: Leahy, Kennedy, 
Kohl, Feingold, and Schumer. Senator Specter did not vote.
    In the 108th Congress, Senators Kyl and Feinstein 
introduced S.J. Res. 1 on January 7th, 2003, the opening day of 
Congress. On April 8, 2003, the Senate Judiciary Committee held 
a hearing on S.J. Res. 3. U.S. Assistant Attorney General Viet 
Dinh, the head of the Office of Legal Policy, testified in 
support of S.J. Res. 3. Mr. Dinh testified that ``[b]oth the 
President and the Attorney General strongly support 
guaranteeing rights to victims of violent crime, and we agree 
with the sponsors that these rights can only be fully protected 
by amending the Constitution of the United States. S.J. Res. 1 
is the right way to do it because it strikes a proper balance 
between the rights of victims and the rights of criminal 
defendants.'' In addition, the following people testified in 
favor of the resolution: Steve Twist; Collene Campbell of San 
Juan Capistrano, California; Earlene Eason of Gary, Indiana; 
and Duane Lynn of Peoria, Arizona. The resolution was opposed 
by James Orenstein of New York, New York, and Patricia Perry of 
Seaford, New York.
    On June 12, 2003, the Subcommittee on the Constitution, 
Civil Rights, and Property Rights approved S.J. Res. 3, without 
amendment, for full Committee consideration by a vote of 5 to 
4. On September 4, 2003, after debate at markups on July 24, 
July 29, July 31, and September 4, the Senate Committee on the 
Judiciary approved S.J. Res. 3 by a vote of 10 to 8 and ordered 
it to be reported favorably, without amendment. The following 
senators voted in favor of the Amendment: Hatch, Grassley, Kyl, 
DeWine, Sessions, Graham, Craig, Chambliss, Cornyn, and 
Feinstein. The following Senators voted against the amendment: 
Leahy, Kennedy, Biden, Kohl, Feingold, Schumer, Durbin, and 
Edwards. Senator Specter did not vote.

              III. The Need for Constitutional Protection

    After extensive testimony in hearings held over seven 
years, the Committee concludes that a Federal constitutional 
amendment is needed to 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 Steve Twist, at 88. In some cases 
victims are forced to view the process from literally outside 
the courtroom. Too often victims 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).
    S.J. Res. 1, addresses many of the concerns raised by 
Senators during the floor debate on the previous version, S.J. 
Res. 3. As noted constitutional scholar Professor Tribe has 
observed:

          The current version of the Amendment, S.J. Res. 1, 
        incorporates language worthy of Constitutional 
        Amendment. I think your final version of January 7, 
        2003, resolvesthat problem in a thoughtful and 
sensitive way, improving in a number of respects on the earlier drafts 
that I have seen. Among other things, the greater brevity and clarity 
of this version makes it more fitting for inclusion in our basic law. 
That you have achieved such conciseness while fully protecting 
defendants rights and accommodating the legitimate concerns that have 
been voiced about prosecutorial power and presidential authority is no 
mean feat.--Laurence Tribe, Letter To Senators Feinstein and Kyl in 
Support of S.J. Res. 1., April 8, 2003.

    President George W. Bush announced his support for the 
bipartisan Victims' Rights Amendment S.J. Res. 1, on April 16, 
2002--at a ceremony honoring crime victim advocates during 
National Crime Victims Rights Week:

          This amendment makes some basic pledges to Americans. 
        Victims of violent crime deserve the right to be 
        notified of public proceedings involving the crime. 
        They deserve to be heard at public proceedings 
        regarding the criminal's sentence or potential release. 
        They deserve to have their safety considered. They 
        deserve consideration of their claims of restitution. 
        We must guarantee these rights for all the victims of 
        violent crime in America.
          The Feinstein-Kyl Amendment was written with care, 
        and strikes a proper balance. Our legal system properly 
        protects the rights of the accused in the Constitution. 
        But it does not provide similar protection for the 
        rights of victims, and that must change.
          The protection of victims' rights is one of those 
        rare instances when amending the Constitution is the 
        right thing to do. And the Feinstein-Kyl Crime Victims' 
        Rights Amendment is the right way to do it.

    Assistant Attorney General Viet Dinh testified on behalf of 
the Justice Department in support of S.J. Res. 1:

          Both the President [Bush] and the Attorney General 
        [Ashcroft] strongly support guaranteeing rights to 
        victims of violent crime, and we agree with the 
        sponsors that these rights can only be fully protected 
        by amending the Constitution of the United States. S.J. 
        Res. 1 is the right way to do it because it strikes the 
        proper balance between the rights of victims and the 
        rights of criminal defendants.
          As the principal Federal law enforcement agency, the 
        Department of Justice is keenly aware of the effects 
        that the Crime Victims' Rights Amendment would have on 
        the landscape of the criminal justice system. There is 
        no doubt that, were the amendment to pass, it would 
        prompt significant adjustments in how Federal, State 
        and local prosecutors discharge their responsibilities. 
        Accordingly, the Department has reviewed the proposed 
        amendment in light of our prosecutorial function within 
        the criminal justice system, our commitment to 
        fundamental fairness and justice for defendants, and 
        our support of the rights of crime victims. We believe 
        the language of the proposed amendment properly 
        advances all of these interests.--Written Testimony of 
        Viet Dinh before the Senate Judiciary Committee, April 
        8, 2003.

    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 former 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 
        prosecution.

    Senate Judiciary Committee Hearing, April 16, 1997, 
statement of Attorney General Reno, at 41. In an April 8, 2003 
letter to Senators Kyl and Feinstein, 42 state Attorneys 
General expressed their strong support to pass S.J. Res. 1, the 
proposed amendment to protect the rights of crime victims:

          As Attorneys General from diverse regions and 
        populations in our nation, we continue to see a common 
        denominator in the treatment of crime victims 
        throughout the country. Despite the best intentions of 
        our laws, too often crime victims are still denied 
        basic rights to fair treatment and due process that 
        should be the birthright of every citizen who seeks 
        justice through our courts. We are convinced that 
        statutory protections are not enough; only a federal 
        constitutional amendment will be sufficient to change 
        the culture of our legal system.
          The rights you propose in S.J. Res. 1 are moderate, 
        fair, and yet profound. They will extend to crime 
        victims a meaningful opportunity to participate in 
        critical stages of their cases. At the same time, they 
        will not infringe on the fundamental rights of those 
        accused or convicted of offenses. In addition, 
        extending these fundamental rights to victims will not 
        interfere with the proper functioning of law 
        enforcement.

    The Committee heard compelling testimony from several 
witnesses whose own experiences with the justice system are 
evidence of the need for victims' rights to be protected by our 
fundamental law. First among them was Collene Thompson 
Campbell, from San Juan Capistrano, California, whose son Scott 
was murdered in 1982 and whose brother, racing legend 
MickeyThompson and his wife Trudy, were murdered in 1989. Collene and 
her husband Gary were not permitted to be in the courtroom during three 
trials for the men who murdered their son Scott. They literally were 
forced to sit in the hallway outside the courtroom while the murderers 
family was ushered in to reserved seats in the front row of the 
gallery.
    Now, more than twenty years after Scott's murder and the 
beginning of their nightmare in the justice system, Collene and 
Gary Campbell await trial for the man accused of murdering 
Collene's brother and sister-in-law, and they have been told 
they will not be allowed to be in the courtroom during the 
trial. Their right to fair treatment remains illusory and 
unfulfilled. Collene asked the Committee in her testimony, ``* 
* * [H]ow in this great nation have we allowed the violent 
criminals to have more rights than honest, law-abiding good 
American citizen, who, through no fault of their own, have 
become victims of violent crime?'' It is a question that will 
continue to haunt our justice system until we establish 
constitutional rights for crime victims. Collene Campbell 
concluded, ``We, who have lived the tortures of being crime 
victims, but who have also had the privilege to live our lives 
as honorable Americans, are simply asking to have the same 
level of constitutional rights as the criminal, no more--no 
less; that seems more than fair doesn't it?'' The Committee 
agrees that it is fair to give crime victims constitutional 
rights.
    Earlene Eason, of Gary, Indiana, told the Committee about 
the murder of her 16 year old son Christopher in Minneapolis, 
Minnesota while he visited friends during summer recess. She 
testified how she was not notified of proceedings and how she 
was not notified of the plea bargain that was offered to her 
son's murderer. She was not given an opportunity to attend the 
proceeding where the plea bargain was offered and accepted. As 
she told the Committee, ``I was unable to appear in court to 
try to object to the plea bargain or speak at sentencing, even 
though it was very important to do so.'' She was told she could 
not get restitution. In clear and unequivocal terms Ms. Eason 
concluded, ``People receive more compassion for the loss of a 
pet than we received from the justice system for the loss of 
our son.''
    The Committee heard powerful testimony from Mr. Duane Lynn 
of Phoenix, Arizona. Duane and his wife Nila were three months 
short of their 50th wedding anniversary when Richard Glassel, 
angered at their homeowner's association, walked into the 
association meeting and started shooting. Mrs. Lynn was one of 
two murdered; she died in Mr. Lynn's arms speaking her last 
words to him. Mr. Lynn told the Committee that ``[i]t took 
almost 3 years'' before he was able to offer a victim impact 
statement to the court regarding his wife. Mr. Lynn also noted 
that he was ``told that I had to stop short of talking about 
how I felt this murderer should be sentenced. I could give no 
comment on that. * * * The jury never heard that I wanted to 
recommend a life sentence. They gave him the death penalty.''
    The experiences of the Campbells, Earlene Eason, and Duane 
Lynn demonstrate just how far off course our justice system has 
gone in its treatment of crime victims. Only an amendment to 
the U.S. Constitution can restore fairness and balance to this 
system--and such an amendment is fully within the mainstream 
tradition of the Constitution. As witness Steve Twist told the 
Committee, ``Our cause today is a cause in the tradition of the 
great struggles for civil rights. When a woman who was raped is 
not given notice of the proceedings in her case, when the 
parents of a murdered child are excluded from court proceedings 
that others may attend, when the voice of a battered woman or 
child is silenced on matters of great importance to them and 
their safety--on matters of early releases and plea bargains 
and sentencing--it is the government and its courts that are 
the engines of these injustices.'' Only an amendment to the 
U.S. Constitution can remedy great injustice once and for all.

        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. For 
example, the 15th Amendment was added to ensure African-
Americans could participate in the electoral process, the 19th 
Amendment to do the same for women, and the 26th amendment 
expanded such rights to young citizens. In fact, one 
interesting aspect of the debate on S.J. Res. 1 is that many of 
the arguments opponents have made to a Victims' Rights 
Amendment are similar to arguments made against proposed 
successful amendments conferring rights on racial minorities 
and women. See, e.g., Statement of Senator Dianne Feinstein, 
Senate Judiciary Committee, Sept. 4, 2003.
    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. 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 a 
constitutional amendment, former 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 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 processes 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

    In testimony on S.J. Res. 3, an earlier version of the 
Amendment, 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' 
        rights.--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 is 
the only way to 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. 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 outcome.
     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, two weeks later she was 
walking down the street in her neighborhood and saw the young 
man hanging out on the corner. He had been released on personal 
recognizance with no notice to her and 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 
courtultimately ordered restitution in the entirely arbitrary 
and utterly inadequate amount of $387.
     Ross and Betty Parks, who's daughter Betsy was 
murdered, waited seven years for a murder trial. The delay was 
caused, in part, by repeated motions that resulted in delay--
thirty-one motions at one point.
    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. In 
those rare cases when they do so, they face a daunting array of 
obstacles, including barriers to their even obtaining 
``standing'' to be heard to raise their claims. 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 sentencing.
     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, at 96. 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 Professor 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.
    The Committee also rejects the view, offered by some 
opponents of the amendment, that the nation should simply leave 
victims to fare as best they can under the current patchwork 
quilt of victims provisions and see how things sort themselves 
out. For example, one constitutional commentator opposing the 
amendment took the position that ``if you have struggled with a 
problemfor 10, 11, 15 years at the State level and the statutes 
just don't seem to be working, fine, I understand the need [for a 
federal constitutional amendment].'' Senate Judiciary Committee 
Hearing, April 23, 1996, statement of Bruce Fein, at 108. However, as 
victims' advocates aptly pointed out in response, problems with the 
treatment of victims in the criminal justice system were widely 
recognized by at least 1982. At that time, a Presidential Task Force 
concluded after comprehensive study that ``the innocent victims of 
crime have been overlooked, their pleas for justice have gone unheeded, 
and their wounds-personal, emotional, and financial-have gone 
unattended.'' President's Task Force on Victims of Crime, Final Report 
(1982). In the twenty years since that report, the country has 
attempted to find ways to protect victims through less than 
constitutional means. Yet while hundreds of statutes and more than two 
dozen statement constitutional amendments have been passed in the 
intervening years, full justice for victims remains a distant goal. 
During those years, literally millions of victims have participated--or 
attempted to participate--in a criminal justice system without full 
protection of their interests. Each year of delay is a year in which 
countless victims are denied their rights. Rather than take a wait-and-
hope-things-improve approach, the Committee is of the view that prompt, 
decisive, and comprehensive action is needed to protect victims' basic 
rights. In that respect, the Committee simply adopts the long expressed 
view that ``Justice, though due to the accused, is due to the accuser 
also.'' Payne v. Tennessee, 501 U.S. 808, 827 (1991) (quoting Snyder v. 
Massachusetts, 291 U.S. 987, 1222 (1934) (Cardozo, J.)). The time for 
justice is now, not later.

 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, a number of Governors have 
endorsed the constitutional amendment and voters in the states 
have endorsed victims' rights whenever they have had the 
chance.
    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 similar permanence to victims' rights. Constitutional 
protection for victims' rights is in no sense an ``unfunded 
mandate'' or ``arrogation of power'' by the federal government. 
Constitutional protection is instead the placing of a 
birthright into the Constitution--a line across which no 
government, be it federal, state, or local, can cross. Adding 
protections into the U.S. Constitution, our fundamental law, 
will thus serve to ensure that the protection of victims rights 
will be a part of our political architecture and therefore 
fully protected. This same point was recognized by James 
Madison in considering whether to add a Bill of Rights to the 
Constitution. 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 
(1953). Federalism was intended to be a protection for the 
liberties of Americans against the encroachment of excessive 
government power. It cannot, therefore, be a violation of 
federalist principles to expand liberty by extending 
participatory rights to crime victims.
    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.

            IV. The Need for Specific Rights in the Process

    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 nine rights is 
discussed in turn.

1. Right to notice of public 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, Earlene Eason, in testifying in support of 
S.J. Res. 1 stated:

          We also experienced significant financial hardship 
        because of other failures to give us adequate notice. 
        All of this wasted expense, which we could not afford, 
        was due to constant trips to Minneapolis for court 
        dates, which were frequently changed without adequate 
        notice to me and my fiance. My son's father, who 
        resides in California, purchased several airline 
        tickets, but he was never advised by the District 
        Attorney's office of changes in court dates. He became 
        so frustrated that he gave up on coming to any hearing 
        due to the expense of cancelled tickets and the fear of 
        losing his job from the disruption in his work 
        schedule. Senate Judiciary Committee Hearing, April 8 
        2003, Prepared Statement of Earlene Eason.

    For example, Rita Goldsmith, 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.

    The Committee concludes that victims deserve notice of 
important criminal justice proceedings relating to the crimes 
committed against them. In those rare circumstances when notice 
may compromise the safety of another person or may compromise a 
law enforcement investigation the language of the amendment 
would allow the right to be restricted as long as necessary to 
achieve the stated ends. Moreover, the right only attaches to 
``public'' proceedings and there are mechanisms in the law that 
permit the closure of proceedings.
    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 
found:

          Twenty 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 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 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, at 105.
    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 
explained:

          Around the country, there are a large number of 
        documented cases of women and children being killed by 
        defendants and convicted offenders recently released 
        from jail or prison. In many of these cases, the 
        victims were unable to take precautions to save their 
        lives because they had not been notified of the 
        release.--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 three weeks earlier on charges of kidnaping 
Byron and raping her at gunpoint. A relative's payment ofbond 
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 released.
    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.

3. Right not to be excluded

    The Committee concludes that victims deserve the right not 
to be excluded from 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 (1982).

    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 not to be excluded from 
court proceedings, victims suffer a further loss of dignity and 
control of their own lives. 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 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).

    Some defense attorneys suggests that allowing victims to 
attend trial might somehow lead to victims ``tailoring'' their 
testimony to match that of other witnesses. Such claims were 
not documented with any real world examples, and they seem 
implausible. As one witness reminded the Committee:

          And what of the fear of perjury? Consider the civil 
        justice system. If a lawsuit arises from a drunk 
        driving crash, both the plaintiff (the victim of the 
        drunk driver) and the defendant (the drunk driver) are 
        witnesses. Yet both have an absolute right, as parties 
        in the case, to remain in the courtroom throughout the 
        trial. Do we value truth any less in civil cases? Of 
        course not. But we recognize important societal and 
        individual interests in the need to participate in the 
        process of justice.
          This need is also present in criminal cases involving 
        victims. How can we justify saying to the parents of a 
        murdered child that they may not enter the courtroom 
        because the defense attorney has listed them as 
        witnesses. This was a routine practice in my state, 
        before our constitutional amendment. And today, it 
        still occurs throughout the country. How can we say to 
        the woman raped or beaten that she has no interest 
        sufficient to allow her the same rights to presence as 
        the defendant? Closing the doors of our courthouses to 
        America's crime victims is one of the shames of justice 
        today and it must be stopped.--Senate Judiciary 
        Committee Hearing, April 28, 1998, statement of Steve 
        Twist, at 90-91.

    For these reasons, 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''). The Committee concludes 
that an alternative approach--giving victims a right to attend a trial 
unless their testimony would be ``materially affected'' by their 
attendance--would be inadequate. 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 unequivocally recognized.
    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 
general federal constitutional right of criminal defendants to 
exclude victims from trials. See Senate Judiciary Committee 
Hearing, April 23, 1996, statement of Paul Cassell, at 48-57. 
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 Marsha 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 
protection.

4. Right to be heard

    The Committee concludes that victims deserve the right to 
be heard at specific points in the criminal justice process: 
public release, plea, sentencing, reprieve and pardon hearings. 
Giving victims a voice not only improves the quality of the 
process but can also be expected to often provide important 
benefits to victims.
    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 464 (1999).

    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 
concluded:

          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 (1982).

    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 me.'' Senate Judiciary 
Committee Hearing, April 28, 1998, statement of Paul Cassell, 
at 36 (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.
    The last step in the criminal process is the decision by 
the President, a governor, or a clemency board on whether to 
grant executive clemency. Here too victims, deserve notice of 
any such decision made at a public proceeding or that would 
lead to a release of the individual in question, and an 
opportunity to be heard before reprieve or pardon action is 
taken.
    Finally, victims deserve the right to be heard when the 
President, governors, or clemency boards consider whether to 
pardon or commute the sentence of a prisoner. Here again, 
victims can provide vital information that is useful in making 
such decisions. As the President's Task Force on Victims of 
Crime concluded, ``No one knows better than the victim how 
dangerous and ruthless the candidate was before'' the clemency 
application. President's Task Force on Victims of Crime, Final 
Report 84 (1982). Moreover, as a simple matter of fairness, 
victims deserve the opportunity to be heard, if they so desire. 
The prisoner seeking clemency, of course, has an opportunity to 
make his case. Equity demands that victims, too, be heard on 
this issue. A subcommittee of this Committee heard moving 
testimony from Anita Lawrence, whose son was murdered. The 
murderer's death sentence was later commuted without any notice 
to her. Ms. Lawrence eloquently explained why she should have 
had an opportunity to be heard: ``thedecision of the Governor 
may not be changed; at least, we would be able to say that we tried to 
have justice done, rather than having to say we were left completely 
out of the process.'' Senate Judiciary Committee Hearing, Subcommittee 
on Constitution, Federalism, and Property Rights, St. Louis Field 
Hearing, May 1, 1999. It may be noted that the commuting Governor in 
this instance later apologized to the family, agreeing that they should 
have been consulted.
    The Committee agrees with Ms. Lawrence that victims like 
her, Patricia Pollard, and others who have suffered greatly at 
the hands of criminals must not be left completely out of the 
process. At the appropriate time, victims deserve the right to 
heard.
    Failure to provide notice to victims of a commutation of a 
sentence can have devastating psychological effects. A 
subcommittee of this Committee heard stark testimony about what 
it is like for a victim to be surprised to learn about a 
previously-granted commutation. Anita Lawrence's son Willie 
Lawrence was murdered in 1988, along with two of his 
grandparents. Ms. Lawrence learned from watching television in 
January 1999 that the death sentence of her son's murderer had 
been commuted:

          We were visiting friends, and we sat down to watch 
        the evening news with our friends. * * * And then when 
        the news came on, the first thing on the news was Mease 
        [the convicted triple murderer] walking through in his 
        orange suit with a smile on his face. And then, they 
        showed a picture of my mother-in-law and father-in-law 
        and my son on their four-wheelers at the scene. We had 
        never seen this picture. I had never seen Willie in 
        that condition, and it was a nightmare.
          I had nightmares for a week afterwards. I would 
        actually get up and have to go to the bathroom and 
        throw up. I had to see a doctor, and take tranquilizers 
        just to get me through it. I'd walk the floor. My 
        emotions were just--I don't know how to explain it.--
        Senate Judiciary Committee Hearing, Subcommittee on 
        Constitution, Federalism, and Property Rights, St. 
        Louis Field Hearing, May 1, 1999.

    Ms. Lawrence concluded her tearful appearance before the 
subcommittee with a plea that something be done so that the 
``the next family'' would not have to suffer through the same 
horrors as hers. The Committee agrees that no family should 
have to suffer the anguish of learning for the first time about 
a pardon or commutation on a television news program. Victims 
deserve advance notice before such a decision is made.
    It has long been the practice in many states that the 
sentencing judge and prosecutor are given notice and asked to 
comment before executive clemency is granted. There is a trend 
toward greater public involvement in the process, with the 
federal system and a number of states now providing notice to 
victims. The federal victims bill of rights, for example, 
guarantees victims the ``right to information about the * * * 
release of the offender.'' 42 U.S.C. Sec. 10606(b)(7). In 
Alaska, the governor may refer applications for executive 
clemency to the board of parole. If the case involves a crime 
of violence, ``the board shall send notice of an application 
for executive clemency submitted by the state prisoner who was 
convicted of that crime. The victim may comment in writing to 
the board on the application for executive clemency.'' Alaska 
Stat. Sec. 33.20.080. In Ohio, three weeks before any pardon or 
commutation can be granted, the adult parole authority sends 
notice to the prosecuting attorney, presiding judge in the 
county of conviction, and ``the victim or the victim's 
representative.'' Ohio Rev. Code Ann. Sec. 2967.12.
    While the trend toward notice is encouraging, problems 
remain both in the breadth of these provisions and, 
particularly, in their implementation. Recently, the Committee 
heard testimony that the federal provision had not been 
effectively implemented. The surviving family members of 
victims of the FALN bombing were not notified that the 
President had granted clemency to 16 FALN prisoners, apparently 
learning of about the clemency for the first time through the 
media. Their treatment, unfortunately, appears to be typical. 
Roger Adams, the U.S. Pardon Attorney for the Department of 
Justice, reported that consulting with victims during the 
federal process ``will cause a big change in the way we 
operate.'' Email from Roger Adams to Jamie Orenstein, Aug. 23, 
1999 (exhibit in the FALN hearings). If victims do not receive 
their statutorily-mandated notice even in high profile federal 
cases, it is hard to imagine that their treatment is other 
situations is any better.
    Victims deserve this notice so that they gain the 
opportunity to provide information about the proposed clemency. 
Victims, of course, do not demand a veto over any decision--nor 
would they be accorded one in the Amendment. They simply seek a 
voice in that process, to be heard before an executive clemency 
decision is made. As has been explained, victims can provide 
unique information about the seriousness of the crime.
    A constitutional amendment would unequivocally ensure that 
victims are notified and given the opportunity to be heard at 
any public proceeding held before a pardon or reprieve decision 
is made, improving disparate and haphazard treatment that 
victims currently suffer in the clemency process. Only a 
constitutional amendment can insure this treatment. The 
Committee heard suggestions that any statutory effort to 
provide such protections at the federal level would interfere 
with the President's pardon power, conferred by U.S. Const., 
Art. II, Sec. 2. The Committee is skeptical of those 
suggestions. While the President has the constitutional power 
to pardon, it would seem that Congress has the power to specify 
reasonable procedures before the President makes the decision. 
In any event, the Committee agrees that a federal 
constitutional amendment is the best way to definitively answer 
any such constitutional concerns.

5. 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 threatenedby 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.
    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.

6. Right to consideration of the victim's interest in avoiding 
        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, a victim's right to consideration of his or her 
interest to avoid unreasonable delay will not overcome a 
criminal defendant's due process right to a reasonable 
opportunity to prepare a defense. But the interests of a crime 
victim in a trial free from unreasonable delay must be 
protected.
    The Committee heard ample testimony about the problem of 
delay that victims face. In one case, for example, a case of 
child abuse involving a five year old child spanned more than 
fifteen months from the arraignment to the trial. Many of the 
delays appeared to be for no good reason. For example, during 
the preliminary hearing the defense attorney asked for a recess 
at 4:00 p.m. one day because he anticipated two more hours of 
questioning of the child's mother. Continuance of the cross 
examination was set for ten days later. The victims family then 
canceled a long-planned trip out of state. The day before the 
resumption of the cross examination was to take place, the 
defense attorney reported that he now had a scheduling 
conflict. Resumption of the cross-examination was not set for 
seven weeks later. Seven weeks later, the cross-examination was 
resumed. Contrary to previous claims, the defense attorney had 
less than 10 minutes of perfunctory questions. Senate Judiciary 
Committee Hearing, April 16, 1997, statement of Paul Cassell, 
at 115-16. Victims should not be forced to endure extensive 
delays for no apparent good reason.
    As Collene Campbell testified concerning her families 
experience after the murder of her son and brother:

          I'm certain this is not what the Founders of this 
        great nation and the authors of our Constitution 
        intended and it needs to be corrected immediately. At a 
        huge cost to taxpayers, and my families personal life, 
        we have continued to be in the court system for 21 
        straight years, with no right for a speedy trial and 
        there is no end in sight.

    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. The Committee concludes that this problem 
can be solved only by unequivocally creating a federal 
constitutional right of victims to have a court consider their 
speedy trial interests.

7. Consideration of just and timely claims to 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 
theresult 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 at 12, 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 just and timely consideration 
of restitution throughout the country, Federal constitutional 
recognition of the significance 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.
    In a letter to the committee Sue Russell of Vermont wrote 
of the failure of her state's justice system to award any 
restitution for her in the aftermath of the devastating assault 
committed against her, despite the fact that her attacker now 
earns a significant wage from the state prison system. This 
injustice must stop, and stop uniformly across the nation for 
every American.

8. The right to standing

    If victims rights are to be meaningful and enforceable 
victims need one simple legal tool: Standing. Section 3 of the 
amendment makes it clear that victims and their representatives 
have standing to enforce their rights in court.

                     V. Section-by-Section Analysis

    The Committee intends that the amendment be construed to 
effectuate its remedial purposes: to guarantee the protection 
of and appropriate participation by crime victims in the 
criminal justice process. Courts have long experience in 
applying federal constitutional rights for defendants in the 
criminal justice system, and the Committee believes that this 
experience can be used to effectively apply victims' rights as 
well.

Section 1. The rights of victims of violent crime, being capable of 
        protection without denying the constitutional rights of those 
        accused of victimizing them * * *

    This preamble establishes two important principles about 
the rights established in the amendment: First, they are not 
intended to deny the constitutional rights of the accused, and 
second, they do not, in fact, deny those rights. The task of 
balancing rights, in the case of alleged conflict, will fall, 
as it always does, to the courts, guided by the constitutional 
admonition not to deny constitutional rights to either the 
victim or the accused. (See Killian and Costello, The 
Constitution of the United States of America: Analysis and 
Interpretation, Senate Document 103-6, U.S. Gov't Printing 
Office, p. 1105 (1992). [``Conflict between constitutionally 
protected rights is not uncommon.'' The text continues 
discussing the Supreme's Court balancing of ``a criminal 
defendant's Fifth and Sixth Amendment rights to a fair trial 
and the First Amendment's rights protection of the rights to 
obtain and publish information about defendants and trials.''] 
Id.).
    Nothing removes from the States their plenary authority to 
enact definitional laws for purposes of their own criminal 
justice systems. Such legislative definition is appropriate 
because criminal conduct depends on State and Federal law for 
its definition in the first instance. Since the legislatures 
define what is criminal conduct, the courts will naturally turn 
to them to determine who is a ``victim.''
    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 
courts, in interpreting the amendment, will use a similar 
definition focusing on the criminal charges that have been 
filed in court.
    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 ``violent 
crime.'' The phrase ``violent crime'' should be considered in 
the context of an amendment extending rights to crime victims, 
not in other possibly narrower contexts.'' The most analogous 
federal definition is Federal Rule of Criminal Procedure 32(f), 
which extends a right of allocution to victims of a ``crime of 
violence'' and defines the phrase as one that ``involved the 
use or attempted or threatened use of physical force against 
the person or property of another. * * *'' (emphasis added). 
The Committee anticipates that the phrase ``violent crime'' 
will be defined in these terms of ``involving'' violence, not a 
narrower ``elements of the offense'' approach employed in other 
settings. See, e.g., 18 U.S.C. Sec. 16. Only this broad 
construction will serve to protect fully the interests of all 
those affected by criminal violence.
    ``Violent crimes'' will include all forms of homicide 
(including voluntary and involuntary manslaughter and vehicular 
homicide), sexual assault, kidnaping, robbery, assault, mayhem, 
battery, extortion accompanied by threats of violence, 
carjacking, vehicular offenses (including driving while 
intoxicated) which result in personal injury, domestic 
violence, and other similar crimes. A ``crime of violence'' can 
arise without regard to technical classification of the offense 
as a felony or a misdemeanor. It should also be obvious that a 
``violent crime'' 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 ``violent crime'' regardless of whether 
the victim is actually injured. Along the same lines, 
conspiracies, attempts, solicitations and other comparable 
crimes to commit a crime of violence should be considered 
``violent crimes'' for purposes of the amendment, if 
identifiable victims exist. Similarly, some crimes are so 
inherently threatening of physical violence that they could be 
``violent crime'' 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 ``violent crimes'' 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 ``violent crimes,'' 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 
violent crime, 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 
``violent crimes.''
    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, 
expanded.
    Because of the formulation used in the amendment--``a 
victim of violent crime''--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 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 would produce an identifiable victim 
protected by the amendment.

are hereby established

    The amendment provides that the rights of victims are 
``hereby established.'' The phrase, which is followed by 
certain enumerated rights, is not intended to ``deny or 
disparage'' rights that may be established by other federal or 
state laws. The amendment establishes a floor and not a ceiling 
of rights and States will remain free to enact (or continue, as 
indeed many have already enacted) more expansive rights than 
are ``established'' in this amendment. Rights established in a 
state's constitution would be subject to the independent 
construction of the state's courts. See Michigan v. Long, 463 
U.S. 1032 (1983). The Committee does not intend the use of the 
words ``hereby established'' to elevate the rights of victims 
over any other rights in the Constitution.

and shall not be denied by any State or the United States and may be 
        restricted only as provided in this article.

    In this clause, and in Section 2 of the amendment, an 
important distinction between ``denying'' rights and 
``restricting'' rights is established. As used here, ``denied'' 
means to ``refuse to grant,'' see Webster's New Collegiate 
Dictionary 304 (1977). In other words, it means to prohibit the 
exercise of the right completely. The amendment, by its terms, 
prohibits such a denial. At the same time, the language 
recognizes that no constitutional right is absolute and 
therefore permits ``restrictions'' on the rights, but only, as 
provided in Section 2, in three narrow circumstances. This 
direction settles what might otherwise have been years of 
litigation to adopt the appropriate test for when, and the 
extent to which, restrictions will be allowed.

being capable of protection without denying the constitutional rights 
        of those accused of victimizing them.

    The Committee heard testimony that the proposed 
constitutional rights for victims would clash with, and triumph 
over, the preexisting constitutional rights of accused and 
convicted offenders. Typically these claims were advanced 
without specific examples. No convincing evidence was offered 
to support such a contention. This is unsurprising because, as 
the Chief Justice of the Texas Court of Criminal Appeals 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 Committee accordingly 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. 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.'' ``[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.
    The language also eliminates a previous concern that the 
courts will woodenly interpret the later-adopted Crime Victims' 
Rights Amendment as superseding provisions in previously-
adopted ones. Such a canon of construction can be useful when 
two measures address precisely the same subject. See Laurence 
H. Tribe, Statement on Victims' Rights, April 15, 1997; cf. 
Laurence H. Tribe and Paul G. Cassell, Embed the Rights of 
Victims in the Constitution, L.A. Times, July 6, 1998, at B7. 
But no rigid rule of constitutional interpretation requires 
giving unblinking precedence to later enactments on separate 
subjects.
    Instead, the Committee intends that courts 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' 
rights. Finally, language in Section 3 provides assurance that 
in harmonizing these rights ``[n]othing in this article shall 
be construed to provide grounds for a new trial.''

Sec. 2. A victim of violent crime shall have the right to reasonable 
        and timely notice of any public proceeding involving the crime

    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 is notice that permits a meaningful 
opportunity for victims to exercise their rights. 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. In rare mass victim cases (i.e., 
those involving hundreds of victims), reasonable notice could 
be provided to means tailored to those unusual circumstances, 
such as notification by newspaper or television announcement.
    Victims are given the right to receive notice of ``public 
proceedings.'' Proceedings are official events that take place 
before, for example, trial and appellate courts (including 
magistrates and special masters) and parole boards. They 
include, for example, hearings of all types such as motion 
hearings, trials, and sentencings. They do not include, for 
example, informal meetings between prosecutors and defense 
attorneys. Thus, while victims are entitled to notice of a 
court hearing on whether to accept a negotiated plea, they 
would not be entitled to notice of an office meeting between a 
prosecutor and a defense attorney to discuss such an 
arrangement.
    Victims' rights under this provision are also limited to 
``public'' proceedings. Some proceedings, such as grand jury 
investigations, are not open to the public and accordingly 
would not be open to the victim. Other proceedings, while 
generally open, may be closed in some circumstances. For 
example, while plea proceedings are generally open to the 
public, a court might decide to close a proceeding in which an 
organized crime underling would plead guilty and agree to 
testify against his bosses. See 28 C.F.R. 50.9. 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.

Sec. 2. Right to ``reasonable notice of * * * any release or escape of 
        the accused''

    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 for an afternoon 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.

Sec. 2. * * * not to be excluded from such public proceedings

    Victims are given the right ``not to be excluded'' from 
public proceedings. This builds on the 1982 recommendation from 
the President's Task Force on Victims of Crime that victims 
``no less than the defendant, have a legitimate interest in the 
fair adjudication of the case, and should therefore, as an 
exception to the general rule providing for the exclusion of 
witnesses, be permitted to be present for the entire trial.'' 
President's Task Force on Victims of Crime, Final Report 80 
(1982).
    The right conferred is a negative one--a right ``not to be 
excluded''--to avoid the suggestion that an alternative 
formulation--a right ``to attend''--might carry with it some 
government obligation to provide funding, to schedule the 
timing of a particular proceeding according to the victim's 
wishes, or otherwise assert affirmative efforts to make it 
possible for a victim to attend proceedings. Accord Ala. Code 
Sec. 15-14-54 (right ``not [to] be excluded from court or 
counsel table during the trial or hearing or any portion 
thereof * * * which in any way pertains to such offense''). The 
amendment, for example, would not entitle a prisoner who was 
attacked in prison to a release from prison and plane ticket to 
enable him to attend the trial of his attacker. This example is 
important because there have been occasional suggestions that 
transporting prisoners who are the victims of prison violence 
to courthouses to exercise their rights as victims might create 
security risks. These suggestions are misplaced, because the 
Crime Victims' Rights Amendment does not confer on prisoners 
any such rights to travel outside prison gates. Of course, as 
discussed below, prisoners no less than other victims will have 
a right to be ``heard'' 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, Sec. 2.1.
    In some important respects, a victim's right not to be 
excluded will parallel the right of a defendant to be present 
during criminal proceedings. See Diaz v. United States, 223 
U.S. 442, 454-55 (1912). It is understood that defendants have 
no license to engage in disruptive behavior during proceedings. 
See, e.g., Illinois v. Allen, 397 U.S. 337, 343 (1977); Foster 
v. Wainwright, 686 F.2d 1382, 1387 (11th Cir. 1982). Likewise, 
crime victims will have no right to engage in disruptive 
behavior and, like defendants, will have to follow proper court 
rules, such as those forbidding excessive displays of emotion 
or visibly reacting to testimony of witnesses during a jury 
trial.

Sec. 2. ``reasonably to be heard at public release, plea, sentencing, 
        reprieve, and pardon proceedings

    The amendment confers on crime victims a right to be heard 
by the relevant decision makers at four critical points in the 
criminal justice process before the final decisions are made.
    First, crime victims will have the right to be heard at 
``release'' proceedings. 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, rather 
simply to provide relevant information that the court can 
consider in making its determination about release.
    This phrase also encompasses, for example, hearings to 
determine any 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 release include 
work release and home detention. It also includes parole 
hearings or their functionalequivalent, 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. There would be no right to be heard when a 
prisoner is released after serving the statutory maximum penalty, or 
the full term of his sentence. 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 public 
plea proceedings. 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), People v. Stringham, 
253 Cal. Rptr 484 (Cal. Ct App. 1988), is followed by many 
prosecuting agencies, see, e.g., Senate Judiciary Committee 
Hearing, April 28, 1998, statement of Paul Cassell, at 35-36, 
and has been encouraged as sound prosecutorial practice. See 
U.S. Department of Justice, Office for Victims of Crime, New 
Directions from the Field: Victims' Rights and Services for the 
21st Century 15-16 (1998). This trend has also been encouraged 
by the interest of some courts in whether prosecutors have 
consulted with the victim before arriving at a plea. Once 
again, the victim is given no right of veto over any plea. No 
doubt, some victims may wish to see nothing less than the 
maximum possible penalty (or minimum possible penalty) for a 
defendant. Under the amendment, the court will receive this 
information, along with that provided by prosecutors and 
defendants, and give it the weight it believes is appropriate 
deciding whether to accept a plea. The decision to accept a 
plea is typically vested in the court and, therefore, the 
victims' right extends to these proceedings. See, e.g., Fed. R. 
Crim. Pro. 11(d)(3); see generally Douglas E. Beloof, Victims 
in Criminal Procedure, 462-88 (1999).
    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, among other things. 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 sentence.
    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 and perhaps extend the Supreme Court's 
decision in Payne v. Tennessee, 501 U.S. 808 (1991), 
recognizing the propriety of victim allocution in capital 
proceedings. Victim impact statements concerning the character 
of the victim and the impact of the crime remain 
constitutional. See Douglas E. Beloof, Constitutional 
Implications of Crime Victims as Participants, 88 Cornell Law 
Review 282 (2003). 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 statements offered at sentencing does not confer any 
right to have such statement heard 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. The Committee, however, 
intends no modification of the current law, with deep 
historical roots, allowing a crime victim's attorney to 
participate in the prosecution, to whatever extent presently 
allowed.
    The victim's right is to ``be heard.'' 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 of statements, but should not require the victim to 
submit a statement for approval before it is offered. No such 
requirement is put on the defendant and none should be imposed 
on the victim. The Due Process clause requires that the 
victim's statement not be ``unduly prejudicial,'' see Payne v. 
Tennessee. At the same time, victims should always be given the 
power to determine the form of the statement. Simply because a 
decision making 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 does not intend that the right to be 
heard be limited to ``written'' statements, because the victim 
may wish to communicate in other appropriate ways. 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 right to be heard is sufficiently flexible 
to encompass such communications.
    The right to be heard is also limited to ``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.
    The right to be heard at public release proceedings confers 
on victims the right to be heard at public parole proceedings. 
In some jurisdictions, however, parole decisions are not made 
in publicproceedings, 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.
    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 facilities.

Sec. 2 (cont.). The right reasonably to be heard at reprieve, and 
        pardon proceedings

    The amendment extends the right to be heard in connection 
with pardons and reprieves only to those cases in which the 
decision is reached after a ``proceeding.''
    Finally, Section 4 provides that ``nothing in this article 
shall affect the President's authority to grant reprieves or 
pardons.''

Sec. 2 (cont.). Right to ``adjudicative decisions that duly consider 
        the victim's safety''

    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 home detention, 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 Eighth 
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.

Sec. 2 (cont.). Right to adjudicative decisions that duly consider * * 
        * interest in avoiding unreasonable delay''

    Just as defendants currently have a right to a ``speedy 
trial,'' this provision will give victims a protected right in 
having their interests to a reasonably prompt conclusion of a 
trial considered. The right here requires courts to give 
``consideration'' to the victims' interest along with other 
relevant factors at all hearings involving the trial date, 
including the initial setting of a trial date and any 
subsequent motions or proceedings that result in delaying that 
date. This 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 future legislation may 
help implement this right. 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) complements, protects, and gives 
content to a defendant's constitutional speedy trial right. 
Similar legislation could enforce the victims' new right in 
this area.

Sec. 2 (cont.). Right to ``adjudicative decisions that duly consider * 
        * * just and timely claims to restitution from the 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. The relevant details for implementing 
the Amendment will be spelledout under the resulting case law 
or, more likely, statutes to enforce the amendment. However, this 
amendment does not confer on victims any mandatory right to 
restitution, nor any rights with regard to a particular payment 
schedule.
    The right conferred on victims is to consideration of just 
and timely claims of restitution. 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.

Sec 2. (cont.). These rights shall not be restricted except when and to 
        the degree dictated by a substantial interest in public safety 
        or the administration of criminal justice, or by compelling 
        necessity.''

    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.
    The amendment does not impose a straightjacket that would 
prevent the proper handling of unusual situations. The 
restrictions language in the amendment explicitly recognizes 
that in certain rare circumstances restrictions may need to be 
created to victims' rights.
    First, in mass victim cases, there may be a need to provide 
certain limited restrictions 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 ability to do just that.
    Third, situations may arise involving inter-gang violence, 
where notifying the member of a rival gang of an offenders' 
impending release may spawn retaliatory violence. Again, this 
provision provides a basis for dealing with such situations.
    The Committee-reported amendment provides that restrictions 
are permitted for a ``substantial interest'' in public safety 
or the administration of criminal justice. In choosing this 
standard, formulated by the U.S. Supreme Court, the Committee 
seeks to provide adequate procedures for law enforcement and 
the courts while ensuring that the restriction does not swallow 
the rights. The Committee also notes that the administration of 
criminal justice exception covers habeas corpus filings and 
proceedings, including those pursuant to 28 U.S.C. 
Sec. Sec. 2254 and 2255. In all other contexts only a 
``compelling'' interest, also a standard formulated by the U.S. 
Supreme Court, will operate to limit the right. The Committee 
stresses that defendants' constitutional rights may well meet 
this standard in many cases. It is also important to note that 
the Constitution contains no other explicit ``restrictions'' to 
victims'' rights.

Sec. 3. ``Nothing in this article shall be construed to provide grounds 
        for a new trial

    This provision is designed to protect criminal trials 
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. However, the 
Committee recognized that if victims were never given an 
opportunity to challenge previously taken judicial actions, 
victims rights might remain routinely ignored. The Committee's 
solution leaves open the possibility that Congress and the 
states, within their respective jurisdictions, could draft 
legislation providing remedies in appropriate circumstances.

Sec. 3 (cont.). ``Nothing in this article shall be construed to * * * 
        authorize any claim for damages.''

    This provision imposes the conventional limitations on 
victims' rights, providing 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, at either 
the state orfederal level. Nor does it limit appropriate 
remedies within the criminal process itself.

Sec. 3 (cont.). Only the victim or the victim's lawful representative 
        may assert the rights established hereunder, and no person 
        accused of the crime may obtain any form of relief hereunder.

    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 
rights.
    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.
    Finally, no one accused of the crime could assert any of 
the rights or obtain any form of relief under the provisions of 
the Amendment.

Sec. 4. The Congress shall have the power to enforce by appropriate 
        legislation the provisions of this article.

    This provision is similar to existing language found in 
section 5 of the 14th Amendment to the Constitution. This 
provision will be interpreted in similar fashion to allow 
Congress to ``enforce'' the rights, that is, to ensure that the 
rights conveyed by the amendment are in fact respected. At the 
same time, consistent with the plain language of the provision, 
the Federal Government and the States will retain their power 
to implement the amendment.

Sec. 4 (cont.). Nothing in this article shall affect the President's 
        authority to grant reprieves or pardons

    The language of the amendment is clear. As Assistant 
Attorney General Viet Dinh testified before the Committee, on 
behalf of the Justice Department, ``* * * the language will 
prevent Congress from enacting legislation that would affect 
the President's power to grant reprieves and pardons. The 
President's reprieve and pardon power under Article II of the 
Constitution is plenary and is in no way affected by the 
proposed amendment.''

Sec. 5. This article shall be inoperative unless it has been ratified 
        as an amendment to the Constitution by the legislatures of 
        three-fourths of the several states within 7 years from the 
        date of its submission to the States by the Congress.

Section 5 (cont.). This article shall take effect on the 180th day 
        after the ratification 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.
    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, 144 F.3d 531 (7th Cir. 1998).

                       VI. Vote of the Committee

    The committee considered on S.J. Res. 1 (Add votes on 
Amendments and the Bill).
    1. Senator Durbin offered an amendment. The amendment to 
re-designate sections 4 and 5 as sections 5 and 6, and insert a 
new section 4, ``Nothing in this article shall be construed to 
deny ordiminish the rights of the accused as guaranteed under 
this Constitution.'' The amendment was defeated by a vote of 6 yeas to 
11 nays, with 2 voting pass.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl                                DeWine (proxy)
Feingold                            Sessions (proxy)
Durbin                              Graham (proxy)
Edwards (proxy)                     Craig
                                    Chambliss
                                    Cornyn
                                    Feinstein
                                    Schumer
                                    Hatch

    2. Senator Feingold offered an amendment. The amendment to 
add that the federal government as well as state government can 
``restrict'' as well as ``deny'' victims' rights. The amendment 
was defeated by a vote of 7 yeas to 10 nays, with 2 voting 
present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine (proxy)
Feingold                            Sessions (proxy)
Schumer (proxy)                     Graham
Durbin                              Craig
Edwards (proxy)                     Chambliss
                                    Cornyn
                                    Feinstein
                                    Hatch

    3. Senator Leahy offered a statutory amendment. The 
amendment in the nature of a complete substitute. The amendment 
was defeated by a vote of 7 yeas to 10 nays, with 2 voting 
present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine (proxy)
Feingold                            Sessions (proxy)
Schumer (proxy)                     Graham
Durbin                              Craig
Edwards (proxy)                     Chambliss (proxy)
                                    Cornyn
                                    Feinstein
                                    Hatch

    4. Senator Durbin offered an amendment. The amendment to 
add that a victim's right not to be excluded from public 
proceedings does not apply when the court determines that the 
victim's testimony would be materially affected if the victim 
hears other testimony at trial. The amendment was defeated by a 
vote of 7 yeas to 10 nays, with 2 voting present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine
Feingold                            Sessions
Schumer (proxy)                     Graham
Durbin                              Craig
Edwards (proxy)                     Chambliss
                                    Cornyn
                                    Feinstein
                                    Hatch

    5. Senator Durbin offered an amendment. The amendment to 
add that victims' rights amendment shall not be construed to 
provide grounds to stay or continue any trial, reopen any 
proceeding, or invalidate any ruling (with exceptions) or to 
provide victims' rights in future proceedings. The amendment 
was defeated by a vote of 8 yeas to 10 nays, with 1 voting 
present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Biden (proxy)                       DeWine (proxy)
Kohl (proxy)                        Sessions
Feingold                            Graham (proxy)
Schumer (proxy)                     Craig
Durbin                              Chambliss
Edwards (proxy)                     Cornyn
                                    Feinstein
                                    Hatch

    6. Senator Leahy offered an amendment. The amendment to 
make clear that this constitutional amendment does not affect 
the President or a ``Governor's'' authority to grant reprieves 
or pardons. The amendment was defeated by a vote of 7 yeas to 
10 nays, with 2 voting present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine (proxy)
Feingold                            Sessions (proxy)
Schumer (proxy)                     Graham (proxy)
Durbin                              Craig
Edwards (proxy)                     Chambliss
                                    Cornyn
                                    Feinstein
                                    Hatch

    7. Senator Feingold offered an amendment. The amendment to 
expand the reasons victims' rights may be restricted to include 
a substantial interest in the ``administration of justice.'' 
The amendment was defeated by a vote of 7 yeas to 10 nays, with 
2 voting present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine (proxy)
Feingold                            Sessions
Schumer (proxy)                     Graham (proxy)
Durbin (proxy)                      Craig
Edwards (proxy)                     Chambliss
                                    Cornyn
                                    Feinstein
                                    Hatch

    8. Senator Feingold offered an amendment. The amendment to 
delete the phrase that states that the rights of victims of 
violent crime ``are hereby established.'' The amendment was 
defeated by a vote of 7 yeas to 10 nays, with 2 voting present.
        YEAS                          NAYS
Leahy                               Grassley
Kennedy (proxy)                     Kyl
Kohl (proxy)                        DeWine (proxy)
Feingold                            Sessions
Schumer (proxy)                     Graham (proxy)
Durbin (proxy)                      Craig
Edwards (proxy)                     Chambliss
                                    Cornyn
                                    Feinstein
                                    Hatch

    9. The Committee voted on final passage. The resolution was 
ordered favorably reported, without amendment, by a roll call 
vote of 10 yeas to 8 nays, with 1 voting pass.
        YEAS                          NAYS
Grassley                            Leahy
Kyl                                 Kennedy (proxy)
DeWine (proxy)                      Biden (proxy)
Sessions                            Kohl (proxy)
Graham (proxy)                      Feingold
Craig                               Schumer
Chambliss                           Durbin (proxy)
Cornyn
Feinstein
Hatch                               Edwards (proxy)

                           VII. Cost Estimate


S.J. Res. 1--Proposing an amendment to the Constitution of the United 
        States to protect the rights of crime victims

    S.J. Res. 1 would propose amending the Constitution to 
protect the rights of crime victims. The legislatures of three-
fourths of the states would be required to ratify the proposed 
amendment within seven years for the amendment to become 
effective. By itself, this resolution would have no impact on 
the federal budget. If the proposed amendment to the 
Constitution is approved by the states, this could result in 
additional costs for the federal court system. CBO does not 
expect any additional costs would be significant because the 
amendment would apply to crimes of violence, which are rarely 
prosecuted at the federal level. Enactment of S.J. Res. 1 would 
not affect direct spending or receipts.
    S.J. Res. 1 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. 
For the amendment to become part of the Constitution, three-
fourths of the state legislatures would have to ratify the 
resolution within seven years of its submission to the states 
by the Congress. However, no state would be required to take 
action on the resolution, either to reject it or to approve it.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for federal costs), and Melissa Merrell (for the state and 
local impact). This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                   VIII. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that S.J. Res. 1 will not have a direct regulatory 
impact.

                 IX. ADDITIONAL VIEWS OF SENATOR HATCH

    At the outset, I would like to commend Senators Kyl and 
Feinstein for their unwavering commitment and tireless efforts 
to providing a constitutional guarantee for the rights of crime 
victims. I firmly believe that we should protect the rights of 
victims of crime.
    The version of the Victims' Rights Amendment introduced in 
this Congress contains some significant differences from 
earlier versions. While I always have supported a 
constitutional amendment for victims' rights, I previously 
expressed concerns over various provisions in earlier texts. I 
am heartened to see that most of my earlier concerns have been 
addressed by these revisions.
    For example, the last clause of Section 1 of the amendment 
proposed in S.J. Res. 3 in the 106th Congress and in S.J. Res. 
44 in the 105th Congress provided that victims have the right 
``to reasonable notice of the rights established'' by the 
amendment. I was concerned that this language was unnecessary 
and that it was unlike other constitutional provisions because 
it created an affirmative duty on the Government to provide 
notice of what rights the Constitution provides. I am pleased 
to note that the troublesome language has been deleted from 
S.J. Res. 1.
    I also appreciate the deletion of a provision in earlier 
versions of this amendment that allowed victims to ``reopen'' 
proceedings relating to conditional release. Although I have 
always supported the consideration of a victim's views and 
safety concerns, allowing a victim to ``reopen'' a bail 
decision might infringe upon a defendant's constitutionally 
protected liberty interest in conditional release, once such 
release is granted.
    The latest version of S.J. Res. 1 also modified the 
standard for restricting victims' rights. I was concerned that 
earlier versions provided a standard that could in some 
circumstances prove too rigid to adequately protect the public 
and ensure the administration of justice. In particular, 
earlier versions provided that ``[e]xceptions to the rights 
established by this article may be created only when necessary 
to achieve a compelling interest.'' This compelling interest 
standard presumably was intended to be analogous to Supreme 
Court jurisprudence in strict scrutiny cases.
    By contrast, the current version of S.J. Res. 1 includes a 
more flexible and workable standard for restricting victims' 
rights while still providing strong protection for those 
rights. It states that ``[t]hese rights shall not be restricted 
except when and to the degree dictated by a substantial 
interest in public safety or the administration of criminal 
justice, or by compelling necessity.'' While I still believe 
that it may be more prudent to remain silent on the appropriate 
standard of review, my reservations are significantly 
diminished by the new flexible standard.
    In prior years, I also expressed concern with the use of 
the term ``immunities'' in the final section of the amendment. 
All of the earlier provisions of the amendment referred to 
victims' ``rights,'' and the rationale for introducing the term 
``immunities'' in the final section was unclear. Considering 
the problems that courts have had in defining and applying this 
term elsewhere in the Constitution, I thought it most prudent 
to delete the term here. I am pleased that my colleagues now 
agree with my assessment.
    Although I find that the revised language of S.J. Res. 1 
cured many of my earlier criticisms, it also created some new 
concerns. For example, I had concerns with respect to the new 
provision which states that ``[n]othing in this article shall 
affect the President's authority to grant reprieves or 
pardons.'' Specifically, I feared that application of the 
principles inclusius unius exclusio alterius might result in an 
inappropriate interpretation of the amendment as restricting a 
Governor's ability to grant reprieves or pardons. However, as 
Senator Kyl explained during the Executive Committee meetings, 
the provision regarding Presidential pardons was added because 
the President's pardon authority is explicitly mentioned in the 
U.S. Constitution. In contrast, a Governor's pardon authority 
is never mentioned in the federal Constitution, so the victims' 
rights amendment could not be construed as infringing upon a 
Governor's authority to grant reprieves and pardons. I want to 
make clear that it is the intent of the framers of this 
constitutional amendment to preserve a Governor's authority to 
grant reprieves and pardons to the same extent as the 
President.
    In addition, I continue to have reservations about the 
appropriateness of limiting a constitutional amendment to 
victims of ``violent'' crimes. According to advocacy groups, 
this might remove as many as 30 million victims of non-violent 
crimes from the amendment's safeguards. I believe that 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.'' It is 
unclear to me that a person who suffers a minor assault is more 
deserving of constitutional rights than an elderly widow who 
lost her life savings in a fraudulent investment scheme. While 
I appreciate the need to preserve governmental resources for 
those cases that are most likely to need victim protections, I 
continue to question whether the violent/non-violent 
distinction is the best way to do so. Another alternative might 
be to vest rights for certain classes of felonies, which would 
ensure that the victims of the most serious crimes--no matter 
whether violent or non-violent--have the protections they need 
when a criminal case is brought. This would not be the first 
time that a constitutional right turned on the classification 
of an offense. For example, it is well-established that a 
defendant's right to counsel does not attach if the offender is 
convicted of a misdemeanor and is not sentenced to jail. Scott 
v. Illinois, 440 U.S. 367 (1979). Similarly, a defendant only 
has a right to a jury trial when he is charged with a Class A 
misdemeanor or a felony. Baldwin v. New York, 399 U.S. 66 
(1970). Notwithstanding these concerns, I agree with my friends 
from Arizona and California that we must avoid the temptation 
to let the ``perfect'' become the enemy of the ``good.'' I find 
the revised victims' rights amendment to be significantly 
improved and believe that victims right need protection. 
Accordingly, I support S.J. Res. 1.

                                                       Orrin Hatch.

           X. ADDITIONAL VIEWS OF SENATORS LEAHY AND KENNEDY

    All of us agree that victims of crime deserve our support 
and deserve to have strong and enforceable rights. The question 
is whether these rights should be added as an amendment to the 
Constitution.
    The framers made the Constitution difficult to amend 
because it was never intended to be used for general 
legislative purposes. If it is not necessary to amend the 
Constitution to achieve a particular goal, it is necessary not 
to amend it. The proponents of S.J. Res. 1 would amend the 
Constitution--over the vigorous objections of constitutional 
scholars, victims' rights groups, judges, prosecutors, and even 
the Chief Justice of the United States Supreme Court--even 
though their goal can be achieved through legislation. We 
strongly support victims' rights. We are confident that we can 
achieve this goal by the enactment of legislation, and we have 
introduced S.805 to do so.

                THE CRIME VICTIMS ASSISTANCE ACT, S.805

    To establish effective and enforceable rights for victims 
of crime, we introduced S.805, the Crime Victims Assistance 
Act, on April 7, 2003. In fact, our proposed statute will do 
more to protect crime victims than S.J. Res. 1--without taking 
the unnecessary and time-consuming step of amending the 
Constitution, and without opening a Pandora's box of serious, 
long-term consequences.
    Unlike S.J. Res. 1, which leaves important terms and 
concepts undefined, our statute clearly defines the rights of 
victims and the mechanisms for their implementation and 
enforcement. Unlike S.J. Res. 1, which is limited to victims of 
violent crime, our statute provides protection for all victims 
of crime. It creates specific rights and specific support 
services for victims, and it authorizes the funds needed to 
guarantee those rights and services. It achieves the goals of 
S.J. Res. 1, without burdening state and local governments with 
unfunded mandates or requiring the diversion of scarce 
resources from criminal prosecutions. Instead of replacing 
programs that have already been implemented by a majority of 
states, it enables states to retain their full power to protect 
victims in the ways most appropriate to local concerns and 
local needs.
    In sum, the Crime Victims Assistance Act accomplishes three 
major goals. It provides enhanced rights and protections for 
victims of federal crimes. It assists victims of state crimes 
through grants to promote compliance with state laws on 
victims' rights. And it improves the manner in which the Crime 
Victims Fund is managed and preserved.
Title I
    Title I of our bill modifies federal law and the Federal 
Rules of Criminal Procedure to enhance protections for victims 
of federal crimes, and to give victims a greater voice in the 
prosecution of the criminals who commit such crimes.
    Section 101 requires the government to consult with the 
victim prior to a detention hearing to obtain information on 
any threat the suspected offender may pose. During the 
detention hearing, the court must make an inquiry about the 
views of the victim and consider these views in determining 
whether the suspect should be detained.
    Section 102 requires the court to consider the interests of 
the victim in the prompt and appropriate disposition of the 
case, free from unreasonable delay.
    Section 103 requires the government to make reasonable 
efforts to notify the victim of any proposed or contemplated 
plea agreement, and to consider the victim's views about it.
    Section 104 extends the Victim Rights Clarification Act to 
apply to televised proceedings, and it amends the Victims' 
Rights and Restitution Act to strengthen the right of crime 
victims to be present at trials and other court proceedings.
    Section 105 requires probation officers to include as part 
of the presentence report any victim impact statements 
submitted by victims. It extends to all victims the right to 
make statements or present information at sentencing, and it 
requires courts to consider victims' views before imposing 
sentence.
    Section 106 requires the government to give victims the 
earliest possible notice of hearings on modification of 
probation or supervised release, discharges from psychiatric 
facilities, and grants of executive clemency.
    Section 107 establishes specific steps to enforce the 
rights of federal crime victims, including the rights 
established by our proposed statute. An office within the 
Department of Justice will be established to receive and 
investigate complaints relating to the violation of the rights 
of crime victims. Employees who fail to protect these rights 
will be disciplined. In addition, Section 104 gives standing to 
prosecutors and victims to assert the rights of victims to 
attend and observe trials.
    The rights established by Title I fill existing gaps in 
federal criminal law and represent a major step toward ensuring 
that the rights of victims of federal crimes receive full, 
appropriate, and sensitive treatment. Unlike S.J. Res. 1, these 
rights work together with existing state laws. They protect 
victims without overriding the efforts of states to protect 
victims in ways appropriate to each state's unique needs.
Title II
    Title II of the Crime Victims Assistance Act will assist 
victims of crime at the state and local level, to ensure that 
they receive the counseling, information, and assistance they 
need toparticipate in the criminal justice system to the 
fullest extent possible.
    Section 201 authorizes pilot programs in five states to 
establish and operate compliance authorities to promote the 
effective enforcement of state laws on the rights of victims of 
crime. These compliance authorities will receive and 
investigate complaints relating to the provision or violation 
of victims' rights and issue findings.
    Section 202 provides resources to develop state-of-the-art 
procedures for notifying victims of important dates and 
developments.
    Section 203 authorizes grants to establish juvenile justice 
programs to promote victim participation in the criminal 
justice system.
    Section 204 supports the development of case management 
programs to coordinate the various programs that affect or 
assist victims, in order to streamline access to services and 
reduce ``revictimization'' by the criminal justice system.
    Section 205 expands the capacity of providers of victim 
services to serve victims with special communication needs, 
such as limited English proficiency, hearing disabilities, and 
developmental disabilities.
    Instead of compelling states to modify their criminal 
justice procedures in particular ways, these initiatives 
provide federal resources to establish effective victims' 
rights compliance and assistance programs at the state level.

Title III

    To make additional improvements possible, the Crime Victims 
Assistance Act provides increased federal financial support for 
victim assistance and compensation programs. It replaces the 
cap on spending from the Crime Victims Fund, which has 
prevented millions of dollars in fund deposits from reaching 
victims and supporting essential services. It adopts an 
approach supported by victim groups to strengthen the stability 
of the fund and protect its assets, while enabling more funds 
to be distributed for victim programs. It also ensures that the 
amounts deposited in the Crime Victims Fund will be distributed 
in a timely manner to assist victims of crime, as intended by 
current law--and will not be diverted to offset increased 
spending.

                               CONCLUSION

    Our statutory proposal is clear and comprehensive. It 
protects the core rights contained in S.J. Res. 1, provides 
essential victims' services, and authorizes funding to 
implement these rights and services. There is no need to amend 
the Constitution. S.J. Res. 1 is both unnecessary and unwise. 
The proposed constitutional amendment would make the same 
promises on victims' rights, but it provides no meaningful 
remedy for violations of these rights. It imposes mandates on 
state and local prosecutors, but it fails to provide funding. 
As a result, it will overburden already tight federal, state, 
and local budgets, and compromise diligent and effective 
prosecutions.
    With a simple majority of both Houses of Congress, S.805, 
the Crime Victims Assistance Act, can be sent to the President 
immediately. Its provisions will make an immediate and large 
difference in the lives of crime victims throughout the 
country. There is no need to go through the elaborate and time-
consuming procedures of amending the Constitution. It would be 
foolish to do so, when all it means is that once the 
constitutional amendment is approved by Congress and ratified 
by the states, Congress will then have to enact a statute like 
S.805 to implement the amendment. Why not pass the statute now, 
and protect victims' rights as soon as possible?

                                   Patrick J. Leahy.
                                   Edward M. Kennedy.

XI. MINORITY VIEWS OF SENATORS LEAHY, KENNEDY, KOHL, FEINGOLD, SCHUMER, 
                               AND DURBIN

                            A. INTRODUCTION

    Never before in the history of the Republic have we passed 
a constitutional amendment to guarantee rights to a politically 
popular 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 striving 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.
    The emotional engine feeding 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 the 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. 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' rights throughout the federal system and, 
at the same time, either require the States to follow suit as a 
condition of federal funding, or assist the States in giving 
force to their own, locally-tailored statutes and 
constitutional provisions. Instead, the proponents of S.J. Res. 
1 invite Congress to delay relief for victims with a complex 
and convoluted amendment to our fundamental law--an amendment 
that is less a remedy than another Pandora's Box which, like 
the 18th amendment, will loose a host of unintended 
consequences.
    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). Such inconsistency may 
be politically expedient, but it leaves the final product 
unreliable as an interpretive tool. 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 doctrine.

 B. IT IS NOT NECESSARY TO AMEND THE CONSTITUTION TO PROTECT VICTIMS' 
                                 RIGHTS

    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 
``necessary.''
1. 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\ Nor do we need a constitutional 
amendment to provide victims with notice of hearing dates or to 
require just and timely consideration of restitution.
---------------------------------------------------------------------------
    \1\ See United States v. Salerno, 481 U.S. 739 (1987) (Constitution 
does not prohibit courts from considering safety of victims in making 
pretrial detention decision); Payne v. Tennessee, 501 U.S. 808 (1991) 
(Constitution does not prohibit jury from considering victim impact 
statement at sentencing phase of capital trial).
---------------------------------------------------------------------------
    Where, then, is the objectionable body of law that might 
justify the extraordinary step of amending the United States 
Constitution? There is none. The Senate will search the pages 
of the majority report in vain for any such basis for this 
extraordinary proposal.
    A letter sent to the Committee by 450 professors of 
constitutional and criminal law concludes, ``There is no 
pressing need for a victim's rights amendment, as virtually 
every right provided victims by the amendment can be or is 
already protected by state and federal law.'' \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 
rights.'' \3\
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    \2\ Letter from Law Professors Regarding the Proposed 
Constitutional Amendment, Nov. 3, 2003.
    \3\ A Proposed Constitutional Amendment To Protect Crime Victims, 
Hearing on S.J. Res. 3 before the Senate Comm. on the Judiciary, 106th 
Cong., 1st Sess. 216, 218 (Mar. 24, 1999) [hereinafter ``Hearing of 
Mar. 24, 1999''].
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    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. The majority report 
offers one explanation. Quoting Professor Tribe, the majority 
tells us (in part III) that statutes and State constitutional 
amendments ``are likely * * * 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.''
    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 the hope of sending a signal that might 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 overcome such real-world influences with a 
constitutional amendment like S.J. Res. 1, which creates rights 
riddled with qualifications and prohibits the award of damages 
for their violation.
    In a 1998 commentary, conservative constitutional scholar 
Bruce Fein discussed the problem of official indifference to 
victims' rights, noting that a federal constitutional right 
would provide no guarantee of effectiveness:

         It is said by amendment proponents * * * that state 
        judges and prosecutors often short-change the scores of 
        existing victims' rights statutes. If so, they would 
        equally be inclined to flout the amendment. The 
        judicial oath is no less violated in the first case as 
        in the second.\4\
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    \4\ Bruce Fein, Deforming the Constitution, Wash. Times, July 6, 
1998, at A14.

    John Perry was a New York City police officer who lost his 
life attempting to rescue individuals from the attack on the 
World Trade Center on September 11, 2001. A lawyer, he had 
served with the NYPD for 8 years when he decided to return to 
the practice of law. He submitted his retirement papers and 
surrendered his badge early on the morning of September 11, 
2001. Immediately thereafter, he learned of the attack on the 
World Trade Center. He retrieved his badge, bought an NYPD 
shirt and ran to the World Trade Center, located just blocks 
away. Officer Perry saved the lives of workers in the 
underground plaza but lost his own life that day. His mother, 
Patricia Perry, testified that her son ``would appreciate the 
concern for victims, but would oppose the Victims' Rights 
Amendment.'' She continued, ``instead of focusing on this 
Amendment, Congressshould ensure that resources are offered as 
needed to help heal the pain and loss of victims and victims' 
families.'' \5\
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    \5\ A Proposed Constitutional Amendment to Protect Crime Victims, 
Hearing on S.J. Res. 1 before the Senate Comm. on the Judiciary, 108th 
Cong., 1st Sess. (Apr. 8, 2003) [hereinafter ``Hearing of Apr. 8, 
2003''] (statement of Patricia Perry). At the time of this writing, the 
printed record of this hearing was not yet available.
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    Two supporters of S.J. Res. 1--John Gillis, the current 
Director of the Justice Department's Office for Victims of 
Crime (``OVC'') and Professor Douglas Beloof--point to the 
failure to educate lawyers in crime victim law as one of the 
most substantial barriers to enforcement to victims' rights. 
While they think a federal constitutional amendment would 
achieve such education, they acknowledge a simpler solution: 
Require State bar examiner to include these rights on State bar 
exams.\6\
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    \6\ John Gillis & Douglas Beloof, ``The Next Step For a Maturing 
Victim Rights Movement: Enforcing Crime Victim Rights In the Courts,'' 
33 McGeorge L. Rev. 689, 697-698 (Summer 2002).
---------------------------------------------------------------------------
    We believe the only way to change entrenched attitudes 
toward victims' rights is through systematic training and 
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. Why 
then undertake a massive effort to amend our Constitution if 
what we really need to do is spend time and money on training 
and education?

2. Statutes Are Preferable To Amending the Federal Constitution

    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 United States Judicial Conference ``strongly prefers a 
statutory approach as opposed to a constitutional amendment'' 
because it ``would allow all participants in the federal 
criminal justice system to gain experience with the principles 
involved without taking the unusual step of amending our 
nation's fundamental legal charter.'' \7\
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    \7\ Letter from Leonidas Ralph Mecham, Secretary, Judicial 
Conference of the United States, to Sen. Hatch, Chairman, and Sen. 
Leahy, Ranking Member, Senate Comm. on the Judiciary, Apr. 30, 2003.
---------------------------------------------------------------------------
    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 ``is more 
certain and immediate, an advantage to victims who under the 
proposed amendment approach, may wait years for relief during 
the lengthy and uncertain ratification process.'' \8\
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    \8\ 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). See also Letter from E. Norman Veasey, Chief Justice, 
Supreme Court of Delaware, to Sen. Biden, June 26, 2003 (``The 
Conference of Chief Justices has long opposed [the proposed 
constitutional amendment''); Letter from Joseph Weisberger, Chief 
Justice, Supreme Court of Rhode Island, to Rep. Charles Canady, 
Chairman, and Rep. Melvin Watt, Ranking Member, House Subcomm. on the 
Constitution, Feb. 8, 2000 (``CCJ concurs with the recommendations of 
the U.S. Judicial Conference regarding a statutory alternative to this 
issue''); Hearing of Mar. 24, 1999, at 251 (same).
---------------------------------------------------------------------------
    Other major organizations, including several victims 
groups, concur.
     The National Clearinghouse for the Defense of 
Battered Women ``strongly opposes'' this amendment and argues 
that statutory alternatives are ``more suitable'':

         The federal constitution is the wrong place to try to 
        ``fix'' the complex problems facing victims of crime; 
        statutory alternatives and state remedies are more 
        suitable. Our nation's constitution should not be 
        amended unless there is a compelling need to do so and 
        there are no remedies available at the state level. 
        Instead of altering the U.S. Constitution, we urge 
        policy makers to consider statutory alternatives and 
        statewide initiatives that would include the 
        enforcement of already existing statutes, and practices 
        that can truly assist victims of crimes, as well as 
        increased direct services to crime victims.\9\
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    \9\ Position paper by the National Clearinghouse for the Defense of 
Battered Women, prepared for the Senate Comm. on the Judiciary, Hearing 
of Apr. 8, 2003.

     Safe Horizon is the nation's leading victims' 
assistance organizations, serving over 350,000 victims per 
year. In the aftermath of the September 11 attacks, Safe 
Horizon distributed over $90 million in financial assistance to 
40,000 victims and survivors. This victim assistance agency 
also opposes S.J. Res. 1. It wrote to the Committee that the 
proposed amendment ``may be well intentioned, but good 
---------------------------------------------------------------------------
intentions do not guarantee just results'':

         We believe considerable progress with respect to 
        victims' rights has been made in New York and elsewhere 
        in recent years, although we recognize that still more 
        needs to be done. Almost everywhere, statutory 
        frameworks provide victim protections and a majority of 
        states have also passed constitutional amendments. 
        However, these statutory reforms, such as requiring 
        officials to take steps to notify victims about court 
        proceedings, must be enforced to be meaningful. 
        Additionally, services for victims desperately need 
        more financial support. When so much remains to be done 
        to enforce existing victims' rights provisions and to 
        expand the support services so vital to victims, we 
        find it difficult to justify the extensive resources 
        needed to pass a Constitutional amendment.\10\
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    \10\ Letter from Gordon J. Campbell, Chief Executive Officer, Safe 
Horizon, to Sen. Hatch, Chairman, and Sen. Leahy, Ranking Member, 
Senate Comm. on the Judiciary, Apr. 7, 2003.

     The National Network to End Domestic Violence 
cautions that S.J. Res. 1 would ``drain valuable resources from 
the system,'' ``prevent innovative solutions,'' ``provide[s] 
inadequate protections for victims of domestic violence,'' and 
generally constitute ``an empty promise to victims''; it 
concludes, ``[T]he objectives of the victims'' rights amendment 
can be met more effectively through far less drastic means and 
means that can be more easily altered if circumstances change 
or experience yields unanticipated consequences.'' \11\
---------------------------------------------------------------------------
    \11\ Statement of Lynn Rosenthal, Executive Director, National 
Network to End Domestic Violence, prepared for the Senate Comm. on the 
Judiciary, Hearing of Apr. 8, 2003.
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     The Pennsylvania Coalition Against Domestic 
Violence states that ``S.J. Res. 1 would fundamentally alter 
the nation's founding charter with negligible benefits for 
victims and enormous consequences for states.'' In the 
experience of this organization, ``victim's rights can be 
sufficiently established through the development of state 
codes.'' \12\
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    \12\ Letter from Susan Kelly-Dreiss, Executive Director, 
Pennsylvania Coalition against Domestic Violence, to Sen. Specter, Apr. 
7, 2003.
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     The NOW Legal Defense and Education Fund writes 
that the proposed constitutional amendment ``raises concerns 
that outweigh its benefits,'' but ``fully endorse[s] ? 
initiatives to ensure consistent enforcement of existing 
federal and state laws, and enactment and enforcement of 
additional statutory reform that provide important protections 
for [victims].'' \13\
---------------------------------------------------------------------------
    \13\ Position paper by the NOW Legal Defense and Education Fund, 
prepared for the Senate Comm. on the Judiciary, July 2003.
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     The National Sheriffs' Association, the Leadership 
Conference on Civil Rights, the Independence Institute, the 
National Association of Criminal Defense Attorneys, the 
National Legal Aid and Defenders Association, the NAACP, the 
ACLU, the Justice Policy Institute, the Center on Juvenile and 
Criminal Justice, the Youth Law Center, the National Center on 
Institutions and Alternatives, the American Friends Service 
Committee, the Friends Committee on National Legislation, and 
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 Constitution.
    The widespread support for enacting victims' rights by 
statute arises in part from evidence that statutes work--they 
can ensure that victims of crimes are accorded important rights 
in the criminal justice process. 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, the Senate should not propose to 
amend the Constitution. That is an extraordinary action of last 
resort, not undertaken as a first option.

3. An Extensive Framework of Victims' Rights Has Already Been Created

    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 already been created through federal and 
State legislation and amendments to State constitutions. 
Moreover, 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.
            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. Among the first such legislation 
was the Victim and Witness Protection Act of 1982,\14\ 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,\15\ which encouraged the States to maintain 
programs that serve victims of crime. The Victims of Crime Act 
also established a Crime Victims' Fund, which now matches up to 
60 percent of the money paid by States for victim compensation 
awards.
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    \14\ P.L. 97-291, Oct. 12, 1982, 96 Stat. 1248.
    \15\ P.L. 98-473, title I, ch. XIV, Oct. 12, 1984, 99 Stat. 1837.
---------------------------------------------------------------------------
    In 1990, Congress enacted the Victims' Rights and 
Restitution Act.\16\ 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.
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    \16\ P.L. 101-647, title V, Nov. 29, 1990, 104 Stat. 4789.
---------------------------------------------------------------------------
    The Violence Against Women Act of 1994 (VAWA) \17\ 
authorized over $1.6 billion over six years to assist victims 
of violence and prevent violence against women and children. 
Programs authorized under VAWA include the National Domestic 
Violence Hotline, S.T.O.P. grants for training police and 
prosecutors to respond more effectively to violent crimes 
against women, and funding for battered women's shelters and 
rape crisis centers, as well as other crucial services for 
victims of domestic and sexual violence. That Act has produced 
dramatic results: hundreds of thousands of women have been 
provided shelter to protect themselves and their children; a 
new national domestic violence hotline has answered hundreds of 
thousands of calls for help; and there has been a fundamental 
change in the way victims of violence are treated by the legal 
system.\18\
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    \17\ P.L. 103-322, title IV, Sept. 13, 1994, 108 Stat. 1796.
    \18\ VAWA was reauthorized in 2000 and extended in 2003. See P.L. 
106-386, Oct. 28, 2000, 114 Stat. 1464; P.L. 108-21, Sec. 612, Apr. 30, 
2003, 117 Stat. 650 (authorizing new transitional housing program).
---------------------------------------------------------------------------
    The Mandatory Victims Restitution Act of 1996 \19\ 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 \20\ 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.
---------------------------------------------------------------------------
    \19\ P.L. 104-132, title IIA, Apr. 24, 1996, 110 Stat. 1214.
    \20\Id., title IIC.
---------------------------------------------------------------------------
    The Victim Rights Clarification Act of 1997 \21\ 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 (1) excluding a victim from the trial on the ground 
that he or she might be called to provide a victim impact 
statement at sentencing, and (2) 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 trials of Timothy 
McVeigh and Terry Nichols and to provide victim impact 
testimony.
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    \21\ P.L. 105-6, Sec. 2(a), Mar. 19, 1997, 111 Stat. 12.
---------------------------------------------------------------------------
    In October 1998, Congress passed the Crime Victims With 
Disabilities Awareness Act \22\ which focused attention on the 
too-often overlooked needs of crime victims with disabilities. 
It directed the National Academy of Sciences to 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.
---------------------------------------------------------------------------
    \22\ P.L. 105-301, Oct. 17, 1998, 112 Stat. 2838.
---------------------------------------------------------------------------
    The same month, Congress passed the Identity Theft and 
Assumption Deterrence Act,\23\ which, among other things, 
created a centralized complaint and consumer education service 
for victims of identity theft. Under the Act, the Federal Trade 
Commission is responsible for establishing procedures to (1) 
log and acknowledge the receipt of complaints by victims of 
identity theft; (2) provide informational materials to victims; 
and (3) refer victim complaints to the appropriate entities, 
including national consumer reporting agencies and law 
enforcement agencies.
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    \23\ P.L. 105-318, Sec. 5, Oct. 30, 1998, 112 Stat. 3007.
---------------------------------------------------------------------------
    Also in October 1998, the Torture Victims Relief Act \24\ 
amended the Foreign Assistance Act of 1961, authorizing the 
President to provide grants to programs in foreign countries 
that are carrying out projects or activities specifically 
designed to treat victims of torture. In addition, this 
legislation provided grants for U.S. rehabilitation programs, 
social and legal services for victims, and training of foreign 
service officers with respect to torture victims, including 
gender-specific training on the subject of interacting with 
women and men who are victims of torture by rape or any other 
form of sexual violence.
---------------------------------------------------------------------------
    \24\ P.L. 105-320, Oct. 30, 1998, 112 Stat. 3016.
---------------------------------------------------------------------------
    The Victims of Trafficking and Violence Protection Act \25\ 
was signed into law in October 2000. This law requires the 
State Department to establish an office to monitor and combat 
trafficking in persons and provide assistance to trafficking 
victims. It also provides support for victims of international 
terrorism, by facilitating the enforcement of court-ordered 
judgments against state sponsors of terrorism, and by enabling 
the OVC to provide more immediate and effective assistance to 
victims of terrorism abroad.
---------------------------------------------------------------------------
    \25\ P.L. 106-386, Oct. 28, 2000, 114 Stat. 1464.
---------------------------------------------------------------------------
    Congress acted swiftly to help the victims of the September 
11, 2001, terrorist attacks. Within 10 days, we passed the 
September 11th Victim Compensation Fund of 2001,\26\ to provide 
fair compensation to those most affected by this national 
tragedy. A few months later, we passed the Victims of Terrorism 
Tax Relief Act,\27\ which exempted from income taxes any 
individual who died as a result of wounds or injury incurred in 
the September 11 attacks, the anthrax attacks in the fall of 
2001, or the Oklahoma City bombing in April 1995. In addition, 
as part of the USA PATRIOT Act of 2001,\28\ we made several 
significant changes to the Victims of Crime Act, aimed at 
improving the manner in which the Crime Victims Fund is managed 
and preserved.
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    \26\ P.L. 107-042, Sept. 22, 2001, 115 Stat. 230.
    \27\ P.L. 107-134, Jan. 23, 2002, 115 Stat. 2427.
    \28\ P.L. 107-056, title VI, subtitle B, Oct. 26, 2001, 115 Stat. 
272.
---------------------------------------------------------------------------
    All these federal statutes have made an immediate 
difference in the lives of victims, including victims of 
terrorism. But despite these gains, some constitutional 
amendment proponents continue to assert that statutes do not 
work to provide victims with participatory rights. In 
particular, they cite the Victim Rights Clarification Act of 
1997 as evidence that statutes cannot adequately protect 
avictim's rights.\29\ Given these assertions, we believe it important 
to revisit the history of the Victim Rights Clarification Act.
---------------------------------------------------------------------------
    \29\ For example, the two lead sponsors of S.J. Res. 1 have 
repeatedly stated that the trial judge in the Oklahoma City bombing 
case either ignored the Act or willfully refused to enforce it. See, 
e.g., Transcript of Markup, Senate Comm. on the Judiciary, July 24, 
2003, at 40-44 (Sen. Feinstein); Transcript of Markup, Senate Comm. on 
the Judiciary, June 25, 1998, at 16 (Sen. Feinstein); id. at 25 (Sen. 
Kyl). The majority report echoes this view, stating (in part IV(3)) 
that the Act ``did not fully vindicate the victims' right to attend the 
trial.''
---------------------------------------------------------------------------
    On June 26, 1996, during proceedings in the first Oklahoma 
City bombing case against defendant Timothy McVeigh, Chief 
Judge Richard Matsch issued what many of us thought was a 
bizarre pretrial order. He held that any victim who wanted to 
testify at the penalty hearing, assuming McVeigh was convicted, 
would be excluded from all pretrial proceedings and from the 
trial, to avoid any influence from that experience on their 
testimony. The prosecution team moved for reconsideration, but 
the judge denied the motion and reaffirmed his ruling on 
October 4, 1996.
    Congress proceeded to pass the Victim Rights Clarification 
Act, which President Clinton signed into law on March 19, 1997. 
One week later, Judge Matsch reversed his pretrial order and 
permitted observation of the trial proceedings by potential 
penalty phase victim impact witnesses.\30\ In other words, 
Judge Matsch did what the statute told him to do. In fact, 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.
---------------------------------------------------------------------------
    \30\ United States v. McVeigh, 958 F. Supp. 512, 515 (1997).
---------------------------------------------------------------------------
    Two members of the government team that prosecuted the 
Oklahoma City bombing case--Beth Wilkinson and James 
Orenstein--attested to the efficacy of the Victim Rights 
Clarification Act in their appearances before the Committee. 
According to Ms. Wilkinson:

          What happened in [the McVeigh] case was once you all 
        passed the statute, the judge said that the victims 
        could sit in, but they may have to undergo a voir dire 
        process to determine * * * whether their testimony 
        would have been impacted. * * * I am proud to report to 
        you that every single one of those witnesses who 
        decided to sit through the trial * * * survived the 
        voir dire, and not only survived, but I think changed 
        the judge's opinion on the idea that any victim impact 
        testimony would be changed by sitting through the 
        trial. * * * [T]he witnesses underwent the voir dire 
        and testified during the penalty phase for Mr. McVeigh.
          It worked in that case, but it worked even better in 
        the next case. Just 3 months later when we tried the 
        case against Terry Nichols, every single victim who 
        wanted to watch the trial either in Denver or through 
        closed-circuit television proceedings that were 
        provided also by statute by this Congress, were 
        permitted to sit and watch the trial and testify 
        against Mr. Nichols in the penalty phase * * * without 
        even undergoing a voir dire process.\31\
---------------------------------------------------------------------------
    \31\ Hearing of Mar. 24, 1999, at 65.

Similarly, Mr. Orenstein testified, ``As a result of the 
[Victim Rights Clarification Act], no victim was excluded from 
testifying at the defendants' penalty hearing on the basis of 
having attended earlier proceedings.'' \32\
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    \32\ Hearing of Apr. 8, 2003 (statement of James Orenstein).
---------------------------------------------------------------------------
    The testimony of Ms. Wilkinson and Mr. Orenstein on this 
point has never been contested. In addition, we are unaware of 
any case after the Oklahoma City bombing trials in which the 
Victim Rights Clarification Act has been less than fully 
effective.
    To summarize, in the Timothy McVeigh case, the trial judge 
got the law of victims' rights wrong in an initial pretrial 
ruling. That ruling was promptly opposed by prosecutors, 
swiftly corrected by Congress, and duly reversed by the trial 
judge himself before the trial began. By the time McVeigh's 
codefendant went to trial, any uncertainty about the new 
legislation had been resolved. What that history shows is not 
that statutes don't work; it shows precisely why they do. If we 
got the law of victims' rights wrong in a constitutional 
amendment, or the Supreme Court interpreted a constitutional 
victims' rights amendment wrongly, a solution would not come so 
swiftly. That is why Congress has been slow to 
constitutionalize new procedural rights that can be provided by 
statute, and that is why it should remain so.
            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. 1, as well as 
others. In addition, some 33 States have amended their State 
constitutions to provide a variety of protections and rights 
for crime victims. As the majority report notes (in footnote 
1), ``These amendments passed with overwhelming popular 
support.''
    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. 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 asatisfactory job 
of keeping them informed, providing them an opportunity to have a say 
in certain decisions and notifying them about case outcomes.'' \33\
---------------------------------------------------------------------------
    \33\ Susan W. Hillenbrand & Barbara E. Smith, Victims Rights 
Legislation: An Assessment of its Impact on Criminal Justice 
Practitioners and Victims 26 (May 1989).
---------------------------------------------------------------------------
    Since 1989, States have continued to strengthen their 
victims' rights provisions and services. Indeed, the majority 
acknowledges (in part IV(4)) that ``[t]here is a trend toward 
greater public involvement in the process, with the federal 
system and a number of States now providing notice to 
victims,'' and many of the anecdotes sprinkled throughout the 
majority report demonstrate that change toward better 
implementation of victims' rights is occurring in the States.
    Several studies support this assessment. 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.'' \34\ A 
1997 report by the National Criminal Justice Association 
concluded: ``It appears evident that the trend to expand the 
statutory rights of victims on the state level is continuing.'' 
\35\
---------------------------------------------------------------------------
    \34\ 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).
    \35\ Victims Rights Compliance Efforts: Experiences in Three States 
(1997). This publication is available on the Internet at .
---------------------------------------------------------------------------
    More recently, the Vera Institute of Justice completed a 
56-page report on the Effects of State Victims Rights 
Legislation on Local Criminal Justice Systems. The Vera 
Institute surveyed 396 prosecutors' offices across the country, 
in large and small jurisdictions, and found that by and large, 
victims' rights were being honored. It states: ``During the 
last decade, researchers who studied victim rights tended to be 
pessimistic about the extent to which statutes were followed in 
practice by local criminal justice officials. In the sites we 
visited, however, we are confident that, overall, people are 
making a serious effort to implement the state statutes.'' \36\
---------------------------------------------------------------------------
    \36\ Criminal Justice Newsletter, Vol. 32, No. 10 (June 2002) 
(quoting Vera Institute study; emphasis added). The Vera Institute 
report has not been released, apparently because the Justice 
Department, which funded the research, is unhappy with some of the 
findings.
---------------------------------------------------------------------------
    The majority relies (in part III) on two reports that found 
past protections for victims to be inadequate. The first is a 
1997 report by the National Victim Center, now known as the 
National Center for Victims of Crime (``NCVC'')--a member of 
the National Victims Constitutional Amendment Network and a 
leading advocate for a victims' rights amendment.\37\ The 
remarkable point about this report is that it provides so 
little support for a federal constitutional amendment. Instead, 
it suggests that it is money and additional State law 
provisions that are needed, not a federal constitutional 
amendment. The ``violations'' discussed in the study are 
failures of enforcement, not instances of defendants' rights 
trumping the rights of victims. When local officials were 
surveyed and asked for suggestions to improve treatment of 
victims of crime, the leading proposal was for increased 
funding.
---------------------------------------------------------------------------
    \37\ See Statutory and Constitutional Protection of Victims' 
Rights: Implementation and Impact on Crime Victims--Subreport: Crime 
Victim Responses Regarding Victims' Rights (Apr. 15, 1997).
---------------------------------------------------------------------------
    Another unsurprising conclusion of the NCVC report: States 
with stronger legal protections for victims provide stronger 
enforcement of victims' rights. It should be obvious to all 
that a State that does not mandate the provision of a 
particular right will not enforce that right. Moreover, as the 
NCVC researchers themselves acknowledged, ``it is reasonable to 
assume that States with stronger legal mandates for the 
provision of victims' rights tend to provide more funds for 
implementation than States with weaker mandates.'' \38\ Before 
we conclude that State laws are inadequate to protect victims, 
there should at least be such laws, as well as sustained 
efforts to fund, implement and enforce such laws. The NCVC 
report suggests that we should do more to encourage States to 
adopt and enforce victims' rights, not that we should amend the 
Constitution.
---------------------------------------------------------------------------
    \38\ Hearing of Mar. 24, 1999, at 160 (Dec. 1998 summary of NCVC 
report).
---------------------------------------------------------------------------
    The NCVC report also fails to provide a clear picture of 
the impact of State victims' rights laws because its 
methodology was so seriously flawed. Indeed, manifest flaws in 
the NCVC's methodology led the OVC to conclude that ``more 
research would be needed before any policy recommendations 
could be made based on the data.'' \39\
---------------------------------------------------------------------------
    \39\ 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). For a detailed critique of the NCVC report 
and its flawed methodology, see Robert P. Mosteller, The Unnecessary 
Victims' Rights Amendment, 1999 Utah L. Rev. 443, 447-449 n.13.
---------------------------------------------------------------------------
    The second report cited by the majority 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.'' \40\ Once again, however, 
the deficiencies identified in the report--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.
---------------------------------------------------------------------------
    \40\ 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. Certainly, there is no body of case law 
supporting such a conclusion. Before we take the fundamental 
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 cannot work, 
no matter how carefully crafted. We should have evidence that 
State statutes and constitutional provisions are not doing the 
job, and that they cannot. Further study, we believe, will show 
that solutions short of a federal constitutional amendment can 
provide effective and meaningful relief to crime victims.

4. Victims' Rights Do Not Need To Be ``Restored''

    The case for a victims' rights constitutional amendment is 
based in large part on a faulty premise. Without citing a 
single historical source, the majority report asserts (in part 
I):

          At the birth of this Republic, victims could 
        participate in the criminal justice process by 
        initiating their own private prosecutions. 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 
        reduced from that of the moving party in most criminal 
        prosecutions, to that of a party of interest in the 
        proceedings, to that of mere witness.

    Based upon this premise, we are told that S.J. Res. 1 would 
simply ``restore'' the various notice and participation rights 
that victims in the late 18th century inherently enjoyed by 
virtue of being parties to the litigation.
    History tells us otherwise. There was a place that had a 
system of private prosecutions in the late 18th century, and 
even well into the 19th century. But that place was England, 
not New England. Most American colonies followed the English 
model of private prosecutions in the 17th century but, as one 
distinguished scholar has written, that system ``proved even 
more poorly suited to the needs of the new society than to the 
older one.'' For one thing, victims abused the system by 
initiating prosecutions to exert pressure for financial 
reparation. These colonies shifted to a system of public 
prosecutions because they viewed the system of private 
prosecutions as ``inefficient, elitist, and sometimes 
vindictive.'' \41\ While private prosecutions turn justice into 
a variable proposition based on the wealth and power of the 
victim, public prosecutions give the chance for equal 
justice.\42\
---------------------------------------------------------------------------
    \41\ Abraham S. Goldstein, Prosecution: History of the Public 
Prosecutor, in 3 Encyclopedia of Crime and Justice 1286, 1286-1287 (S. 
Kadish ed. 1983).
    \42\ 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 justice based on wealth or social status or 
the communication skills of victims or their survivors. If this 
amendment were adopted, what would happen in cases where the victim 
either does not support--or is not effective at articulating--
prosecution strategy? What about cases where victims of the same 
offender disagree on sentencing or release issues? The principle that 
the prosecutor's duty is to do justice for all and not individual 
justice 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 prosecutor to pursue what is in the 
broader public interest.
---------------------------------------------------------------------------
    The clear trend during the colonial period and immediately 
after the Revolution was for the expansion of public 
prosecutions and, with it, the decline of private 
prosecutions.\43\ These developments, as well as the social, 
economic, and intellectual factors that led to these 
developments, were clear at the time of the framing and would 
have been appreciated by the Framers of the Constitution and 
Bill of Rights. In Virginia--home of some of the foremost 
architects of these documents--a deputy attorney general was 
appointed to each county in the early 1700s and ``had complete 
control over all prosecutions within his county'' by 1789.\44\ 
North Carolina established prosecuting attorneys for each 
county in 1738, ``to carry on all Proceedings in the [County] 
Courts for the Punishing of crimes.'' \45\ Connecticut adopted 
a system of county prosecutors in 1704--over 80 years before 
the Constitution was written.\46\ In other colonies, 
particularly in areas settled by the Dutch in the 17th century, 
public prosecution emerged earlier and more directly.\47\
---------------------------------------------------------------------------
    \43\ See, e.g., Goldstein, supra, at 1287 (``[B]y the time of the 
American Revolution, each colony had established some form of public 
prosecution and had organized it on a local basis. In many instances, a 
dual pattern was established within the same geographical area, by 
county attorneys for violations of state law and by town prosecutors 
for ordinance violations. This pattern was carried over into the states 
as they became part of the new nation.''); Juan Cardenas, The Crime 
Victim in the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol'y 357, 371 
(1986) (``[B]y the time of the American Revolution * * * local district 
attorneys were given a virtual monopoly over the power to prosecute. 
Crime victims were no longer allowed to manage and control the 
prosecution of their crimes.''); Joan E. Jacoby, The American 
Prosecutor: A Search for Identity 19 (1980) (``By the advent of the 
American Revolution, private prosecution had been virtually eliminated 
in the American colonies and had been replaced by [a] series of public 
officers who were charged with handling criminal matters.''); Randolph 
N. Jonakait, The Origins of the Confrontation Clause: An Alternative 
History, 27 Rutgers L.J. 77, 99 (1995) (``By the time of the 
Revolution, public prosecution in America was standard, and private 
prosecution, in effect, was gone.''); Jack M. Kress, ``Progress and 
Prosecution,'' in 423 The Annals of the American Academy of Political 
and Social Science 99, 103 (1976) (``[P]ublic prosecution was firmly 
established as the American system by the time the Judiciary Act of 
1789 created United States district attorneys to prosecute federal 
crimes.''); Robert L. Misner, ``Recasting Prosecutorial Discretion,'' 
86 J. Crim. L. & Criminology 717, 729 (1996) (``By the outbreak of the 
Revolution, private prosecution was replaced by public prosecution 
through county officials.* * *'').
    \44\ Cardenas, supra, at 370.
    \45\ Paul M. McCain, The County Court in North Carolina before 
1750, at 18-19, 33 (1954).
    \46\ Goldstein, supra, at 1287.
    \47\ Id.
---------------------------------------------------------------------------
    Indeed, so established were public prosecutors at the 
inception of the new Federal Republic that they were, without 
debate, granted exclusive control over prosecutions in federal 
courts. In the Judiciary Act of 1789--enacted the same year the 
Constitution was ratified--the First Congress created local 
U.S. district attorneys offices, appointed by the President, 
and granted them plenary power over all federal crimes 
occurring in their jurisdictions.\48\ And when, also in 1789, 
the First Congress approved the Bill of Rights and transmitted 
it to the State legislatures for ratification, it did so 
without establishing special rights for victims of crimes 
prosecuted in the federal system--then the only criminal 
justice system to which the Bill of Rights was directed.\49\
---------------------------------------------------------------------------
    \48\ Jonakait, supra, at 99 & n.107; Goldstein, supra, at 1287.
    \49\ The Framers never intended the Bill of Rights to be concerned 
with the State criminal justice systems; rather, they conceived the 
Bill of Rights as a means of protecting Americans against the new 
federal government. The Bill of Rights did not apply as against State 
action until after ratification of the 14th amendment in 1868, and the 
subsequent incorporation of many of the protections afforded by the 
Bill of Rights into the 14th amendment's due process clause.
---------------------------------------------------------------------------
    In sum, the proposed constitutional amendment cannot be 
justified as ``restoring'' victims rights enjoyed in the late 
18th century. Public prosecution was the rule, not the 
exception, by the time that Mr. Madison and Mr. Hamilton and 
all the other Framers of our Constitution got together in 
Philadelphia in 1787 to draft our nation's founding charter. If 
the Bill of Rights, which was written a few years later, 
provides no special rights for crime victims, it is not because 
the Framers thought they were protected by a system of private 
prosecutions. Rather, if we are to draw any lesson from 
history, it is that the Framers believed victims and defendants 
alike were best protected by the system of public prosecutions 
that was then, and remains, the American standard for achieving 
justice.

5. The Bill of Rights Does Not Need To Be ``Rebalanced''

    Proponents of a federal constitutional amendment for crime 
victims contend that it is necessary 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. The argument is wide of the mark, both in its 
conception of the criminal justice system, and in its notion of 
what warrants constitutional change.
    First, the paramount purpose of a criminal trial is to 
determine the guilt or innocence of the accused, not to make 
victims whole. As discussed above (in section (B)(4)), we have 
historically and proudly eschewed private criminal prosecutions 
based on our common sense of democracy. The interests of the 
victim are directly served by the right to bring a civil suit 
against the accused, by court-ordered restitution if the 
accused is convicted, and by victim compensation programs.
    Second, while rhetorically pleasing, the concept of 
``balance'' often makes little sense in the context of a 
criminal proceeding. It assumes that we can identify the 
``victim'' at the outset of every case, but this may not be 
possible. In some cases--as where the defendant claims that she 
acted in self-defense--identifying the ``victim'' is what the 
trial is all about.
    Third, 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, not to protect individuals 
from each other.\50\ When the government unleashes its 
prosecutorial power against an accused, the accused 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 could sacrifice a fair trial 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.
---------------------------------------------------------------------------
    \50\ 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, 
        Georgia.\51\
---------------------------------------------------------------------------
    \51\ 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) 
[hereinafter ``Hearing of Apr. 23, 1996'']. See also Bruce Fein, 
Deforming the Constitution, Wash. Times, July 6, 1998, at A14 (Crime 
victims ``command virtual universal sympathy, a fail-safe formula for 
legislative success'' and ``need no constitutional protection from 
political overreaching'').

    Similarly, Professor Lynne Henderson wrote the Committee in 
1999, ``Victims of crime are hardly an insular minority, nor 
are they the victims of prejudice and hostility. * * * Special 
treatment of victims under the constitution is not necessary to 
insure that their interests be preserved or recognized.\52\ She 
recently updated her statement, adding, ``No new reason exists 
to believe that victims of crime cannot adequately protect 
their interests through the democratic political process such 
that a constitutional amendment is necessary to protect them.'' 
\53\
---------------------------------------------------------------------------
    \52\ Hearing of Mar. 24, 1999, at 248.
    \53\ Letter from Lynne Henderson, Professor, Boyd School of Law, to 
Sen. Hatch, Chairman, and Sen. Leahy, Ranking Member, Senate Comm. on 
the Judiciary, Apr. 7, 2003.
    A recent story out of Lake County, Michigan, illustrates the 
political power of crime victims today. In September 2003, Lake County 
voters recalled a county prosecutor after a murder victim's family 
launched a campaign against him for orchestrating a plea bargain with 
the killer. The plea deal had resulted in a 23 to 50-year sentence for 
second-degree murder. The prosecutor, who had negotiated 105 guilty 
pleas from January 2001 through October 2002, said he was trying to 
avoid costly trials on a shoestring $200,000 annual budget. ``Michigan 
county votes to recall prosecutor; was criticized by victim's family 
for plea deal,'' Associated Press, Sept. 18, 2003.
---------------------------------------------------------------------------
    The Bill of Rights is not askew. We do not need to create a 
panoply of special rights for victims in order to set it 
straight.

6. There Is No Need for a ``One-Size-Fits-All'' Set of Victims' Rights

    Another common argument for the proposed constitutional 
amendment is that it offers the only way to fix the 
``patchwork'' of State victims' rights laws. It is not enough 
that every State already protects the rights of crime victims, 
whether by statute or by constitutional amendment, or both--
those protections should be made uniform nationwide.
    As a preliminary matter, there is some question whether 
S.J. Res. 1 would have the desired effect of promoting 
uniformity in the protection of victims' rights, given the 
majority's insistence that States would retain substantial 
authority to implement the amendment and define its key terms. 
Rather, as we discuss in section (D), infra, if the rights 
established by the amendment carry a different meaning in every 
State, the amendment could simply replace one ``patchwork'' of 
victim's rights with another.
    More fundamentally, the argument that we need to achieve 
uniformity in this area is unconvincing. It assumes that there 
is one and only one way to do this, and that only the federal 
government can discern the best approach, even though most of 
the experience has been in the States. We cannot accept this 
assumption; to the contrary, we believe that the States' 
continued experimentation in this area is constructive and 
valuable.\54\
---------------------------------------------------------------------------
    \54\ See section (D)(1), infra.
---------------------------------------------------------------------------
    We would agree that there are times when Congress must step 
in and ensure a uniform national floor with respect to a 
particular policy issue--the Civil War Amendments are good 
examples. If States in the 21st century were as unwilling to 
protect victims as some States were, in the 19th century, to 
end slavery and racial discrimination, we might agree on the 
need to set a national floor for victims' rights. But States 
are not unwilling to protect victims--far from it. To quote 
five Republican law professors who oppose S.J. Res. 1:

          In some rare cases, where the nation's stability 
        demands it, or where fundamental human rights are in 
        imminent jeopardy, the Constitution might need to be 
        amended to provide a national standard. That's why the 
        Civil War amendments, for instance, prohibit race 
        discrimination, and protect the freedom of speech and 
        other rights that we have found are vital for our 
        survival as a strong and decent nation. But though 
        there may be some faults in the way some states protect 
        certain victims' rights, there's nothing comparable to 
        the disaster and oppression that prompted those 
        Amendments. At most, there's honest and reasonable 
        disagreement between states on difficult questions 
        related to balancing the interests of victims, the 
        interests of criminal defendants, and the limited 
        resources of the state governments.\55\
---------------------------------------------------------------------------
    \55\ Letter from Republican Law Professors Regarding the Proposed 
Victim's Rights Constitutional Amendment, to Sen. Hatch, Chairman, and 
Sen. Leahy, Ranking Member, Senate Comm. on the Judiciary, July 11, 
2003.

    Even assuming that a ``one-size-fits-all'' approach to 
victims' rights is desirable or even necessary, that does not 
mean that we need to amend the Constitution. There are other 
ways to achieve uniformity. For example, Congress could simply 
pass spending power-based legislation, which conditioned money 
to the States on the States' implementing a uniform national 
standard of victim rights.\56\ As the Justice Department has 
acknowledged, ``such legislation would do away with one of the 
main concerns with statutory remedies, the need for 
uniformity.'' \57\
---------------------------------------------------------------------------
    \56\ See, e.g., United States v. American Library Assn., 123 S. Ct. 
2297, 2303 (2003) (``Congress has wide latitude to attach conditions to 
the receipt of federal assistance in order to further its policy 
objectives.''); South Dakota v. Dole, 483 U.S. 203, 206 (1987).
    \57\ Hearing of Apr. 8, 2003 (response of Viet Dinh, Assistant 
Attorney General, to follow-up question 2 by Sen. Leahy).
---------------------------------------------------------------------------

7. A Constitutional Amendment Is Unnecessary To Provide Victims With 
        Legal Standing

    Just as a constitutional amendment is unnecessary to 
provide uniformity, it is also unnecessary to provide standing. 
Indeed, statutes have long been the principal way in which 
legislators establish a new cause of action.
    As a preliminary matter, let us define our terms. What 
would it mean to provide victims with ``standing''? This is not 
a question of whether victims should be entitled to attend the 
trial, provide victim impact testimony, or receive 
restitution--of course they should be. The ``standing'' 
question is a procedural one, about whether victims' rights and 
the interests of an efficient and effective criminal justice 
system are best protected by allowing prosecutors to run the 
prosecution, or by bringing in teams of victims' lawyers to 
argue over how the case should be conducted.
    We are committed to giving victims real and enforceable 
rights. But we are not convinced that prosecutors are so 
incapable of protecting those rights, once we make them clear, 
that every victim needs to retain his or her own trial lawyer 
to raise claims and challenge rulings during the course of a 
criminal case. To the contrary, we believe that prosecutors 
have victims' interests at heart.\58\
---------------------------------------------------------------------------
    \58\ The majority (in part IV(4)) provides one example. Patricia 
Pollard testified in 1996 that after her assailant was released from 
prison without any notice to her--in violation of her State's new 
constitutional amendment--the county attorney filed an action to stop 
the release. As a result, the parole board was ordered to hold a new 
hearing and, after hearing from Ms. Pollard, it reversed its prior 
decision. See Hearing of Apr. 23, 1996, at 31-32.
---------------------------------------------------------------------------
    Assuming that we want to provide standing for victims and 
their lawyers to make legal arguments as well as to testify in 
criminal cases, we do not need a constitutional amendment to 
achieve that. Indeed, the statutory alternative to S.J. Res. 1 
that Senators Leahy and Kennedy offered at the Committee's 
September 4 markup--the Crime Victims Assistance Act of 2003--
offers one model for giving victims standing. Specifically, it 
would amend the Victim Rights Clarification Act of 1997 to 
authorize prosecutors and victims to assert the victim's right 
to attend and observe the trial.
    Constitutional amendment proponents have cited a Tenth 
Circuit decision in the Oklahoma City bombing case for the 
proposition that ``under Article III of the Constitution of the 
United States * * * victims have no standing to assert [their 
rights]. Only a constitutional amendment can give themthat 
right.'' \59\ In fact, the Tenth Circuit did not hold that no statute 
can confer standing on victims; rather, after noting that standing may 
derive from various sources, including statutes, the Court held that 
the only statute cited by the victims, which explicitly denies any 
private cause of action, did not confer standing on victims.\60\ 
Nothing in the Tenth Circuit decision--and more importantly, nothing in 
the U.S. Constitution--prevents us from giving victims a statutory 
cause of action to assert all sort of rights. We could do it today.
---------------------------------------------------------------------------
    \59\ Transcript of Markup, Senate Comm. on the Judiciary, July 24, 
2003, at 44 (Sen. Feinstein).
    \60\ United States v. McVeigh, 106 F.3d 325, 334-335 (10th Cir. 
1997) (discussing the Victims' Rights and Restitution Act of 1990). The 
Court also rejected the victims' argument that the first amendment 
right of public access to criminal proceedings provided a 
constitutional basis for standing. Id. at 335-336.
---------------------------------------------------------------------------

     C. THE PROPOSED AMENDMENT COULD HAVE DANGEROUS AND UNCERTAIN 
             CONSEQUENCES FOR THE ADMINISTRATION OF JUSTICE

    While the proposed amendment is at best unnecessary, at 
worst, it could help criminals more than it helps victims and 
result in the conviction of some who are innocent and wrongly 
accused. Patricia Perry, the mother of a police officer lost 
while rescuing victims of the World Trade Center attacks on 
September 11, 2001, testified:

          [Our family] believes that this constitutional 
        amendment threatens the system of checks and balances 
        in the current justice system and that it could 
        actually compromise the ability of prosecutors to 
        obtain the convictions of those responsible for the 
        carnage on 9-11. We believe that to the extent that 
        this amendment is effective, it is unworkable and even 
        dangerous. And to the extent that it does nothing, it 
        is an empty promise among many for victims that need 
        real resources and real support.\61\
---------------------------------------------------------------------------
    \61\ Hearing of Apr. 8, 2003 (statement of Patricia Perry).

We share the Perry family's concerns. Passage of S.J. Res. 1 
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. 
It could also have serious consequences beyond the criminal 
justice system, both in civil and military proceedings.

1. The Amendment Could Impair the Ability of Prosecutors To Convict 
        Violent Criminals and Disrupt the War on Terror

    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.

                  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 (``NDAA'') cautioned in 
1998, 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.\62\ 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 
sentence.
---------------------------------------------------------------------------
    \62\ Letter from William L. Murphy, President, NDAA, to Sen. Leahy, 
Ranking Member, Senate Comm. on the Judiciary, May 27, 1998. In a more 
recent letter to the Committee, the former NDAA President asks, ``Will 
the Amendment be used to call into question the judgment of prosecutors 
about how a case is to be handled--to the point of interference and 
impedance?'' Letter from William L. Murphy, District Attorney, Richmond 
County, New York, to Sen. Hatch, Chairman, Senate Comm. on the 
Judiciary, Apr. 3, 2003.
---------------------------------------------------------------------------
    Prosecutorial discretion over plea bargaining is 
particularly at risk if S.J. Res. 1 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; may need to protect the identity of an 
informant-witness; may think that the evidence against the 
defendant will not convince a jury beyond a reasonable doubt; 
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 basic 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.\63\ 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.\64\
---------------------------------------------------------------------------
    \63\ Robert Fichenberg, The Controversial Victims' Rights 
Amendment, 30-Oct Prosecutor 38 (1996).
    \64\ 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 six years in prison. The victim's family opposed 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 tomake bad choices, or even to disregard their 
professional and ethical obligations, rather than risk violating the 
constitutional rights that this amendment would create for victims.
    The Committee heard the thoughtful testimony of Beth 
Wilkinson, a lead prosecutor in the Oklahoma City bombing case. 
With insight and compassion, Ms. Wilkinson shared with us her 
experience in dealing with the victims and family members who 
suffered losses as a result of that tragedy. She came to 
understand firsthand their grief and frustration during the two 
and a half years she worked as part of the federal government 
team that successfully prosecuted Timothy McVeigh and Terry 
Nichols. She is a true victims' advocate. And she opposes a 
victims' rights amendment.
    Ms. Wilkinson cautioned this Committee that a 
constitutional amendment has the dangerous potential to 
undermine prosecutorial strategy in criminal cases. She 
described how the prosecution of McVeigh and Nichols could have 
been substantially impaired if a constitutional amendment had 
been in place:

         [J]ust months after the bombing, the prosecution team, 
        which was responsible for determining the most 
        effective strategy for convicting those most culpable, 
        McVeigh and Nichols, determined that it would be in the 
        best interest of the case to accept a guilty plea from 
        Michael Fortier. While not a participant in the 
        conspiracy to bomb the building and the people inside 
        of it, Fortier knew of McVeigh and Nichols' plans and 
        he failed to prevent the bombing.
         If the victims had a constitutional right to address 
        the Court at the time of the plea, I have no doubt that 
        many would have vigorously and emotionally opposed any 
        plea bargain between the Government and Fortier. From 
        their perspective, their opposition would have been 
        reasonable. Due to the secrecy rules of the grand jury, 
        we could not explain to the victims why Fortier's plea 
        and cooperation was important to the prosecution of 
        Timothy McVeigh and Terry Nichols.
         What if the judge had rejected the plea based on the 
        victims' opposition or at least forced the government 
        to detail why Fortier's testimony was essential to the 
        Government's case? Timothy McVeigh's trial could have 
        turned out differently. Significant prosecutorial 
        resources would have been diverted from the 
        investigation and prosecution of McVeigh and Nichols to 
        pursue the case against Fortier and we would have 
        risked losing the evidence against McVeigh and Nichols 
        that only Fortier could have provided. In the end, the 
        victims would have been much more disappointed if 
        Timothy McVeigh had been acquitted than they were when 
        Michael Fortier was permitted to plead guilty.\65\
---------------------------------------------------------------------------
    \65\ Hearing of Mar. 24, 1999, at 21. See also Beth A. Wilkinson, 
Victims' Rights: A Better Way: The proposed constitutional amendment 
could have let McVeigh go free, Washington Post (Aug. 6, 1999).

Ms. Wilkinson further described how another major terrorism 
case that she handled could have been put at risk if the 
proposed constitutional amendment were adopted. That case 
involved a Colombian narco-terrorist who sabotaged a civilian 
airliner which exploded over Bogota, Colombia, in 1989, killing 
more than 100 people.\66\
---------------------------------------------------------------------------
    \66\ Hearing of Mar. 24, 1999, at 97.
---------------------------------------------------------------------------
    James Orenstein, a former federal prosecutor with extensive 
experience in organized crime cases, echoed Ms. Wilkinson's 
concerns. He gave the following illustration of how the 
amendment could make it more difficult for prosecutors to do 
their jobs when they need secrecy at some stage of a proceeding 
in order to ensure the safety of a witness and the integrity of 
an investigation:

         When a mob soldier decides to cooperate with the 
        government, he typically pleads guilty as part of his 
        agreement, and in some cases then goes back to his 
        criminal colleagues to collect information for the 
        government. If his [cooperation] is revealed, he is 
        obviously placed in great personal danger, and the 
        government's efforts to fight organized crime are 
        compromised. Under this Amendment, such disclosures 
        could easily come from crime victims who are more 
        sympathetic to the criminals than the government.\67\
---------------------------------------------------------------------------
    \67\ Hearing of Apr. 8, 2003 (statement of James Orenstein). The 
majority assumes (in part V) that the need for secrecy in certain 
proceedings, as when a mob soldier pleads guilty pursuant to a 
cooperation agreement, is readily accommodated by closing the 
courtroom, thereby rendering such proceedings non-public and not 
subject to the proposed amendment. But, in fact, prosecutors rarely 
seek such closure due to the high barriers erected by the first and 
sixth amendments. Id. See also 28 C.F.R. Sec. 50.9 (``Because of the 
vital public interest in open judicial proceedings, the Government has 
a general overriding affirmative duty to oppose their closure. There 
is, moreover, a strong presumption against closing proceedings or 
portions thereof, and the Department of Justice foresees very few cases 
in which closure would be warranted.''). The majority also suggests (in 
part V) that a State may decide that the victim's right to be heard at 
a public plea proceeding does not attach until sentencing, if the court 
can still reject the plea at that time. But even if the amendment could 
be read to allow such a practice--which we doubt--the problem would 
remain, given the victim's separate and independent right not to be 
excluded from the plea proceeding.

    The rights of victims must be recognized and respected 
throughout the criminal process, but the victim's most 
important right--the right to the fair and just conviction of 
the guilty--must remain paramount. This right is far too 
important to jeopardize by adopting this unnecessary proposal 
to amend the Constitution. We must not create entitlements for 
victims that will tie prosecutors' hands and cripple law 
enforcement.
    There is no doubt that prosecutors would feel personally 
constrained by the proposed amendment. The express prohibition 
on claims for damages proposed in section 3 of S.J. Res. 1 only 
increases the likelihood that courts would find other ways to 
vindicate its newly-minted rights. In 1997, the United States 
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 
anyperson of any rights secured or protected under the federal 
Constitution.\68\ 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.
---------------------------------------------------------------------------
    \68\ United States v. Lanier, 520 U.S. 259 (1997).
---------------------------------------------------------------------------
            Other adverse consequences
    Creating an absolute right for crime victims to attend 
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.
    During Committee consideration of S.J. Res. 1 on September 
4, Senator Durbin proposed to limit the victim's right to 
attend proceedings when ``the victim is to testify and the 
court determines that the victim's testimony would be 
materially affected if the victim hears other testimony at 
trial.'' A lead sponsor of S.J. Res. 1 assured the Committee 
that the right to attend proceedings ``is not an absolute 
right,'' \69\ and the Committee rejected the proposal by a 7-
to-10 vote. Thereafter, however, the majority report (in part 
IV(3)) confirmed that S.J. Res. 1 ``unequivocally recognized'' 
the victim's right to attend the trial. In so doing, the 
majority characterized the ``materially affected'' limitation 
as ``inadequate,'' while dismissing as ``implausible'' the very 
idea that a victim would ever modify her testimony to comport 
with that of earlier witnesses.
---------------------------------------------------------------------------
    \69\ Transcript of Markup, Senate Comm. on the Judiciary, Sept. 4, 
2003, at 56 (Sen. Kyl; ``It is not an absolute right, and we have 
discussed before the ability of the judge to exclude witnesses or 
victims under certain circumstances'').
---------------------------------------------------------------------------
    If the tailoring of testimony is so ``implausible,'' then 
we are at a loss to explain the sequestration rules that are in 
effect in every jurisdiction in the country. The commentary to 
the federal sequestration rule, Fed. R. Evid. 615, explains 
that ``[t]he efficacy of excluding or sequestering witnesses 
has long been recognized as a means of discouraging and 
exposing fabrication, inaccuracy, and collusion.'' Indeed, 
witness sequestration has been described as `` `one of the 
greatest engines that the skill of man has ever invented for 
the detection of liars in a court of justice.' '' \70\ Just 
three years ago, the Supreme Court found it ``natural and 
irresistible''--and permissible--for a jury to infer that a 
defendant tailored his testimony from the fact that he heard 
the testimony of all those who preceded him.\71\
---------------------------------------------------------------------------
    \70\ Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628-29 (4th 
Cir.1996) (quoting 6 John H. Wigmore, Wigmore On Evidence Sec. 1838, at 
463 (James H. Chadbourn ed., 1976). The same court observed that the 
practice of sequestering witnesses has been recognized since at least 
biblical times. The Apocrypha relates how Daniel vindicated Susanna of 
adultery by sequestering the two elders who had accused her and asking 
each of them under which tree her alleged adulterous act took place. 
When they gave different answers, they were convicted of falsely 
testifying. Id. at 628.
    \71\ Portuondo v. Agard, 529 U.S. 61, 67 (2000).
---------------------------------------------------------------------------
    Apart from the obvious fairness concerns implicated by a 
procedure that 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.
    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 close the courtroom for certain 
proceedings. This could compromise courtroom closure laws 
designed to protect child witnesses.\72\ Similarly, it could 
cause disruption in the context of juvenile justice 
proceedings, which are often closed to the public.
---------------------------------------------------------------------------
    \72\ See, e.g., 18 U.S.C. Sec. 3509(e).
---------------------------------------------------------------------------
    Finally, S.J. Res. 1's creation (in section 2) of a 
victim's right to ``adjudicative decisions that duly consider 
the victims' * * * interest in avoiding unreasonable delay'' 
raises another set of concerns for prosecutors. The majority 
report ignores the fact that defendants are not the only 
parties who seek continuances in criminal cases. Prosecutors, 
too, often seek additional time to prepare for trial. The 
proposed constitutional amendment would appear to give victims 
standing to seek an ``adjudicative decision'' on the timing of 
trial, opening the door to victim demands for the immediate 
commencement of court proceedings. But forcing prosecutors to 
try cases before they are fully prepared plays into the hands 
of the defense and could result in cases being dropped or lost.
            Military Commissions
    We have discussed how the proposed amendment could impair 
law enforcement and make it more difficult for prosecutors to 
convict criminals. The damage would not stop there, however, 
since nothing in the amendment prevents its application beyond 
the criminal justice system, both to civil proceedings in 
federal and State court (discussed section (E)(3), infra) and 
to proceedings held by the U.S. military.
    The legislative history of this proposal suggests that it 
is intended to apply to military proceedings. While previous 
versions specified that the new constitutional rights would 
apply in military proceedings ``to the extent that Congress may 
provide by law,'' \73\ the current version contains no such 
jurisdictional language. Accordingly, the rights it establishes 
for ``victims of violent crimes'' would presumptively be held 
by all such victims throughout the United States, regardless of 
where the proceedings against those accused of victimizing them 
may be held. That would mean, at a minimum, military courts 
martial, and could also extend to the less traditional tribunal 
known as the military commission. If so, the amendment could 
impact substantially on any efforts by this or any other 
Administration to use military commissions to try suspected 
terrorists.
---------------------------------------------------------------------------
    \73\ S.J. Res. 3, 106th Cong., Sec. 5 (1999); S.J. Res. 44, 105th 
Cong., Sec. 5 (1998).
---------------------------------------------------------------------------
    Two months after the devastating attacks of September 11, 
2001, President Bush signed a military order authorizing the 
use of military commissions to try suspected terrorists.\74\ On 
March 21, 2002, the Department of Defense issued an order 
prescribing the procedures for such trials.\75\ The order 
plainly states that, except in limited circumstances 
implicating national security, ``Proceedings should be open to 
the maximum extent practicable,'' and ``may include * * * 
attendance by the public and accredited press.'' \76\
---------------------------------------------------------------------------
    \74\ Military Order of November 13, 2001, ``Detention, Treatment, 
and Trial of Certain Non-Citizens in the War Against Terrorism,'' 66 
F.R. 57833 (Nov. 16, 2001).
    \75\ U.S. Dep't of Defense, Military Commissions Order No. 1, 
Procedures for Trials by Military Commissions of Certain Non-United 
States Citizens in the War Against Terrorism (Mar. 21, 2002).
    \76\ Id. Sec. 6(B)(3). Even before these procedures issued, the 
President's counsel announced that ``Trials before military commissions 
will be as open as possible, consistent with the urgent needs of 
national security.'' Gonzalez, ``Martial Justice, Full and Fair,'' New 
York Times, Nov. 30, 2001.
---------------------------------------------------------------------------
    Imagine a trial by military commission post-victims' rights 
amendment. With respect to any open proceedings, victims would 
presumably enjoy all the rights established in section 2, 
including the right to reasonable and timely notice, the right 
not to be excluded, and the right reasonably to be heard. With 
respect to any proceedings that may be closed for national 
security reasons, victims could still enjoy the right to 
``adjudicative decisions that duly consider the victim's 
safety, interest in avoiding unreasonable delay, and just and 
timely claims to restitution.'' \77\ Either way, the amendment 
could undermine one of the most cited advantages of military 
commissions over civilian trials--the ability to dispense 
justice swiftly.
---------------------------------------------------------------------------
    \77\ Because the ``adjudicative decisions'' clause lacks the 
``public proceeding'' limitation that qualifies other parts of section 
2, it arguably applies to decisions made at both public and non-public 
proceedings. See section (E)(4), infra.
---------------------------------------------------------------------------
    For example, suppose that the defendant being tried by 
military commission is charged in connection with the September 
11 attacks. Must the military notify the thousands of victims 
and families of victims of every open proceeding, and provide 
them an opportunity to be heard? Could victims challenge a 
decision by the military to hold proceedings at a remote 
location outside the continental United States, such as the 
naval base at Guantanamo Bay, Cuba, on the ground that it 
effectively precludes their attendance and participation? Would 
there be a right of appeal, and if so, would it be to an 
Article III court (making military commissions subject to the 
kind of civilian court review that the President has obviously 
taken pains to avoid) or to whatever body may have been 
designated to hear appeals by the accused? Both the exercise of 
victims' rights and the inevitable litigation associated with 
their assertion would substantially increase case processing 
times in these highly sensitive cases.

2. The Amendment Could Impose Tremendous New Costs on the System

    The proposed constitutional amendment 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 
involving the crime.'' As the majority report confirms (in part 
V), the amendment's broadly-worded mandate covers court 
proceedings of all types, even the most insignificant 
scheduling conferences, of which there may be dozens in the 
course of a single case. 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 Department of Justice once 
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.\78\
---------------------------------------------------------------------------
    \78\ 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. 131-132 (Apr. 16, 1997) [hereinafter ``Hearing 
of Apr. 16, 1997''].
---------------------------------------------------------------------------
    The Congressional Budget Office (``CBO'') estimates that 
ratification of S.J. Res. 1 would not result in significant 
costs for the federal court system because ``the amendment 
would apply to crimes of violence, which are rarely prosecuted 
at the federal level.'' In fact, thousands of violent offenses 
are prosecuted federally each year, and the number continues to 
rise with every indiscriminate passage of new federal crimes 
that duplicate existing State crimes. More importantly, the 
CBO's estimate did not include any of the costs that would be 
borne by State and local law enforcement and prosecutors, State 
and local court systems, and the providers of legal services to 
indigent defendants. Noting these costs, former Attorney 
General Janet Reno urged the Committee in 1997 to ``reach out 
to all interested parties to explore the serious resource 
implications of a constitutional amendment.'' \79\ Six years 
later, the Committee still has not done this.
---------------------------------------------------------------------------
    \79\ Id. at 132.
---------------------------------------------------------------------------
    The potential costs of S.J. Res. 1's constitutionally-
mandated notice requirements alone are staggering, especially 
when--as the majority acknowledges (in part V)--``[i]n 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.'' And 
that is without regard to the many hidden costs that may flow 
from the vague promises that this amendment proposes.
    Consider as an example the right of crime victims 
``reasonably to be heard at public * * * plea * * * 
proceedings.'' The vast majority of all criminal cases are now 
resolved by plea bargaining. Although it is unclear how much 
weight judges 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. Most significantly, the right to be heard 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. 1 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 (in part V) 
purports to find a solution in the amendment's prohibition on 
claims for damages. Section 3 of the amendment states in part,

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

According to the majority report, this language ``prevents the 
possibility'' that courts might construe the amendment as 
requiring the appointment of counsel at State expense to assist 
victims. We fail to see 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. This is especially so in light of the majority's 
acknowledgment (in part III) that ``every State is required 
under the sixth amendment * * * to provide legal counsel to 
indigent defendants'' and that victims are entitled to equal 
treatment.
    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. As James Orenstein, a former federal prosecutor, 
testified,

          [If] the current language of the Amendment creates a 
        right to be present in court proceedings involving the 
        crime, or at a minimum to be heard orally at some such 
        proceedings, prison administrators will be faced with 
        the Hobson's choice between cost- and labor-intensive 
        measures to afford incarcerated victims their 
        participatory rights and foregoing the prosecution of 
        offenses within prison walls. Either choice could 
        undermine orderly prison administration and the safety 
        of corrections officers.\80\
---------------------------------------------------------------------------
    \80\ Hearing of Apr. 8, 2003 (statement of James Orenstein).

The majority report contradicts itself on this point. It 
promises (in part V) 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.''
    Regardless, courts will pay little attention to the 
majority's commentary when interpreting the comparatively clear 
language of S.J. Res. 1. Under established principles of 
constitutional law, a court could easily 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 2 of the 
amendment.
    The amendment would also impose a costly, time-consuming 
drain on the nation's courts. As we discuss in section (E), 
infra, 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 
beyond estimation.
    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. And there would be less court time available for 
individual and business users of the courts, including crime 
victims.

3. The New Constitutional Rights for Victims Could Undermine Bedrock 
        Constitutional Protections Afforded to the Accused by the Bill 
        of Rights

    The Bill of Rights has safeguarded the rights of all 
Americans for more than 200 years. It has served us well. We 
should be very careful about creating new constitutional rights 
that may distort or endanger any existing constitutional 
rights, of the accused or of anyone else.
    During the markup of S.J. Res. 1, the Committee voted down 
an amendment proposed by Senator Durbin that stated: ``Nothing 
in this article shall be construed to deny or diminish the 
rights of the accused as guaranteed under this Constitution.'' 
This straightforward language would not give criminal 
defendants any new rights; it would simply ensure the 
preservation of essential constitutional rights that have 
protected Americans, albeit imperfectly, from unjust 
prosecution and false imprisonment for over 200 years. There is 
similar language in the victims' rights provisions of several 
state Constitutions, including those of Alabama, Florida, 
Indiana, Kansas, Mississippi, Ohio, Oregon, Virginia, and 
Wisconsin.
    Why the opposition to the Durbin amendment? Over the years, 
supporters of the proposed constitutional amendment have said 
that it would not affect the rights of criminal defendants.\81\ 
But if that is true, why the reluctance to say so, clearly, in 
the text of the amendment? Why take a chance that courts will 
read the victims' rights amendment, as the later in time, to 
trump any conflicting rights of the accused under the fifth, 
sixth, and eighth amendments? Why run the risk of eroding the 
right to a fair trial, and making it more likely that innocent 
people will be convicted?
---------------------------------------------------------------------------
    \81\ Most recently, at this year's markups of S.J. Res. 1, Senator 
Kyl offered several assurances in response to Senator Durbin's 
amendment. See, e.g., Transcript of Markup, Subcomm. on the 
Constitution, Civil Rights, and Property Rights of the Senate Comm. on 
the Judiciary, June 12, 2003, at 44 (``I recognize the legitimate issue 
raised, but defendants' rights are fully backed by a couple of 
centuries, in some cases, of case law. They are clearly well 
established in our jurisprudence and it seems to me that we are not 
about to lose those defendants' rights simply by the adoption of these 
victims' rights.''); Transcript of Markup, Senate Comm. on the 
Judiciary, July 31, 2003, at 43 (``So the language in [S.J. Res. 1] is 
simply a reaffirmation of those rights [of the defendant], and nobody 
can take those away from a defendant. The record should be absolutely 
clear * * * [T]here is ``no later in time'' kind of argument here.''); 
Transcript of Markup, Senate Comm. on the Judiciary, July 31, 2003, at 
46 (agreeing that ``administration of criminal justice'' language in 
section 2 would protect rights of the accused, even if those rights 
conflict with newly-created rights for victims).
---------------------------------------------------------------------------
    The answer appears to be that the proposed amendment will, 
in fact, affect existing constitutional rights, insofar as it 
invites courts to ``balance'' the rights of the accused with 
the new rights of crime victims. We find this notion troubling. 
If the point of the victims' rights amendment is to recalibrate 
the balance of liberty struck by the Framers in the 
Constitution, there is reason indeed to fear for the rights of 
criminal defendants.
    Even more troubling, the proposed amendment could be read 
to do more than ``balance'' rights: it could be read to 
establish the preeminence of victims' rights in all cases. 
Section 1 states that victims' rights may never be denied and 
may be restricted only under the limited circumstances ``as 
provided in this article.'' Section 2 provides the three 
exclusive grounds for restricting victims' rights: (1) ``a 
substantial interest in public safety''; (2) ``the 
administration of criminal justice''; and (3) ``compelling 
necessity.'' The constitutional rights of the accused do not 
fit comfortably into any of these categories. It is therefore 
unclear how a court could ``balance'' those rights with the new 
rights that are being established.
    The majority report (in part V) points to the precatory 
language in section 1 as calling for judicial balancing of 
rights. But section 1 does not, by its terms, say that victims' 
rights are to be balanced against the rights of the accused. 
Instead, it simply declares that those rights are compatible: 
``The rights of victims of violent crime, being capable of 
protection without denying the constitutional rights of those 
accused of victimizing them, are hereby established. * * *'' 
Nothing in this language suggests how courts are to resolve a 
conflict should one arise.
    Some proponents of S.J. Res. 1 have argued that nothing in 
the Constitution is an absolute and that, therefore, any 
conflicts between the constitutional rights of victims and 
defendants would inevitably be resolved through balancing. In 
fact, some constitutional rights are unquestionably absolute, 
including the rights of citizens not to be denied a vote on 
account of race (15th amendment) or gender (19th amendment). 
But more importantly, no existing constitutional provision 
identifies exclusive restrictions upon the rights being 
established. By using this novel formulation, S.J. Res. 1 would 
appear to establish a novel set of rights that are indeed 
absolute, except insofar as they are expressly limited.
    Conflicts between the victims' rights established by S.J. 
Res. 1 and the protections accorded defendants by the Bill of 
Rights likely would be infrequent, but they could occur. 
Indeed, as currently drafted, S.J. Res. 1 practically invites 
conflict in several important areas.

            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 or the facts have 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 she 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 her 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.

            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--the majority report (in part IV(3)) confirms the 
intention of giving victims an ``unequivocal'' right to attend 
proceedings. 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 
imposed.
    Accuracy and fairness concerns may arise, as we have 
already discussed (in section (C)(1)), 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. 
Indeed, by making the right of victims to be present very difficult, if 
not impossible, to forfeit, this amendment may unintentionally 
encourage disruptive displays by victims.\82\ Whether done purposefully 
or, more likely, unintentionally, a victim exhibiting such behavior may 
unfairly prejudice the defendant.
---------------------------------------------------------------------------
    \82\ 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, 1703-1704 (1997).
---------------------------------------------------------------------------
    Proponents of S.J. Res. 1 dismiss such concerns out-of-
hand. The majority report declares (in part V) that crime 
victims would have ``no right'' to engage in either disruptive 
behavior or excessive displays of emotion. But it is not at all 
clear how courts could control such conduct if victims have an 
unequivocal constitutional right not to be excluded. In sum, 
either the amendment will amount to nothing in this context 
that could not be achieved by statute or rule, or it may 
provide too much, and undercut the courts' ability to protect 
the fairness of criminal trials.

            A victim's right to be heard could undermine the accused's 
                    right to due process
    The proposed amendment gives victims a constitutional right 
``reasonably to be heard'' at many stages in the criminal 
proceeding, including guilty pleas and sentencing. While laws 
providing for reasonable victim input generally improve the 
criminal justice system, inserting this ill-defined right into 
the Constitution risks the denial of defendants' due process 
rights. That risk is heightened in capital cases where, unlike 
most other cases, jurors are asked to determine the sentence 
and emotions can easily overcome reason.
    This point was poignantly made by Bud Welch, who lost his 
daughter in the Oklahoma City bombing. Mr. Welch wrote to the 
Committee that after the bombing, he was so angry that he 
``wanted McVeigh and Nichols killed without a trial'':

          I consider that I was in a state of temporary 
        insanity immediately after [my daughter's] death. It is 
        because I was so crazy with grief that I oppose the 
        Victims' Rights Amendment. It would give victims the 
        right to give input in the criminal case even before a 
        conviction. I do not think crime victims should have a 
        constitutional right to give input into bail decisions 
        and plea agreements. I think crime victims are too 
        emotionally involved in the case and will not make the 
        best decisions about how to handle the case.\83\
---------------------------------------------------------------------------
    \83\ Statement of Bud Welch, submitted to Senate Comm. on the 
Judiciary, Hearing of Apr. 8, 2003.

    Another bereft parent, Patricia Perry, testified, ``Victims 
and family members are not dispassionate. We are angry, 
depressed, and mourning. As families, we have a torrent of 
emotions that are not useful in preparing a legal case. We 
usually lack expertise and have a desire for vengeance that we 
claim is the need for justice.'' \84\
---------------------------------------------------------------------------
    \84\ Hearing of Apr. 8, 2003 (statement of Patricia Perry).
---------------------------------------------------------------------------
    We share Mr. Welch's and Mrs. Perry's concern that 
injecting too much emotion into criminal proceedings will 
increase the chance of unfair and wrongful results, in 
violation of a defendant's right to due process. Such problems 
are especially troubling in capital cases, where the emotional 
impact of the crime is at its zenith and the consequences of 
injustice are intolerable. That is why it is particularly 
important to preserve the Constitution's careful balance in 
such cases between giving victims their voice and protecting 
the defendant's right to due process.
    The Supreme Court recognized over a decade ago, in Payne v. 
Tennessee, that rules prohibiting victims from telling 
sentencing jurors about the impact a murder has had on their 
lives--and thereby skewing the information available to a 
sentencing jury about the defendant's blameworthiness--are ``an 
affront to the civilized members of the human race.'' \85\ But 
as the Court recognized, there is an important difference 
between allowing sentencing juries to learn about the full 
impact of a defendant's crime and allowing victims to make a 
plea for a certain sentencing result, which carries the very 
risks of injustice that Mr. Welch and Mrs. Perry so eloquently 
described. For that reason, the Supreme Court interpreted the 
Constitution to allow victim impact statements in capital 
sentencing hearings, but to prohibit victims--or any other 
witnesses--from recommending a sentence.\86\
---------------------------------------------------------------------------
    \85\ 501 U.S. 808, 826 (1991).
    \86\ Id. at 830, n.2 (preserving prior holding that admission of a 
murder victim's family members' characterizations and opinions about 
the crime, the defendant, and the appropriate sentence violates the 
eighth amendment.)
---------------------------------------------------------------------------
    The proposed amendment could undo this delicate balance and 
erode capital defendants' due process rights. The majority 
report (in part V) suggests in passing that S.J. Res. 1 would 
``enshrine and perhaps extend the Supreme Court's decision in 
Payne v. Tennessee.'' But there is no need to ``enshrine'' the 
decision--the Supreme Court has already done so. And 
``extending'' it can only be a euphemism for undoing it--
because the only kind of victim input that Payne forbade was 
the kind that would violate a defendant's due process rights. 
Thus, if the proposed amendment were read to give victims the 
right to recommend for or against imposition of a death 
sentence, \87\ there would be a conflict between the rights of 
the victim and the accused, despite the assurance to the 
contrary in section 1.\88\
---------------------------------------------------------------------------
    \87\ The majority provides no guidance as to how courts could 
implement a victim's right to recommend a sentence to a capital case 
jury. What would the judge tell the jurors about how to weigh such 
pleas? Normally, judges instruct jurors that they must make their 
decisions ``without fear, favor, or sympathy'' to any person--but the 
precise point of allowing victims to make such recommendations would be 
to permit them to try to persuade jurors to act on the basis of 
sympathy. Judges also tell capital jurors that their sentencing 
decisions should reflect the community's moral judgment. How could they 
reconcile that instruction with a rule allowing victims (but presumably 
not other witnesses) to recommend sentences, when, as Mr. Welsh and 
Mrs. Perry have shown, it is unreasonable to expect that victims will 
discard their personal interests and reflect the dispassionate will of 
the community in their recommendations?
    \88\ See generally Hearing of Apr. 8, 2003 (response of James 
Orenstein to follow-up question 5 by Sen. Leahy).
---------------------------------------------------------------------------

            A victim's right to expedite trial proceedings could 
                    undermine the accused's sixth amendment rights
    The proposed amendment gives victims of violent crimes a 
right to ``adjudicative decisions that duly consider the 
victim's * * * interest in avoiding 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 
ability to receive a fair trial.
    The majority report (in part IV(6)) is characteristically 
muddled on this point. On the one hand, it asserts that ``the 
interests of a crime victim in a trial free from unreasonable 
delay must be protected.'' On the other hand, it assures us 
that, ``Of course, a victim's right to consideration of his or 
her interest to avoid unreasonable delay will not overcome a 
criminal defendant's due process right to a reasonable 
opportunity to prepare a defense.'' Is rights language proposed 
to be added to the Constitution only to be reduced to hortatory 
sentiment?
            Constitutionalizing victims' rights raises equal protection 
                    concerns
    We should consider the question of equal protection and 
equality of treatment of our defendants. During a hearing on 
the amendment in the 105th Congress, Representative Robert C. 
(``Bobby'') Scott of Virginia asked what happens when a 
prosecutor routinely recommends a one-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? \89\ By 
the same token, should the amount of time that a defendant 
spends in jail turn on the effectiveness of the victim's 
attorney?
---------------------------------------------------------------------------
    \89\ Hearing of Apr. 16, 1997, at 34, 35.
---------------------------------------------------------------------------
    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 should be favored. Wealth 
should not determine whose case gets prosecuted, or how well. 
Crime victims themselves benefit from this system, as the 
majority report acknowledges (in part I). We should think long 
and hard before we accept the majority's invitation to create a 
system in which the dangers of private prosecutions might 
resurface.

            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. 1 
maintain that it would not, and was never intended to, 
denigrate the rights of the accused in any way. The problem 
with this position, however, is that it proves too much. For if 
it were always possible to accommodate the victim's interests 
without diminishing the constitutional rights of the accused in 
the same proceeding--a prospect that we 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 
        serves.\90\
---------------------------------------------------------------------------
    \90\ 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 ornaments that fail to define real rights or to give 
real remedies.

4. Passage of the Proposed Amendment Could Actually Hurt Victims

    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. Former Attorney General Janet Reno once stated, 
``the very best way that [we] * * * can serve victims of crime 
is to bring those responsible for crime to justice.'' \91\ The 
National District Attorneys Association has also observed that 
a federal victims' rights amendment ``cannot truly be of help 
to a victim if it, in any way, assists a criminal defendant in 
escaping justice.'' \92\ 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.
---------------------------------------------------------------------------
    \91\ Hearing of Apr. 16, 1997, at 42.
    \92\ Letter from William L. Murphy, President, NDAA., to Sen. 
Leahy, Ranking Member, Senate Comm. on the Judiciary, May 27, 1998.
---------------------------------------------------------------------------

      D. THE PROPOSED AMENDMENT INFRINGES UNDULY 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 the proposed constitutional 
amendment, point out that the overwhelming majority of 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. The federal 
government does not have the general police power. As the 
Supreme Court reminded us in United States v. Lopez, ``Under 
our federal system, the States possess primary authority for 
defining and enforcing the criminal law.'' \93\ The proposed 
amendment would dramatically alter this framework by locking 
States into an absolutist national pattern regarding the 
participation of victims in the criminal justice system.
---------------------------------------------------------------------------
    \93\ 514 U.S. 549, 561 n.3 (1995) (internal quotation marks 
omitted; emphasis added). 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.'')
---------------------------------------------------------------------------
    It has been suggested that this ``States'' rights'' 
argument is meant to mask resistance to victims' rights, just 
as similar arguments were made earlier in the century to mask 
resistance to the 19th amendment, giving women the right to 
vote. In fact, those of us who oppose S.J. Res. 1--including 
many of the largest victims' organizations in the country--are 
strong supporters of victims' rights; we differ with the 
majority only in that we believe the preferred way to protect 
those rights is by statute and not by constitutional 
amendment.\94\
---------------------------------------------------------------------------
    \94\ Beyond that, the current debate over S.J. Res. 1 is simply not 
comparable to the last century's debate over women's suffrage. In 1918, 
just before the 19th amendment was ratified, only 15 States gave women 
full suffrage. See Congressional Research Service, Women's Electoral 
Participation and Representation in Elective OffIce, RS20014, Jan. 4, 
1999, at 2, n. 4. This amounted to less than one-third of the 48 States 
that were members of the Union at that time. By contrast, as the 
majority acknowledges (in part II), every State in the Union has passed 
rights and protections for crime victims, and 33 have adopted victims' 
rights amendments to their State constitutions. The ``States' rights'' 
argument is therefore not, as it was in earlier times, a smokescreen 
masking the unwillingness of many legislators to protect a disfavored 
group--to the contrary, it is an affirmation that our colleagues in the 
States have already proved themselves willing and able to pass 
effective laws on behalf of the crime victims we all support.
---------------------------------------------------------------------------
    The majority report attempts to deflect the federalism 
concerns raised by S.J. Res. 1 by claiming (in part V) that 
``the States will retain their power to implement the 
amendment.'' The majority also asserts (in part V) that 
``Nothing removes from the States their plenary authority to 
enact definitional laws for purposes of their own criminal 
justice systems,'' noting specifically that State legislatures 
will define key terms such as ``victim'' and determine when the 
right to be heardattaches.\95\ If this interpretation were 
correct, it would undermine the majority's own rationale for the 
amendment, which is to repair the existing ``patchwork'' of victims'' 
protections and establish a uniform national baseline. That is, it 
would simply replace one patchwork with another.\96\
---------------------------------------------------------------------------
    \95\ Similarly, a leading advocate of S.J. Res. 1 has explained, 
``It is intended that both the word `victim' and the phrase `victim's 
lawful representative' will be the subject of statutory definition, by 
the State Legislatures and the Congress, within their respective 
jurisdictions. No single rule will govern these definition.'' Hearing 
of Apr. 8, 2003 (statement of Steve Twist; emphasis added).
    \96\ Robert P. Mosteller & H. Jefferson Powell, With Disdain for 
the Constitutional Craft: The Proposed Victims' Rights Amendment, 78 
N.C.L. Rev. 371, 378 (Jan. 2000).
---------------------------------------------------------------------------
    More likely, however, is that the majority's 
interpretation, while politically expedient, is legally 
untenable. For one thing, as we discuss in section (E)(8), 
infra, even Congress may be without authority to define the 
substance of the rights established by S.J. Res. 1. In 
addition, the notion that S.J. Res. 1 empowers States to pass 
implementing legislation is flatly inconsistent with the plain 
language of section 4: ``The Congress shall have power to 
enforce by appropriate legislation the provisions of this 
article.'' (emphasis added). Virtually identical language in 
earlier constitutional amendments has been read to vest 
enforcement authority exclusively in the Congress.
    In the case of S.J. Res. 1, moreover, the text is 
illuminated by the legislative history. Earlier drafts of the 
amendment expressly extended enforcement authority to the 
States.\97\ 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. 1 deprives 
States of authority to legislate in the area of victims' 
rights. Indeed, both Chairman Hatch and the States' Chief 
Justices have read the proposed amendment in precisely this 
way.\98\
---------------------------------------------------------------------------
    \97\ 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 the 105th 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.''
    \98\ See S.J. Res. 44--Proposing An Amendment to the Constitution 
of the United States to Protect the Rights of Crime Victims, S. Rep. 
No. 105-409, 105th Cong., 2d Sess. 44 (1998) (additional views of Sen. 
Hatch); Hearing of Mar. 24, 1999, at 252 (Letter from Conference of 
State Justices to Sen. Ashcroft, urging modification of proposed 
constitutional amendment that would allow State legislatures to 
implement it with respect to State proceedings).
---------------------------------------------------------------------------
    This is troubling in three regards. First, S.J. Res. 1 
would have an adverse effect on the many State and local 
governments that already are 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. Beyond 
this, S.J. Res. 1 threatens to cut back on the historic power 
of our State Governors to grant executive clemency.

1. The Amendment Would End Constructive Experimentation by the States

    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.'' \99\ 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.
---------------------------------------------------------------------------
    \99\ 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. Indeed, in the few years since the Committee 
first reported out a victims' rights amendment, three more 
States have amended their Constitutions to protect victims. The 
proposed amendment 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 
expertise.
    That is why the States' top jurists oppose it. The 
Conference of Chief Justices has expressed serious concerns 
with the federalism issues presented by the amendment:

          Preempting each State's existing laws in favor of a 
        broad Federal law will create additional complexities 
        and unpredictability for litigation in both State and 
        Federal courts for years to come. We believe that the 
        existing extensive State efforts provide a 
        significantly more prudent and flexible approach for 
        testing and refining the evolving legal concepts 
        concerning victims' rights.\100\
---------------------------------------------------------------------------
    \100\ Letter from Joseph Weisberger, Chief Justice, Supreme Court 
of Rhode Island, to Congressmen Charles Canady and Melvin Watt, Feb. 2, 
2000. The Conference recently reaffirmed this position in a letter 
dated June 26, 2003, from Chief Justice E. Norman Veasey to Sen. Biden.

    Five Republican law professors wrote the Committee to 
emphasize the benefits of our current State-based approach to 
---------------------------------------------------------------------------
protecting crime victims:

          [S]tate legislators can take advantage of the 
        experience of the other States: Laws that prove too 
        costly, too vague, or counterproductive can get 
        replaced. Laws that prove effective can be adopted in 
        other States. And as time goes on and new needs arise, 
        State legislatures can adapt to these needs. This 
        experimentation would be much harder if the matter were 
        given to the Federal courts.\101\
---------------------------------------------------------------------------
    \101\ Letter from Republican Law Professors Regarding the Proposed 
Victims' Rights Constitutional Amendment, supra.

    Former Senator Fred Thompson echoed these same concerns in 
---------------------------------------------------------------------------
1998, when he served on this Committee:

        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 
        Constitution.\102\
---------------------------------------------------------------------------
    \102\ S. Rep. No. 105-409, supra, at 48 (minority views of Sen. 
Thompson; emphasis added).

    The Pennsylvania Coalition Against Domestic Violence wrote 
---------------------------------------------------------------------------
in its letter opposing S.J. Res 1:

          Most [State constitutional amendment protecting 
        victims' rights] have passed only within the last 
        decade, yielding little opportunity to learn from the 
        implementation process. It is premature to move forward 
        on something as sweeping and long-lasting as a Federal 
        Constitutional amendment without taking the time to 
        learn from the remedies provided by State 
        constitutional victims' rights amendments.\103\
---------------------------------------------------------------------------
    \103\ Letter from Susan Kelly-Dreiss, Executive Director, 
Pennsylvania Coalition Against Domestic Violence, to Sen. Specter, Apr. 
7, 2003.

Similarly, the National Network to End Domestic Violence 
cautioned the Committee in 1999, ``Without benefiting from the 
State experience, we run the risk of harming victims.'' \104\
---------------------------------------------------------------------------
    \104\ Hearing of Mar. 24, 1999, at 233 (emphasis added). More 
recently, the National Network advised, ``we have learned the hard way 
in domestic violence cases that remedies need to be flexible and allow 
for innovative solutions. Every policy and practice that we have seen 
implemented at the State and local level has resulted in unintended 
consequences.'' Statement of Lynn Rosenthal, Executive Director, 
National Network to End Domestic Violence, submitted to the Senate 
Comm. on the Judiciary, Hearing of Apr. 8, 2003.
---------------------------------------------------------------------------
    The majority report urges us (in part III) to dispense with 
further experimentation on the ground that ``Each year of delay 
is a year in which countless victims are denied their rights.'' 
Of course, the swifter process to providing victims' rights is 
by statute, not by constitutional amendment. Years, even 
decades, could ensue before real change is seen by means of 
such a top-down path.
    Moreover, the process of amending the United States 
Constitution is not a sprint to a popular goal. It should be 
reserved for fundamental changes in that charter that are 
necessary to achieve goals unachievable by other means. The 
proponents of constitutional change must first establish that 
there is no alternative path to that goal by less drastic 
means. With the experimentation that is ongoing in the States, 
they have not come close.
    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 
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, Arkansas, and 
Louisiana, have specifically provided that the rule regarding 
exclusion of witnesses does not apply to victims.\105\ Other 
States have taken a hybrid approach, whereby the victim has the 
right to attend only after the victim has testified, as in 
Michigan, New Jersey, and Washington.\106\ 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 a victim in order to 
preserve the defendant's right to a fair trial. 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.
---------------------------------------------------------------------------
    \105\ Ala. Stat. Sec. 15-14-55; Ark. R. Evid. 616; La. Code Evid. 
Art. 615(B)(4).
    \106\ Mich. Comp. Laws Ann. Sec. 780.761(11); N.J. Const. Art. 1, 
para. 22; Wash. Rev. Code Ann. Sec. 7.69.030(11). Louisiana took this 
approach until 1999, when it amended its sequestration rule to follow 
the Alabama/Arkansas model.
---------------------------------------------------------------------------

2. The Amendment Would Impose an Unfunded Mandate on the States

    We have already discussed (in section (C)(2)) the 
potentially staggering costs that S.J. Res. 1 could impose on 
the 50 States. Congress has a responsibility to investigate 
these costs thoroughly and to explore the 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 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.

3. The Amendment Would Lead to Extensive Federal Court Supervision of 
        State Law Enforcement Operations

    Under S.J. Res. 1, a victim does not have the ability to 
sue for damages. A victim may, however, ask a Federal court for 
injunctive relief against State officials, and possibly a writ 
of mandamus. The resulting interference with State criminal 
proceedings would be unprecedented and ill-advised.
    Even more alarming is the specter of Federal class actions 
against noncomplying State authorities. When local prosecutors' 
offices fail, as some now are failing, to provide full notice 
for victims, the only effective 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 concern 
that the proposed amendment would lead to ``extensive Federal 
court surveillance of the day to day operations of State law 
enforcement operations,'' and could also result in victims 
seeking injunctive relief against State officials in Federal 
court.\107\
---------------------------------------------------------------------------
    \107\ Letter from Joseph Weisberger, Chief Justice, Supreme Court 
of Rhode Island, to Congressmen Charles Canady and Melvin Watt, Feb. 2, 
2000.
---------------------------------------------------------------------------
    Former Senator Fred Thompson characterized the proposal as 
``a dramatic arrogation of Federal power'' that would 
``effectively * * * amend the 10th amendment and carve away 
State sovereignty.'' \108\ 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.
---------------------------------------------------------------------------
    \108\ S. Rep. No. 105-409, supra, at 49 (minority views of Sen. 
Thompson).
---------------------------------------------------------------------------
    ``[F]ederalism was the unique contribution of the Framers 
to political science and political theory,'' \109\ and it has 
served this country well. 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, when every State 
is working hard to address the issue in ways that are best 
suited to its own citizens and its own criminal justice system.
---------------------------------------------------------------------------
    \109\ Lopez, 514 U.S. at 575 (Kennedy, J., concurring).
---------------------------------------------------------------------------

4. The Amendment Would Adversely Affect the Authority of Governors to 
        Grant Clemency

    At the request of the Administration, this year's version 
of the proposed constitutional amendment contains savings 
language, in section 4, that expressly reserves the President's 
power to grant reprieves or pardons to those convicted in the 
Federal system. Although the vast majority of defendants are 
convicted in the State systems, section 4 contains no similar 
language regarding the clemency power of State governors. 
Indeed, during the markup of S.J. Res. 1, the Committee 
expressly rejected a proposal by Senator Leahy to modify this 
section to read, ``Nothing in this article shall affect the 
authority of the President or a Governor to grant reprieves or 
pardons.''
    The majority argues (in part IV(4)) that Congress already 
has the power to ensure that victims are notified and given an 
opportunity to be heard before the President exercises his 
pardon power. If so, it is further evidence that the proposed 
constitutional amendment is unnecessary.
    However, because every word in a constitutional amendment 
is meaningful, we must assume that without the savings language 
in section 4 regarding the President's authority to grant 
pardons, S.J. Res. 1 would affect that power in some way. It 
follows that, without similar language, S.J. Res. 1 will affect 
the clemency authority of State Governors. In fact, by 
expressly preserving the President's authority and not the 
Governors', S.J. Res. 1 implicitly affirms that it is intended 
to affect the Governors' authority.
    Executive clemency is the historic remedy for preventing 
miscarriages of justice where the judicial process has failed. 
Chief Justice Rehnquist wrote in 1993:

          Clemency is deeply rooted in our Anglo-American 
        tradition of law, and is the historic remedy for 
        preventing miscarriages of justice when the criminal 
        justice system has been exhausted. * * * It is an 
        unalterable fact that our judicial system, like the 
        human beings who administer it, is fallible. But 
        history is replete with examples of wrongfully 
        convicted persons who have been pardoned in the wake of 
        after-discovered evidence establishing their innocence. 
        * * * Recent authority confirms that over the past 
        century clemency has been exercised frequently in 
        capital cases in which demonstrations of ``actual 
        innocence'' have been made.\110\
---------------------------------------------------------------------------
    \110\ Herrera v. Collins, 506 U.S. 390, 411-415 (1993).

    Restricting the governors' clemency power risks increasing 
the chance that a wrongfully convicted person will remain 
incarcerated or, much worse, be put to death. We should not 
take that risk unnecessarily. Moreover, basic principles of 
federalism dictate that we should not do so at allunless it is 
clear on the face of the amendment that this is our purpose, such that 
the States, when asked to ratify, understand the consequences with 
respect to their governors' historic power to grant clemency.

        E. 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. 1 is problematic.
    This is not for lack of trying. There have been some 64 
drafts of this proposed constitutional amendment, and they have 
differed substantially. Indeed, this year's version is 
radically different--and about 140 words shorter--than the last 
version that the Committee reported, in September 1999. The 
fact that this proposal changes in form and substance from year 
to year does not inspire confidence that we have discerned the 
correct formulation. We continue to believe that the kind of 
legislative fine-tuning that this important subject requires 
simply cannot be done in the context of a constitutional 
amendment that can only be modified, once it is ratified, 
through another constitutional amendment.
    Nevertheless, leaving that more general objection aside for 
the moment and taking the amendment on its own terms, we have 
grave concern about the lack of specificity in some key areas. 
In particular, many of the amendment's key words remain 
undefined. We do not even know whether these words would have 
one meaning (if Congress alone could define them) or more than 
50 (if, as the majority claims in part V, the States would also 
enjoy ``plenary authority to enact definitional laws for 
purposes of their own criminal system.''). Years of litigation 
would be necessary to flesh out the amendment's actual scope, 
enforcement mechanisms, and remedial nature.

1. The Term ``Victim'' Is Undefined

    The most basic point about any constitutional right is, 
whose right is it? In August 1997, the ABA House of Delegates 
resolved that any measure to recognize victims' rights in the 
criminal justice system should, among other things, define the 
class of protected ``victims.'' More than six years later, the 
proposed constitutional amendment still fails to adhere to this 
basic principle.
    By contrast, other constitutional provisions are relatively 
clear. The 6th amendment, to which the proposed victims' rights 
amendment is often compared, guarantees rights to those who 
have been formally accused of a crime and (after some 
clarification by the Supreme Court) we know who they are. The 
5th amendment is equally clear, although written in terms of a 
restriction on government power (``No person shall be held to 
answer for a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a Grand Jury * * * nor shall any 
person be subject for the same offence to be twice put in 
jeopardy. * * *''). The other amendments to our present 
Constitution are even more straightforward, since they apply 
without exception to ``the people,'' or to ``citizens of the 
United States,'' or, in the case of the fourteenth amendment, 
to ``all persons born or naturalized in the United States and 
subject to the jurisdiction thereof.''
    Who would have rights under the proposed victims' rights 
amendment? The answer in the text of the amendment is ``victims 
of violent crime,'' but what does that mean? Consider the most 
obvious violent crime--murder. Ordinarily, we would think of 
the victim of this crime as the dead person, but that answer--
what Justice Scalia might call the plain language approach to 
interpretation--will not do here. Maybe no one gets the benefit 
of the proposed constitutional rights in a murder case. Maybe 
the reference in section 3 to ``the victim's lawful 
representative'' refers, in a murder case, to the executor or 
co-executors of the victim's estate (assuming the victim left a 
will), although people selected for their financial management 
abilities may not be the people most interested in the criminal 
prosecution. Or maybe the amendment's supporters are banking on 
so-called ``activist judges'' to add words to the amendment 
that are not there and extend the new rights to members of the 
murder victim's family. \111\
---------------------------------------------------------------------------
    \111\ This appears to be the majority's strategy. The majority 
report states (in part V): ``In homicide cases, victim's rights can be 
asserted by surviving family members or other persons found to be 
appropriate by the court.''
---------------------------------------------------------------------------
    This would raise other questions, like which family members 
would be covered. Would the eight-year-old son of a murder 
victim be entitled to make arguments in connection with a 
negotiated guilty plea? Would unmarried couples, be they 
heterosexual or homosexual, count as families? What about 
members of the extended family--aunts and uncles, cousins, 
grandparents, or in-laws? And what happens when members of the 
victim's family hold different views about the death penalty, 
or each wants a share of the mandatory restitution order?
    Let us consider another sort of violent crime--armed 
robbery of a convenience store. Who must be notified of public 
proceedings involving this crime: The security guard who was 
shot and physically injured? The 10 customers who were 
psychologically traumatized but not physically injured? The 
store owners (or their insurance company), who were not present 
during the robbery but suffered financial loss? Is the answer 
the same when it comes time to award restitution, or are the 
``victims'' for that purpose limited to those who actually lost 
money?
    We have discussed two relatively straightforward crimes, 
murder and robbery. Other crimes, such as crimes involving 
terrorism and mass violence, or compound crimes under the 
federal RICO statute that can include lots of different 
criminal acts, some violent and some non-violent, over an 
extended period of years, will involve even harder problems 
when courts try to identify who is, and who is not, a 
``victim.'' 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? Would all the relatives of 
the thousands killed in the terrorist attacks of September 11, 
2001, be entitled to weigh in on any plea bargains offered to 
defendants implicated in that catastrophe?
    The failure to define ``victim'' raises another set of 
problems with respect to crimes committed, or allegedly 
committed, in self defense. In a typical case, the police get a 
call from neighbors who hear shouting and screaming and pots 
and pans being thrown. They reach the house and find the 
husband and wife hysterically angry at one another and a young 
child cowering in the corner. It is not entirely clear who 
attacked whom, but the husband is injured and the police arrest 
the wife and charge her with assault. The wife claims it was 
self-defense; the husband claims she attacked him without 
provocation.
    Under current law, it is up to the jury to determine who is 
the victim and who is the criminal in this sad domestic 
scenario, and the jury makes that determination after hearing 
all the evidence from both sides at trial. Under the proposed 
amendment, however, that determination must be made at the 
outset, before the wife's bail hearing and, in many cases, 
before there has been a full investigation of the facts. Once 
the wife is charged, the husband gets the special new 
constitutional rights of a crime victim. Maybe he will push for 
bail or for a plea with a minimum sentence conditioned on his 
getting custody of the child, perhaps accompanied by a new kind 
of child support called ``restitution.'' Or maybe the husband 
will be satisfied with his new constitutional right to notice 
of his wife's release from custody, which will help him track 
her down and exact revenge. 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, 
Wisconsin, Pennsylvania, and Wyoming--all oppose a victims' 
rights constitutional amendment for these reasons.
    Illustrative of the peculiar problems raised by domestic 
violence cases is State ex rel. Romley v. Superior Court.\112\ 
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 his partner, now the defendant. Moreover, the defendant, 
not the husband ``victim,'' 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.
---------------------------------------------------------------------------
    \112\ 836 P.2d 445 (Ariz. Ct. App. 1992).
---------------------------------------------------------------------------
    While nothing in S.J. Res. 1 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. 1 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.

2. The Term ``Violent Crime'' Is Undefined and Arbitrary

    The scope of the proposed amendment also turns on a second 
undefined term, ``violent crime.'' Ordinarily, violent crimes 
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 ``violent crime'' (or the 
comparable 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.\113\
---------------------------------------------------------------------------
    \113\ 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) incorporates felonies under 
chapter 109A and chapter 110, relating to sexual abuse and sexual 
exploitation of children.
---------------------------------------------------------------------------
    Other crimes present hard cases, too. Is drunk driving a 
crime of violence if the driver physically injures a 
pedestrian? What if the driver runs over the pedestrian's dog, 
or crashes into a parked car? Can the same offense be a crime 
of violence if someone is physically injured, but not 
otherwise?
    What about elder abuse or child abuse that takes the form 
of extreme neglect? Neglect of the weak and vulnerable in our 
society by those who have taken the responsibility of being 
their caregivers can cause as much harm as almost any violence, 
without a hand ever being lifted against them. But are neglect 
and psychological abuse ``violence''?
    The crime of parental kidnapping raises similar questions. 
If a parent who has been denied legal custody of a child 
kidnaps the child, is that a crime of violence, and if so, who 
is the victim--the child, the custodial parent or both?
    The text of the proposed amendment does not answer these 
questions. The majority report (in part V) suggests answers, 
some of which seem to stretch the concept of a ``violent 
crime'' to the breaking point. It suggests, for example, as 
possible crimes of violence, burglary, driving while 
intoxicated, espionage, stalking, and the unlawful displaying 
of a firearm--very serious crimes, but crimes that usually do 
not involve ``violence'' in the normal sense of the word.
    Again, the sponsors of the proposed amendment leave it to 
future legislation and the courts to sort out the meaning of 
``violent crime.'' 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.
    Beyond the problem of defining ``violent crime,'' limiting 
the scope of the amendment to such a concept is unconscionably 
arbitrary. Chairman Hatch discussed this problem with respect 
to an earlier version of the proposed amendment. He wrote:

          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 of 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.\114\

    \114\ S. Rep. No. 105-409, supra, at 42 (additional views of Sen. 
Hatch).
---------------------------------------------------------------------------
    The sponsors of S.J. Res. 1 do not in any way disagree that 
the scope of their proposed amendment is arbitrary. Instead, 
they explain it as a political compromise.\115\ But surely we 
owe the American people something more than arbitrary political 
compromises when we amend their Constitution.
---------------------------------------------------------------------------
    \115\ See, e.g., Crime Victims' Rights Constitutional Amendment, S. 
Rep. No. 106-254, 106th Cong., 2d Sess., part IX (additional views of 
Sens. Kyl and Feinstein).
---------------------------------------------------------------------------

3. The Right to ``Reasonable and Timely Notice of Any Public Proceeding 
        Involving the Crime'' Is Undefined and May Have Unintended 
        Consequences in Civil and Military Proceedings

    The proposed amendment requires that victims be given 
``reasonable and timely notice of any public proceeding 
involving the crime and of any release or escape of the 
accused.'' But, again, key terms are left undefined. Most 
importantly, what constitutes ``reasonable and timely 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 thirty 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 and timely notice'' gives no indication as to what 
manner of notice a victim must receive. 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? 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.
    The term ``public proceeding,'' while seemingly 
straightforward, may also be less clear than it seems. For 
example, the majority report (in part V), reads section 2's 
right to be heard at public release proceedings to apply even 
in jurisdictions where parole decisions are not made in public 
proceedings. ``For such jurisdiction,'' the majority writes, 
``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.'' That reading may have been correct under 
the provisions of a previous version of the proposed amendment, 
which explicitly extended the right to be heard to the context 
of ``a parole proceeding that is not public, to the extent 
those rights are afforded to the convicted offender,'' \116\ 
but it is plainly incorrect now that such language has been 
excised from the bill. That the majority blithely assumes the 
amendment will mean what they want it to mean, regardless of 
its actual text, betrays a cavalier attitude unworthy of either 
our Constitution or of the victims to whom they are making 
promises they cannot possibly keep.
---------------------------------------------------------------------------
    \116\ S.J. Res. 3, 106th Cong., Sec. 1 (1999).
---------------------------------------------------------------------------
    To what extent would the notification right established by 
S.J. Res. 1 apply to civil proceedings? The Justice Department 
has said ``not at all,'' \117\ but we are not so sure. Section 
2 states that a victim shall have the right to reasonable and 
timely notice ``of any public proceeding involving the crime.'' 
While most public proceedings involving a crime arise from a 
criminal prosecution, the plain language of section 2 
encompasses some civil proceedings.
---------------------------------------------------------------------------
    \117\ See Hearing of Apr. 8, 2003 (``I do not believe that the 
amendment as written grants victims the right to be informed of civil 
actions. * * *''; response of Viet Dinh, Assistant Attorney General, to 
follow-up question 6 by Sen. Leahy).
---------------------------------------------------------------------------
    Consider, for example, a wrongful death action brought by 
the mother of a homicide victim against the suspected killer. 
Who would have the constitutional obligation to provide 
``reasonable and timely notice'' to the plaintiff's estranged 
husband (and father of the victim)? The plaintiff (who, as a 
crime victim, should not be burdened by this amendment), the 
court (which is already overburdened and may lack the 
information necessary to provide the required notice), or the 
law enforcement agencies that investigated and prosecuted the 
crime (which may not even know that the civil action has been 
brought)? We agree with one former prosecutor, who argued that 
this burden would inevitably fall to law enforcement, even 
though it was ``totally unrelated to improving the lot of crime 
victims in the criminal justice system and * * * would further 
deplete the already strained resources of prosecutors and 
police, assuming that they even have sufficient knowledge of 
the ancillary suit to fulfill their obligations.'' \118\
---------------------------------------------------------------------------
    \118\ Hearing of Apr. 8, 2003 (statement of James Orenstein).
---------------------------------------------------------------------------
    Just as the amendment could, by its terms, apply in civil 
cases, it could also be construed to apply in proceedings 
brought by the U.S. military. As previously discussed (in 
section (C)(1)), such application could impact substantially on 
any efforts to use military commissions to try suspected 
terrorists.

4. The ``Adjudicative Decisions'' Clause Creates a Morass of Undefined 
        Issues and May Effect a Profound Change in Criminal 
        Adjudication

    One of the new features in the latest version of the 
proposed amendment is the establishment of a right to obtain 
``adjudicative decisions that duly consider the victim's 
safety, interest in avoiding unreasonable delay, and just and 
timely claims to restitution from the offender.'' This ill-
defined clause will, at a minimum, lead to extensive 
litigation, and could have extraordinary adverse consequences.
    What are ``adjudicative decisions''? The term is not 
defined as a matter of constitutional law, and it appears 
expansive. In the typical criminal case, a facially reasonable 
interpretation would apply to scores, perhaps hundreds, of 
rulings. Moreover, there is no reason to believe that 
``adjudicative decisions'' can be made only by judges. Is a 
Governor's decision to commute a sentence ``adjudicative''? 
What about a jury's verdict or sentencing recommendation in a 
capital case?
    Virtually the only input we have had on the meaning of the 
new language, offered by a leading supporter of the amendment, 
confirms that it is intended to be far-reaching: 
``'[A]djudicative decisions' includes both court decisions and 
decisions reached by adjudicative bodies, such as parole 
boards. Any decision reached after a proceeding in which 
different sides of an issue would be presented would be an 
adjudicative decision.'' \119\
---------------------------------------------------------------------------
    \119\ Hearing of Apr. 8, 2003 (statement of Steve Twist).
---------------------------------------------------------------------------
    Further, because the section 2 clause respecting 
``adjudicative decisions'' lacks the ``public proceeding'' 
limitation written into other parts of that section, it will 
likely apply to decisions made at both public and closed 
proceedings. That fact creates yet another question that the 
majority has left unresolved: In a non-public proceeding, at 
which the victim has no participatory rights, who will present 
the information about victim safety that the decisionmaker must 
``duly consider''? If it is the victim, then the participatory 
rights granted in section 2 are broader than previously 
imagined. If it is the prosecutor, then the mandate in section 
3 that only the victim may assert the victim's rights is 
narrower than previously imagined. Moreover, if the prosecutor 
fails to present information about victim safety that the 
victim subsequently articulates, that may open the decision to 
challenge, appeal, and rehearing.
    As vexing as the attempt to define ``adjudicative 
decisions'' may prove, it could pale in comparison to the 
daunting task of deciding whether each such decision has ``duly 
considered'' the various interests identified in section 2. 
Even if the courts eventually decide that only judges make 
``adjudicative decisions,'' the requirement that each such 
decision ``duly consider the victim's safety, interest in 
avoiding unreasonable delay, and just and timely claims to 
restitution from the offender'' could lead to endless 
litigation in criminal cases. Courts will have to grapple with 
any number of questions, the resolution of which could make the 
prosecution of offenders a far lengthier and more complicated 
process.
    Consider the first of the three interests that, under 
section 2, must be duly considered in all adjudicative 
decisions: the victim's safety. In the typical criminal case, 
victim safety is normally considered in relation to bail and 
other conditional release decisions, and may also be considered 
in relation to decisions involving sentencing, revocation of 
probation, parole, and clemency. Victim safety generally is not 
considered in relation to decisions that affect, directly or 
indirectly, whether the defendant is convicted, such as 
decisions involving suppression of evidence on constitutional 
grounds, privilege and other evidentiary issues, and jury 
instructions. If these types of potentially outcome-
determinative decisions--or the final determination as to guilt 
or innocence--must duly consider the victim's safety, the 
consequences for the defendant's right to a fair trial could be 
severe.
    Previous versions of the proposed amendment approved by the 
Committee avoided such problems, but only by using a level of 
precision more suited to a statute than an amendment to the 
Constitution. They provided the right ``to consideration for 
the safety of the victim in determining any conditional release 
from custody relating to the crime.'' \120\ While unnecessary, 
in that there are no current constitutional provisions that 
prevent such consideration--and indeed the Supreme Court has 
specifically endorsed such consideration as to preventive 
detention \121\--the grant of the right was relatively clear, 
understandable, and limited. It would have allowed courts to 
extend the new right at appropriate points in the proceedings, 
and not elsewhere. By contrast, the right granted by S.J. Res. 
1 is ill-defined, unjustified, and potentially radical in its 
scope and impact.
---------------------------------------------------------------------------
    \120\ S.J. Res. 3, 106th Cong., Sec. 1 (1999); S.J. Res. 44, 105th 
Cong., Sec. 1 (1998).
    \121\ United States v. Salerno, 481 U.S. 739 (1987).
---------------------------------------------------------------------------
    The other interests of victims that must be ``duly 
considered'' under this proposal--i.e., the interests in 
``avoiding unreasonable delay'' and ``just and timely claims to 
restitution''--also raise troubling questions. Could victims 
object to the admission of evidence on the ground that it would 
lengthen the trial, and thus impair their interest in avoiding 
unreasonable delay? Must every ``adjudicative decision'' in a 
criminal case examine the effects of the ruling on the right to 
restitution? Examples could be multiplied, and undoubtedly some 
would be more fanciful than others. But given the change in 
language from the previous proposal, and given the countless 
adjudicative decisions that are made in the course of every 
criminal prosecution, it seems inevitable that the current 
version of the proposed amendment would cause real mischief.

5. The Remedial Scheme Is Uncertain and Could Substantially Increase 
        Case Processing Times

    Unlike every other provision in the Constitution, the 
proposed amendment would by its own terms limit the scope of 
remedies available for the violation of the rights it purports 
to guarantee. Section 3 provides, in part: ``Nothing in this 
article shall be construed to provide grounds for a new trial 
or to authorize any claim for damages.'' The fact that any such 
limitation is necessary highlights the potential for mischief 
that the proposed amendment could visit upon our criminal 
justice system.
    More importantly, the lack of precision as to what remedies 
are and are not intended to be permitted by this provision will 
lead to more costly and time consuming litigation and could 
place an enormous drag on our already overburdened courts. That 
is because, unlike past versions of the proposed amendment, 
S.J. Res. 1 could be construed to provide grounds to stay 
trials, reopen proceedings, and invalidate rulings. Indeed, 
such a construction seems likely, given the relevant 
legislative history.
    The previous version of the proposed amendment stated, 
``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.'' 
\122\ When the Committee approved that version in 1999, it 
explained that the prohibitions on judicially-created remedies 
``to stay or continue any trial'' and ``reopen any proceeding 
or invalidate any ruling'' were added ``because of the concern 
that a broad judicial remedy might allow victims to 
inappropriately interfere with trials already underway.'' \123\ 
By omitting these prohibitions--and by specifically rejecting a 
proposal to reinsert them \124\--the Committee invites courts 
to grant victims' requests for such relief to remedy violations 
of their rights.
---------------------------------------------------------------------------
    \122\ S.J. Res. 3, 106th Cong., Sec. 2 (1999).
    \123\ S. Rep. No. 106-254, supra, at 40.
    \124\ The vote on this proposal, offered by Sen. Durbin at the 
Committee's September 4 markup, was 8 in favor, 10 opposed.
---------------------------------------------------------------------------
    The previous Administration, which like the current one 
supported a victims' rights amendment, nevertheless expressed 
concern that it might ``unduly disrupt the finality of 
sentences'' by allowing victims to reopen completed criminal 
cases to revisit the issue of restitution.\125\ In commenting 
on the current proposal--which allows for even greater 
interference with criminal prosecutions-Justice Department 
officials have brushed aside such concerns, but made no attempt 
to explain why they were unfounded.\126\ Thus, while the 
Department professes to believe that ``the proposed amendment 
should not be used as a tool to slow down criminal 
proceedings,'' acknowledging that this ``would ultimately 
benefit the criminal defendant,'' \127\ that is precisely what 
S.J. Res. 1 threatens to do.
---------------------------------------------------------------------------
    \125\ Rights of Crime Victims Constitutional Amendment, Hearing on 
H.J. Res. 64 before the Subcomm. on the Constitution of the House Comm. 
on the Judiciary, 106th Cong., 2d Sess. 291 (Feb. 10, 2000) (statement 
of Eleanor D. Acheson, Assistant Attorney General).
    \126\ See, e.g., Hearing of Apr. 8, 2003 (response of Viet Dinh, 
Assistant Attorney General, to follow-up question 8 by Sen. Leahy); 
S.J. Res. 35, Proposing a Victims' Rights Amendment to the United 
States Constitution, Hearing before the Subcomm. on the Constitution of 
the Senate Comm. on the Judiciary, 107th Cong., 2d Sess. 48 (July 17, 
2002) (response of John Gillis, Director, OVC, to follow-up question 15 
by Sen. Leahy).
    \127\ Id.
---------------------------------------------------------------------------
    The current language could cause any number of problems, 
but three examples will suffice. First, by failing to stipulate 
that a victim has no grounds to reopen a negotiated plea, S.J. 
Res. 1 could substantially interfere with the prosecutor's 
ability to secure convictions. As explained by the U.S. 
Judicial Conference:

        Permitting the challenge of a proposed plea interferes 
        with the prosecutor's ability to obtain convictions of 
        defendants whose successful prosecution may rest on the 
        cooperation of another defendant. Guilty pleas are 
        sometimes also negotiated because the prosecution 
        witnesses are, for various reasons, not as strong as 
        they appear to be on paper. Also, the sheer volume of 
        cases would generally overwhelm any prosecutor's office 
        and the courts unless the vast majority were settled.

Our federal judges concluded, ``The significance of this issue 
should not be underestimated.'' \128\
---------------------------------------------------------------------------
    \128\ Letter from Leonidas Ralph Mecham, Secretary, Judicial 
Conference of the United States, to Sen. Hatch, Chairman, and Sen. 
Leahy, Ranking Member, Senate Comm. on the Judiciary, Apr. 30, 2003.
---------------------------------------------------------------------------
    Second, under S.J. Res. 1, if a criminal defendant is 
sentenced without prior notice to the victim, his sentence 
could potentially be vacated and remanded for a new sentencing 
hearing. At a minimum, this re-sentencing would tax the 
resources of the court, the prosecutor, the marshal or sheriff, 
and possibly prison officials. At worst, if the court imposed a 
more severe sentence, the defendant could allege a colorable 
violation of the 5th amendment's double jeopardy clause.
    Third, suppose that a judge, during the penalty phase of a 
capital case, issues an ``adjudicative decision'' that, 
according to the victim, did not ``duly consider the victim's 
safety * * * and just and timely claims to restitution.'' Under 
the previous version of the amendment, the proceeding could not 
be stayed pending the victim's appeal of the decision; under 
the current proposal, it probably could. Such a delay would at 
a minimum complicate the sentencing process, and could possibly 
undermine the prosecution's efforts to secure a death sentence. 
Among other problems, the delay could result in the loss of 
some of the jurors who decided the defendant's guilt, thereby 
requiring the empanelment of a new sentencing jury.
    The second part of the section 3 remedies clause 
establishes a blanket prohibition on ``any claim for damages.'' 
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 (in part V), while the proposed 
amendment does not itself authorize a claim for damages, nor 
does it preclude such a claim if established under other 
legislation. If so--if Congress could establish a statutory 
damages remedy for violations of S.J. Res. 1--then section 3's 
``no-damages'' clause is illusory, and promises States more 
protection than it actually provides. More likely, however, is 
that Congress could not establish such a remedy without 
exceeding its section 4 enforcement authority.\129\
---------------------------------------------------------------------------
    \129\ See City of Boerne v. Flores, 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Roger Pilon, director of the Cato Institute's Center for 
Constitutional Studies, compared an earlier version of the 
proposed amendment to the generous legacy in a pauper's will: 
It promises much but delivers little.\130\ To the extent that 
the remedies it permits undermine the criminal justice system, 
it ill-serves the victims whose primary interest is to see that 
offenders are convicted and punished. To the extent that it 
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 United States Constitution.
---------------------------------------------------------------------------
    \130\ Hearing of Apr. 16, 1997, at 47.
---------------------------------------------------------------------------

6. The ``Restrictions'' Clauses Are Inflexible And Could Undermine Law 
        Enforcement

    In addition to recognizing the need to limit the remedies 
available for violations of the proposed new constitutional 
rights, supporters of the amendment have consistently 
acknowledged a pressing need to limit the rights themselves, so 
that law enforcement and prison officials can continue doing 
their jobs effectively. The last version of the proposed 
amendment endorsed by the majority attempted to address this 
concern by including language that would have allowed 
``exceptions'' to the newly-established rights in certain very 
limited circumstances.\131\ We expressed the concern then that 
the permitted exceptions were too narrow and would undermine 
law enforcement. The new version only makes matters worse: 
Instead of allowing at least some exceptions, the current bill 
explicitly states in section 1 that a victim's rights may never 
be ``denied'' but may only be subject to very limited 
``restrictions,'' the contours of which are only vaguely 
identified in section 2.
---------------------------------------------------------------------------
    \131\ S.J. Res. 3, 106th Cong., Sec. 3 (1999).
---------------------------------------------------------------------------
    During the Committee markup of S.J. Res. 1, Senator 
Feingold offered an amendment to clarify that victims'' rights 
can, in certain circumstances, be ``denied'' as well as merely 
``restricted.'' This change would have accommodated those 
situations where a complete denial of a victim's rights may be 
required in the interests of effective law enforcement or 
public safety. The Committee rejected this amendment by a 7-to-
10 vote.
    In light of this legislative history, as well as the 
dictionary definitions of the relevant terms, courts are bound 
to interpret the ability to allow ``restrictions'' of victims'' 
rights to mean something other than permission to ``deny'' or 
carve out ``exceptions'' to those rights. As the majority 
report (in part V) explains:

          [In sections 1 and 2 of the amendment], an important 
        distinction between ``denying'' rights and 
        ``restricting'' rights is established. As used here, 
        ``denied'' means to ``refuse to grant;'' see Webster's 
        New Collegiate Dictionary 304 (1977). In other words, 
        it means to prohibit the exercise of the right 
        completely. The amendment, by its terms, prohibits such 
        a denial. At the same time, the language recognizes 
        that no constitutional right is absolute and therefore 
        permits ``restrictions'' on the rights, but only, as 
        provided in section 2, in three narrow circumstances.

As thus interpreted, the proposed amendment could pose enormous 
difficulties for law enforcement in a variety of contexts.
    In organized crime cases, for example, prosecutors may need 
to secure cooperation agreements under which one gangster 
agrees to plead guilty and then, upon release on bail, 
surreptitiously gather information about others. Often, the 
prospective cooperator has previously committed violent crimes 
in which the victims are themselves criminals. The proposed 
amendment would confer on such victims the right to 
``reasonable and timely notice'' of the cooperator's guilty 
plea, the same right with respect to the cooperator's bail 
hearing, and the rights ``not to be excluded from'' and 
``reasonably to be heard at'' both. Those rights could be 
``restricted'' in certain circumstances, but not ``denied.''
    For the law enforcement interest to be vindicated in this 
context, the victims must receive no notice of the cooperator's 
plea or release, at least until well after the fact. While 
alerting the victims to these events would endanger the 
cooperator and undermine his ability to assist law enforcement 
by collecting evidence, it may be unavoidable under S.J. Res. 
1. The prosecutor might argue that the court should for good 
cause postpone the notice required by the amendment, but such 
an argument would likely fail. Even if the delayed notice could 
be considered ``reasonable,'' it could not be considered 
``timely,'' which the amendment also requires.\132\ Moreover, 
taking affirmative steps to delay notice would effectively 
exclude the victim from the proceeding--that would be the 
precise point of the delay--and would make it impossible for 
the victim ``reasonably to be heard'' with respect to the plea 
or the cooperator's release. And, as previously discussed (in 
section (C)(1)), the problem is not easily avoided by closing 
proceedings to the public (and so depriving victims of any 
rights under the proposed amendment), given the vital first 
amendment interest in open judicial proceedings. In short, the 
victim's rights would plainly have been ``denied,'' in 
violation of section 1.
---------------------------------------------------------------------------
    \132\ As one pro-amendment witness told the Committee, `` `Timely' 
notice would require that the victim be informed enough in advance of a 
public proceeding to be able reasonably to organize his or her affairs 
to attend.'' Hearing of Apr. 8, 2003 (statement of Steve Twist).
---------------------------------------------------------------------------
    None of this would be a problem if the amendment permitted 
``denials'' of rights or ``exceptions,'' as the facts would 
likely be held to implicate ``a substantial interest in public 
safety or the administration of criminal justice.'' But S.J. 
Res. 1 allows only ``restrictions'' that do not ``deny'' a 
victim's rights--and the necessary restrictions would in most 
cases do just that.
    The ``restrictions'' language could also cause enormous 
problems in mass victim cases. As a practical matter, courts 
will sometimes be unable to allow every victim ``reasonably to 
be heard'' at every bail, plea, and sentencing proceeding.\133\ 
The pragmatic approach generally adopted in suchcases is to 
hear from a representative cross-section of victims. If the proposed 
amendment permitted ``denials'' of, or ``exceptions'' to, victims' * * 
* rights in appropriate circumstances, this pragmatic approach would 
plainly be constitutional insofar as it is ``dictated by a substantial 
interest in the administration of criminal justice.'' But such a 
solution would not work under an amendment that permits 
``restrictions'' but not ``denials'' or ``exceptions.'' A victim 
excluded from the representative group in this scenario could plainly 
show that her right reasonably to be heard had been ``denied,'' in 
violation of section 1. The fact that others with similar interests had 
been allowed to speak might fairly be considered an appropriate 
``restriction'' on the collective interest of all victims in being 
heard, but the proposed amendment creates rights for individual 
victims, not a group.\134\
---------------------------------------------------------------------------
    \133\ Amendment proponents have suggested that, in mass victim 
cases, the right to be heard may be protected by allowing victims to 
submit written statements. But this may not be possible given the text 
and history of S.J. Res. 1. In the previous version approved by the 
Committee, victims had a right ``to be heard, if present, and to submit 
a statement'' at certain proceedings. Courts could rule that the switch 
to a right ``reasonably to be heard'' was intended to confer a absolute 
right to make an oral statement, subject to appropriate limitations on, 
for example, scheduling, duration of the live presentation, and subject 
matter. A victim permitted only to submit a statement has not been 
permitted ``reasonably to be heard''--she has not been ``heard'' at 
all--and accordingly her right has been ``denied'' rather than merely 
``restricted.''
    \134\ It is clear from the language of S.J. Res. 1 that it grants 
rights to individual victims, not to victims as a group. As one pro-
amendment witness told the Committee, ``The rights [conferred by S.J. 
Res. 1] are individual, even as the rights of defendants are 
individual.'' Hearing of Apr. 8, 2003 (response of Steve Twist to 
follow-up question 4 by Sen. Leahy).
---------------------------------------------------------------------------
    In mass victim cases, the right to ``reasonable and timely 
notice'' could also put a serious strain on judicial and law 
enforcement resources, and divert attention from the effective 
prosecution of the case. If the perpetrator of a horrific event 
like the September 11 attacks is apprehended, must prosecution 
be delayed until all victims can be identified and notified? 
Does every victim have standing to challenge a plea or sentence 
that was entered in violation of her notice and participatory 
rights?
    As discussed above (in section (E)(1)), one significant 
problem with the proposed 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 (in part V) asserts without explanation that in 
such cases, the restrictions clauses offer sufficient 
flexibility to modify victims' rights provisions. It is not so 
easy. While a court could reasonably decide that allowing a 
batterer the full panoply of victims' rights would be abhorrent 
to the administration of justice, it could only ``restrict'' 
and not ``deny'' these rights. As a result, it could be forced 
to allow a batterer to use court proceedings to inflict new 
trauma on the true victim.
    Further, by allowing victims' rights to be restricted only 
``when and to the degree dictated by a substantial interest in 
public safety or the administration of criminal justice,'' 
section 2 fails to allow courts to consider an interest in the 
administration of civil justice, however substantial. As 
Senator Feingold explained during the Committee's September 4 
markup of S.J. Res. 1, inclusion of the word ``criminal'' will 
prevent courts from limiting a victim's rights, even when the 
exercise of such rights would be terribly disruptive of a 
proceeding in a habeas corpus or mass tort case involving the 
crime.\135\ Surely, the civil justice system is no less worthy 
of protection than the criminal justice system. Yet the 
Committee inexplicably rejected Senator Feingold's proposal to 
strike the word ``criminal'' from section 2.
---------------------------------------------------------------------------
    \135\ The majority (in part V) asserts without explanation that 
``the administration of criminal justice exception covers habeas corpus 
filings and proceedings.'' But the Supreme Court has consistently 
recognized that habeas corpus proceedings are civil, not criminal, in 
nature. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
---------------------------------------------------------------------------
    As disturbing as the current proposal's rigidity should be 
to all of us who favor effective law enforcement, more 
flexibility is not the answer. If we really need a 
constitutional amendment, it should be to bind the hands of 
government. The fact that this amendment, unlike any other, 
requires a built-in exceptions clause of even greater 
flexibility does not mean that we should try to rewrite it for 
the 65th time. Rather, it proves yet again that a 
constitutional amendment simply is not the right approach.
    Finally, the restrictions clause in section 2 is also 
problematic because it does not identify who may restrict the 
victims' rights. Does the power to allow restrictions, 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 
restrictions 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 said of an earlier version, 
``the proposed amendment is a litigator's dream and a victim's 
nightmare.''\136\
---------------------------------------------------------------------------
    \136\ A Proposed Constitutional Amendment to Protect Crime Victims, 
Hearing on S.J. Res. 44 before the Senate Comm. on the Judiciary, 105th 
Cong., 2d Sess. 170 (Apr. 28, 1998).
---------------------------------------------------------------------------

7. The Phrase ``Are Hereby Established'' Is Unnecessary and Does Not 
        Conform to Existing Constitutional Amendments

    No rights in the Bill of Rights or other constitutional 
amendments are ``established''; rather, they are simply 
recognized. During Committee consideration of S.J. Res. 1, 
Senator Feingold offered an amendment to conform the language 
of S.J. Res. 1 to existing constitutional amendments by 
striking the phrase ``are hereby established'' from section 1. 
The Committee rejected this amendment by a 7-to-10 vote.
    In drafting an amendment to the United States Constitution, 
we must be especially deliberative and careful. The operative 
language of the proposed amendment should be consistent with 
language that protects other individual rights in the 
Constitution.
    For example, the fourth amendment states, ``The right of 
the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not 
be violated, and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and particularly 
describing the place to be searched, and the persons or things 
to be seized.'' The fourthamendment does not say that these 
rights are ``established.'' The fifth amendment provides that ``No 
person shall be * * * deprived of life, liberty, or property, without 
due process of law.'' Again, like the fourth amendment, the fifth 
amendment's due process and other rights and protections are not 
``established'' by the amendment.
    It has been argued that the phrase ``are hereby 
established'' is necessary because the rights of victims were 
not protected by the original Bill of Rights, so we need to 
call more attention to them in this constitutional amendment. 
But the adoption of a constitutional amendment is a very 
significant event--it does not need to be underscored by 
textual surplusage. Beyond that, it is not how we have 
proceeded in the past. Women were not given the right to vote 
in the original Constitution, yet the 19th amendment did not 
``establish'' the right to vote for women, it simply stated: 
``The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any state on 
account of sex.''
    If the current version of the victims' rights amendment 
were enacted and ratified, it could be interpreted to undermine 
other constitutional rights long recognized, even though these 
rights are not described as ``established'' by the 
Constitution. This may be unlikely, but we see no reason to 
permit such an interpretation by including the words ``are 
hereby established.'' They serve no real purpose, and they are 
inconsistent with the way that amendments to our great 
governing document have been drafted in the past.

8. The Definitional Failures of S.J. Res. 1 Cannot Be Cured Through 
        Enforcement Clause Legislation

    We have discussed several ways in which the proposed 
constitutional amendment is vague and subject to competing 
interpretations, and there are others. It has been suggested 
that the answer lies in section 4, which provides that 
``Congress shall have the power to enforce by appropriate 
legislation the provisions of this article.'' For example, one 
of the lead sponsors of S.J. Res. 1 said at this year's 
hearing, ``It was our intention that questions such as 
definitions of who are victims, what kind of notice is required 
and by whom, and * * * the definition of violent crime, could 
well be dealt with by appropriate congressional legislation 
[enacted under section 4].'' \137\ But this use of the section 
4 enforcement power may not be possible given well-established 
constitutional precedent.
---------------------------------------------------------------------------
    \137\ Transcript of Hearing of Apr. 8, 2003, at 46-47 (Sen. Kyl).
---------------------------------------------------------------------------
    As witnesses on both sides of the constitutional debate 
agreed, ``the power to enforce is not the power to define.'' 
\138\ In recent years, the Supreme Court has issued a series of 
decisions interpreting the enforcement clause of the 14th 
amendment, upon which section 4 of the proposed amendment is 
modeled. Those cases state that Congress may not, under the 
guise of ``enforcing'' a constitutional amendment, either 
diminish the rights of the persons it was designed to protect 
or impose substantive new restrictions on State governments.
---------------------------------------------------------------------------
    \138\ Hearing of Apr. 8, 2003 (statement of Steve Twist); id. 
(response of James Orenstein to follow-up question 6 by Sen. Leahy).
---------------------------------------------------------------------------
    Thus, in the leading case of City of Boerne v. Flores,\139\ 
the Court struck down a federal statute that purported to 
redefine the scope of the 1st amendment right to the free 
exercise of religion (which is incorporated in the fundamental 
concept of liberty embodied in the 14th amendment's due process 
clause). In so doing, the Court explained the difference 
between measures that remedy or prevent unconstitutional 
actions, and measures that make a substantive change in the 
governing law:
---------------------------------------------------------------------------
    \139\ 521 U.S. 507 (1997).

          Congress' power under Sec. 5 [of the Fourteenth 
        Amendment] * * * extends only to ``enforcing'' the 
        provisions of the Fourteenth Amendment. * * * The 
        design of the Amendment and the text of Sec. 5 are 
        inconsistent with the suggestion that Congress has the 
        power to decree the substance of the Fourteenth 
        Amendment's restrictions on the States. Legislation 
        which alters the meaning of the Free Exercise Clause 
        cannot be said to be enforcing the Clause. Congress 
        does not enforce a constitutional right by changing 
        what the right is. It has been given the power ``to 
        enforce,'' not the power to determine what constitutes 
        a constitutional violation.\140\
---------------------------------------------------------------------------
    \140\ Id. at 519 (emphasis added).

Post-Boerne case law has further clarified the limits of 
Congress enforcement power. Just this Term, for example, that 
Court confirmed that ``it falls to this Court, not Congress, to 
define the substance of constitutional guarantees.'' \141\
---------------------------------------------------------------------------
    \141\ Nevada Dept. of Human Resources v. Hibbs, 123 S. Ct. 1972, 
1977 (2003). See also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 
(2000) (assessing the constitutionality of enforcement clause 
legislation requires court to determine whether statute ``is in fact * 
* * an appropriate remedy or, instead, merely an attempt to 
substantively redefine the States' legal obligations''); Fla. Prepaid 
Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 
637-648 (1999) (invalidating Patent Remedy Act because historical 
record and scope of the Act's coverage demonstrated that it was not 
merely remedial or prophylactic, but changed States' substantive 
obligations); Saenz v. Roe, 526 U.S. 489, 508 (1999) (``Congress' power 
under Sec. 5, however, `is limited to adopting measures to enforce the 
guarantees of the Amendment; Sec. 5 grants Congress no power to 
restrict, abrogate, or dilute these guarantees.' '') (quoting 
Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966)).
---------------------------------------------------------------------------
    Given this case law, any attempt by Congress to define the 
proposed amendment's key terms could well be held invalid. Such 
legislation would necessarily either restrict the rights of 
some persons who might otherwise be considered victims of 
violent crimes, or expand the substantive obligations of States 
whose laws would otherwise exclude certain persons from the 
protected class of victims. Either way, it would exceed 
Congress' enforcement power under section 4.
    Despite the need for something other than an enforcement 
provision, this version of the proposed amendment, unlike 
earlier versions, contains nothing else that could be construed 
as granting Congress, or even individual States, the power to 
define key terms.\142\ As a result, key termsare likely to be 
defined piecemeal by individual judges interpreting the new 
constitutional language, compounding the problem of a ``patchwork'' of 
victims' rights, and making the amendment the vaguest, blankest check 
that has ever been written to the judiciary.
---------------------------------------------------------------------------
    \142\ Compare S.J. Res. 44, 105th Cong., Sec. 3 (1998) (``The 
Congress and the States shall have the power to implement and enforce 
this article. * * * ''); S.J. Res. 3, 106th Cong., Sec. 1 (1999) (``A 
victim of a crime of violence, as these terms may be defined by law. * 
* * ''). For a detailed account of the relevant legislative history, 
see Hearing of Apr. 8, 2003 (response of James Orenstein to follow-up 
question 6 by Sen. Leahy).
---------------------------------------------------------------------------

                             F. CONCLUSION

    We who oppose this constitutional amendment are supporters 
of victims' rights. We have no less concern for the pain of 
victims of violent crime, or any crime, than those who support 
this amendment, and no less desire to promote their 
participation in the criminal justice system.
    We regret that the time and energy that could have led to 
increased improvements in the implementation of real 
protections for victims, better training for courts and 
prosecutors, better notification systems, and more consistent 
recognition of victims' rightful place in the criminal justice 
system, have, instead, been focused on this constitutional 
amendment process. That focus has been to the detriment of 
efforts toward federal statutory change, both comprehensive and 
incremental. Much to our regret, victim assistance programs 
have suffered, the Crime Victims Fund has been capped, and the 
pace of victims' rights legislation has slowed over the last 
four years. Fortunately, the States are continuing to move 
ahead.
    It is not victims' rights but this well-intentioned yet 
controversial constitutional amendment that we oppose. We must 
not hamstring our prosecutors and sacrifice core protections 
guaranteed by the Bill of Rights to enact this unnecessary and 
problematic constitutional amendment, which promises much, but 
may deliver very little. For all these reasons--it is not 
necessary to amend the Constitution to protect victims' rights; 
the proposed amendment could have dangerous and uncertain 
consequences for the administration of justice; the proposed 
amendment infringes unduly on States' rights; and the wording 
of the proposed amendment is problematic--the proposed 
constitutional amendment should not pass.

                                   Patrick J. Leahy.
                                   Edward M. Kennedy.
                                   Herb Kohl.
                                   Russ Feingold.
                                   Charles E. Schumer.
                                   Richard J. Durbin.

                      XII. 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 S.J. Res. 1.