United States. Congress. House. Committee on the J.

Proposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 online

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Online LibraryUnited States. Congress. House. Committee on the JProposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 → online text (page 1 of 24)
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PROPOSALS FOR A CONSTITUnONAL AMENDMENT
TO PROVIDE RIGHTS FOR VICTIMS OF CRIME



Y 4. J 89/1:104/91



Proposals for a Constitutional ftnen...

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.J. Res. 173 and H.J. Res. 174

PROPOSAI^ FOR A CONSTITUTIONAL AMENDMENT TO
PROVIDE RIGHTS FOR VICTIMS OF CRIME



JULY 11, 1996



Serial No. 91




' V C- •' ' 'n^ • J



8 1 9 1997



Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
35-331 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053788-6



PROPOSALS FOR A CONSTITUTIONAL AMENDMENT
TO PROVIDE RIGHTS FOR VICTIMS OF CRIME



Y 4. J 89/1:104/91

Proposals for a Constitutional Anen...

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.J. Res. 173 and H.J. Res. 174

PROPOSALS FOR A CONSTITUTIONAL AMENDMENT TO
PROVIDE RIGHTS FOR VICTIMS OF CRIME



JULY 11, 1996



Serial No. 91 tnm



B 1 S 1337




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
35-331 CC WASHINGTON : 1996

For sale by the U.S. Government Printing Oftlce
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053788-6



COMMITTEE ON THE JUDICIARY



HENRY J. HYDE.
CARLOS J. MOORHEAD, California
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER. Indiana
MARTIN R. HOKE. Ohio
SONN^ BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia



Illinois, Chairman
JOHN CONYERS, Jr., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, Cahfomia
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT. North Carolina
XAVIER BECERRA. California
ZOE LOFGREN. California
SHEILA JACKSON LEE, Texas
MAXINE WATERS. California



Alan F. Coffey, Jr.. General Counsel / Staff Director
Julian Epstein, Minority Staff Director



(II)



CONTENTS



HEARING DATE



July 11, 1996 1

TEXTS OF BILI^

H.J. Res. 173 3

H.J. Res. 174 6

OPENING STATEMENT

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois,

and chairman, Committee on the Judiciary 1

WITNESSES

Feinstein, Hon. Dianne, a Senator in Congress from the State of California .... 12

Greenlee, Ellen, president. National Legal Aid and Defender Association 141

Hodgin, Chet, State vice president, North Carolina Victim Assistance Net-
work 29

Kyi, Hon. Jon, a Senator in Congress from the State of Arizona 8

Long-Wagner, Christine, second vice president. Law Enforcement Alliance

of America 25

Pine, Jeffrey B., attorney general, State of Rhode Island 50

Roper, Roberta, director, Stephanie Roper Committee and Foundation, Inc 21

Royce, Hon. Edward R., a Representative in Congress from the State of

California 17

Schmidt, John R., Associate Attorney General, Department of Justice 164

Semel, Elisabeth A., on behalf of the National Association of Criminal De-
fense Lawyers 80

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Feinstein, Hon. Dianne, a Senator in Congress from the State of California:

Prepared statement 14

Greenlee, Ellen, president. National Legal Aid and Defender Association:
Prepared statement 143

Hodgin, Chet, State vice president. North Carolina Victim Assistance Net-
work: Prepared statement 31

Jackson Lee, Sheila, a Representative in Congress from the State of Texas:

Prepared statement 43

Kyi, Hon. Jon, a Senator in Congress from the State of Arizona: Prepared

statement 10

Long-Wagner, Christine, second vice president. Law Enforcement Alliance
of America: Prepared statement 27

Pine, Jeffrey B., attorney general. State of Rhode Island: Prepared statement 53

Roper, Roberta, director, Stephanie Roper Committee and Foundation, Inc.:

Prepared statement 23

Royce, Hon. Edward R., a Representative in Congress from the State of
California: Prepared statement 18

Schmidt, John R., Associate Attorney General, Department of Justice: Pre-
pared statement 167

Semel, Elisabeth A., on behalf of the National Association of Criminal De-
fense Lawyers: Prepared statement 82

(III)



IV

Page

APPENDIX
Material submitted for the hearing 179



PROPOSALS FOR A CONSTITUTIONAL AMEND-
MENT TO PROVIDE RIGHTS FOR VICTIMS
OF CRIME



THURSDAY, JULY 11, 1996

House of Representatives,
Committee on the Judiciary,

Washington, DC.

The committee met, pursuant to notice at 9:40 a.m., in room
2141, Rayburn House Office Building, Hon. Henry J. Hyde (chair-
man of the committee) presiding.

Present: Representatives Henry J. Hyde, Carlos J. Moorhead, F.
James Sensenbrenner, Jr., Greorge W. Gekas, Howard Coble,
Charles T. Canady, Bob Goodlatte, Stephen E. Buyer, Sonny Bono,
Fred Heineman, Ed Bryant of Tennessee, Michael Patrick Flana-
gan, John Conyers, Jr., Charles E. Schumer, Howard L. Berman,
Jack Reed, Robert C. Scott, Melvin L. Watt, Xavier Becerra, Zoe
Lofgren, Sheila Jackson Lee, and Maxine Waters.

Mso present: Joseph Gibson, counsel; Kenny Prater, clerk; Perry
Apelbaum, minority chief counsel; and Stephanie Peters, minority
counsel.

OPENING STATEMENT OF CHAIRMAN HYDE

Mr. Hyde. Ladies and gentlemen, the committee will come to
order. This morning the committee considers proposals for a con-
stitutional amendment to provide rights for victims of crimes. As
everyone who reads a newspaper knows, violent criminals damage
and destroy the lives of innocent victims every day. When law en-
forcement officials arrest and prosecute people accused of commit-
ting violent crimes, those individuals have a wide array of legal
rights, many of which are constitutionally guaranteed. Those rights
protect accused persons against unjust convictions and allow them
to present their side of the story. That is as it should be, and we
are certainly not here to change that.

All too often, however, the criminal justice system overlooks the
legitimate concerns of crime victims. Victims often sit through
criminal trials where the defendant has the protections of the 4th,
5th, 6th, 8th, and 14th amendments, and the courts rightfully pro-
tect these constitutional rights.

On the other hand, the victim who has suffered grievously has
no Federal constitutional rights at all. Crime victims deserve con-
stitutional protections just as accused persons have constitutional
protections. For that reason, I believe the time has come to provide
specific defined rights under the Constitution to crime victims.

(1)



Although some victims in high profile cases are treated with the
dignity they deserve, I think the rights provided in this proposed
amendment may be even more important in the hundreds of crimi-
nal cases we never hear about. This amendment applies to many
kinds of crimes and the victims of all of those crimes desei^e pro-
tection.

Today I want to focus on one group of victims that I am espe-
cially interested in, the thousands of women and children who are
victims of domestic violence every day. For far too long, we as a so-
ciety have stood silently by while domestic abusers have beaten,
tortured, maimed and murdered innocent women and children. The
violent actions of these predators are morally repugnant. Silence
has protected them, but this amendment will empower their vic-
tims.

Specially, this amendment will empower these victims by giving
them knowledge of when they may confront their attackers in
court, by giving them the opportunity to speak in court about the
resolution of the case, by giving them Government protection from
physical harm and intimidation, and by giving them restitution
from their attackers. At last, this amendment will give the victims
of domestic abuse the power they need to call their abusers to ac-
count publicly for their crimes.

We have worked very hard in this Congress to uphold family val-
ues in many areas, and I believe this is another area in which we
can continue to work together to further those values. Senator Dole
endorsed this proposal in a speech in Colorado on May 28, and he
became a cosponsor of S.J. Res. 52 on June 5. Later, President
Clinton added his bipartisan support. I also want to thank Senator
Kyi and Senator Feinstein, the cosponsors of this amendment in
the Senate, as well as Congressman Royce, a long-time champion
of victims' rights for their bipartisan support. I look forward to
working with all of the interested parties to advance this amend-
ment further.

[The bills, H.J. Res. 173 and H.J. Res. 174, follow:]



lA



104th congress
2d Session



H. J. RES. 173



Proposing an amendment to the Constitution of the United States to protect
the rights of victims of crime.



IN THE HOUSE OF REPRESENTATIVES

April 22, 1996

Mr. Hyde introduced the following joint resolution; which was referred to the

Committee on the Judiciary



JOINT RESOLUTION

Proposing an amendment to the Constitution of the United
States to protect the rights of victims of crime.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled (two-

3 thirds of each House concurring therein), That the follow-

4 ing article is proposed as an amendment to the Constitu-

5 tion of the United States, which shall be valid to ail intents

6 and purposes as part of the Constitution when ratified by

7 the legislatures of three-fourths of the several States with-

8 in seven years after the date of its submission for ratifica-

9 tion:



2

1 "Article —

2 "Section 1. To insure that victims of crime are

3 treated with fairness, dignity, and respect, in each pros-

4 ecution by the United States or a State, for a crime either

5 involving violence or for which the defendant can be im-

6 prisoned for a period longer than one year, any victim of

7 the crime shall have the right to receive notice of, and

8 to be present at, every stage of the public proceedings,

9 unless the court determines there is good cause for the

10 victim not to be present; to comment at any such proceed-

11 ing involving the possible release of the defendant from

12 custody, the acceptance of any plea agreement with the

13 defendant, or the sentencing of the defendant; to be in-

14 formed of any release or escape of the defendant; to re-

15 ceive reasonable protection from physical harm or intimi-

16 dation relating to the proceedings; to have the proceedings

17 resolved in a prompt and timely manner; and to have the

18 court order restitution from the defendant upon convic-

19 tion.

20 "Section 2. The rights estabUshed in section 1 shall

21 be made available to victims upon request to the prosecut-

22 ing authority and in the manner provided by law under

23 section 3.

24 "Section 3. The legislatures of the States, with re-

25 spect to a proceeding in a State forum, and the Congress

•HJ 173 m



3

1 with respect to a proceeding in a United States forum,

2 shall have the power to enforce this article by appropriate

3 legislation.".

O



•HJ 173 IH



u



104th congress
2d Session



H. J. RES. 1 74



Proposing an amendment to the Constitution of the United States to protect
the rights of \'ictims of crime.



IN THE HOUSE OF REPRESENTATR^S

April 22, 1996

Mr. Htoe introduced the foUowing joint resolution; which was referred to the

Committee on the Judiciar\'



JOINT RESOLUTION

Proposing an amendment to the Constitution of the United
States to protect the rights of victims of crime.

1 Resolved by th£ Senate and House of Representatives

2 of th£ United States of America in Congress assemhUd

3 (two-thirds of each House concurring therein), That the fol-

4 \ovnn^ article is proposed as an amendment to the Con-

5 stitution of the United States, which shall be valid to aU

6 intents and purposes as part of the Constitution when

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

8 States uithin seven years after the date of its submission

9 for ratification:



2

1 "Article —

2 "Section 1. To ensure that the victim is treated with

3 fairness, dignity, and respect, from the occurrence of a

4 crime of violence and other crimes as may be defined by

5 law pursuant to section 2 of this article, and throughout

6 the criminal, military', and juvenile justice processes, as

7 a matter of fundamental rights to liberty, justice, and due

8 process, the victim shall have the following rights: to be

9 informed of and given the opportunity to be present at

10 every proceeding in which those rights are extended to the

1 1 accused or convicted offender; to be heard at any proeeed-

12 ing involving sentencing, including the right to object to

13 a previously negotiated plea, or a release from custody;

14 to be informed of any release or escape; and to a speedy

15 trial, a final conclusion free from unreasonable delay, full

16 restitution from the convicted offender, reasonable meas-

17 ures to protect the victim from violence or intimidation

18 by the accused or convicted offender, and notice of the

19 victim's rights.

20 "Section 2. The several States, with respect to a

21 proceeding in a State forum, and the Congress, with re-

22 spect to a proceeding in a United States forum, shall have

23 the power to implement further this article by appropriate

24 legislation.".

O

•HJ 174 ra



Mr. Hyde. Because of the large number of witnesses we have
today, other members who may have statements I request that
they put them m the record or give them during their question
tinie. Our congressional panel, Senators Kyi and Senator Feinstein
and Congressman Royce have other commitments, so I do request
that members refram from questioning the congressional panel
o V^^i/h ^?"^ T^^ announce that Associate Attorney General
bchrnidt from the Justice Department is out of town this morning
could not be back until this afternoon. For that reason, we will
hear the testimony of the first three panels. When that is com-
pleted, we will adjourn until 3 p.m., at which time we will recon-
vene to hear from Mr. Schmidt.

I am now pleased to recognize Senator Kyi.

STATEMENT OF HON. JON KYL, A SENATOR IN CONGRESS
FROM THE STATE OF ARIZONA

1, ^'■- ^7^^■■ T^^")" y^"' ,^^- Chairman. Thank you very much for
holding this hearing. I also want to thank you for testifying before
the Senate Judiciary Committee in April with respect to this same
matter. I can say I think that there is almost nothing that this
Congress could do that would be more important before we finish
our session than adopting a constitutional amendment to protect
cnme victims rights. So I very much appreciate your moving this
process forward in the House of Representatives.

Mr. Chairman, the scales of justice are imbalanced. There are at
least eight specifically enumerated rights protecting rights of the
accused in our Federal Constitution. There are none specifying pro-
tections for victims. This imbalance has created a situation which
needs to be rectified. Let me site just one case to illustrate

In my own State of Arizona, Patricia Pollard was brutally at-
tacked, left by the side of the road to die. Her attacker was found
was convicted. But 10 years short of fulfilling his minimum sen-
tence, he was paroled. His victim, Patricia Pollard, was given no
notice. Obviously, if there had been notice to her and an oppor-
tunity to be heard, she would have warned the parole officials and
the judge about his danger to others and to her.

But because he was a bad actor, not long after he was paroled
he was back under arrest again, this time for narcotics violations'
but again, he was to be released. The parole board had considered
a release again, prior to the time he served his minimum sentence
and again without notice to her. This time, however, the Arizona
Constitution had provided, in the interim, an opportunity for vic-
tims to be heard at such proceedings. Someone found out about it
even though no notice was given to Patricia Pollard. She was ulti-
mately given the opportunity to persuade the parole board not to
parole her assailant. As a result, he remained in jail.

!j^^.K^^ ^^^ ^^°^^ ^^^^- ^ s^^^' "Did you fear for your life*?" She
said More importantly, I feared what he would do to others I
would not have been able to live with myself if I had not gone down
to the parole board and told them what he did to me and what he
might do to others." As a result of that, he stayed in jail.

Mr Chairman, we in this country have a long history of protect-
ing the innocent. In fact, we're willing to err to far on the side of
protecting the innocent, we say we're willing to let nine guilty peo-



pie go free so that one innocent person is not convicted. Yet we do
not protect the most innocent in society, those who we have not
been able to protect who have been victimized, and who then tind
themselves victimized a second time in our criminal justice system.

Now our constitutional amendment provides the protections that
you identified in your opening statement. One of the first questions
is why can't this be done by State statute or constitution? I have
two responses to that. The first is simply logical. Would we today
say that it is perfectly adequate to provide for the protections ot
free speech, free press, peaceable assembly, or specific rights for
victims, to a lawyer, to a public trial, to due process, would we be
satisfied to merely put those in statute today? I don t think any ot
us here would be willing to do that, because we know they are fun-
damental rights. .,,/>•.• jc u

Well the same thing is true about the rights of victims, it we be-
lieve they are fundamental, then there is only one place to put
them. That is in the same document at the same level that we have
placed these rights of defendants. i ,17 u

The second answer to the question is specific case law. We have
some history fortunately, of dealing with the 20 States that have
either statutes or constitutional provisions protecting rights of vic-
tims In every case where there is a conflict between the right of
the defendant, which is embodied in the supreme law of the land,
the Federal Constitution, and these protections for victims, natu-
rally the Federal Constitution wins. The victims rights are

trumped. , . „ r\ c .1. •

I will submit for the record a variety of cases. One ot them is
Romley v. Superior Court in my own State of Arizona, where the
court specifically held that the defendant's constitutional right to
due process conflicts with the victims bill of rights, that due proc-
ess is a superior right. Being a part of the U.S. Constitution, it pre-
vails over any provision in a State constitution.

The same thing was found in Johnson v. Texas Department of
Criminal Justice. A district court decision of 1995 in the State of
Texas. There are other decisions from Florida, from Colorado, from
New Jersey, and other States.

Mr Chairman, the bottom line is that providing these protections
only in statute or State constitution does not provide equal and
adequate protection for the rights of victims. Therefore, the follow-
ing rights should be placed in the U.S. Constitution, the right to
be informed of proceedings, to be heard, for a victim to be notified
if the offender's release or escape, to have a final disposition free
rom unreasonable delay, to have the right of full restitution, the
ight to reasonable conditions of confinement or release to protect
he victim from violence or intimidation, and the right of victmis
.0 be notified of their rights so that they can properly be exercised.
Again, Mr. Chairman, I very much appreciate your holding this
hearing, and would just conclude with one final sentence, ihe
chairman introduced two different versions here in the House. Sen-
ator Feinstein and I introduced one version in the Senate. Since
then you and we and the Justice Department on behalf ot the
President, have been working to try to refine the language so that
the version we finally bring to both bodies will be a consensus ver-
sion We are very far along on that path. We don't see any show



10

stoppers. There are minor language changes we are still working
on. But we believe that by continuing to refine the language, by the
time both you and the House and we in the Senate are ready to
proceed, we will have a consensus constitutional proposal that all
of us can agree upon.

[The prepared statement of Mr. Kyi follows:]

Prepared Statement of Hon. Jon Kyl, a Senator in Congress From the State

OF Arizona

introduction

At the outset, I would like to thank the distingiiished chairman of the House Judi-
ciary Committee, Henry Hyde, for holding this hearing on the Victims' Bill of
Rights. In April, Chairman Hyde provided very useful testimony on the amendment
before the Senate Judiciary Committee. I would also like to thank Senator Dianne
Feinstein for her leadership in cosponsoring and championing the amendment. The
amendment is picking up momentum in large part because of her efforts to advance
the cause of victims' rights.

Much has happened in our efforts to pass the Victims' Bill of Rights since the Sen-
ate held hearings. President Clinton and Bob Dole have both endorsed a victims'
rights amendment. Although we don't have many legislative days left in this session
of Congress, the support of the President and Mr. Dole puts the amendment on the
fast track, and improves the chances of a strong bi-partisan vote on it in this legisla-
tive session.

Patricia Pollard

Permit me to recite just one example of why I believe a constitutional right to
protect crime victims is so important.

Consider the case of Patricia Pollard— a woman from my home state of Arizona.

In July of 1974, on a road just outside of Flagstaff, Arizona, Patricia Pollard was
silenced— first by an attacker, and then by the judicial system. Eric Mageary used
the jagged edge of a ripped beer can to inflict deep slash wounds in her body. He
broke her ribs and her jaw. He choked her into unconsciousness and left her for
dead by the side of the road.

Patricia survived. Mageary was convicted and sent to prison Ten years short of
serving his minimum sentence, he was paroled. No notice was given to Patricia. If
given the opportunity, Patricia would have wanted to tell the judge about the crime,
about how dangerous Mageary was, and how a long prison sentence was needed to
protect the comm.unity from this vicious criminal. But the law gave Patricia no right
to be heard, and society paid for its silencing of her. Mageary^ parole was soon re-
voked for serious narcotics violations, and he was back in prison.

In 1990, the people of Arizona amended their state constitution to add a Victims'
Bill of Rights, which established the right of victims to be informed, present, and
heard at every critical stage in their case.

Incredibly, in 1993, in direct violation of Patricia's new constitutional rights, the
parole board voted to release Mageary— again without hearing from Patricia.

But this time there was a remedy for this injustice. An action was filed to stop
the release and force the board to hold another hearing in which Patricia's rights
would be protected. The Arizona Court of Appeals acted swiftly and stopped the re-
lease. The second time around, after the board took the time to hear directly about
the horrible nature of the crime, they voted for public safety and for Patricia, and
kept Mageary behind bars. Without constitutional rights for Patricia, the safety of
the community would have been jeopardized again.

Constitutional rights restored Patricia's voice. Not all Americans have these
rights, and even those that exist are not protected by the supreme law of the land,
the U. S. Constitution. That is why we have introduced a Victims' Bill of Rights to
the U. S. Constitution to extend to victims throughout the country a threshold of
basic fairness. Victims must be given a voice -not a veto, but a real opportunity to
stand and speak for justice and the law-abiding in our communities.



Online LibraryUnited States. Congress. House. Committee on the JProposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 → online text (page 1 of 24)