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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

. (page 11 of 24)
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 11 of 24)
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to a resolution of the case because "their victim" is opposed. Affording victims what is tantamount
to a veto o\er plea negotiations, for example, is contrary to the public good, which must
accommodate a host of important societal interests. It also interferes with the prosecutor's ethical



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responsibilities, including the prohibition that he or she not pursue a criminal conviction which is
not supported by the evidence (no matter how heavily bolstered by victim emotion).

More general data confirms what we know about the California experience. The data on the
over-emphasis upon "victim participation" in plea bargaining, for instance, suggests that it is far
from the panacea that its advocates would lead us to believe. For example, a study of criminal case
settlement conferences found that those crime victims who particpated were, on average, no more
satisfied by the process than those who did not.'

Forgotten Crime Victims: The Wrongfully Arrested, Prosecuted And/Or Convicted

It bears emphasis that whenever the government accuses an individual of crime, at stake is
the conviction of an innocent person. It is already at least a weekly occurence to open our daily
paper or tune into the evening news to learn of another man or woman released after dozens of years
of wrongful incarceration — finally freed because of the exposure of perjured testimony, the
recantation of a jailhouse "confession," or the discovery through new technology (e.g., DNA)
of exonerating evidence. Just last week, three men were released from Illinois' death row, having
spent 18 years in prison for a double murder they did not commit. As one of the men, Kenneth
Adams, rightly said: "'We are victims of this crime too.' ... 'I want people to know that this could
happen to anybody and that's a crime.'" '"



Anne M. Heinz and Wayne A. Kerstetier, "Pretrial Settlement Conference: Evaluation of a
Reform in Plea Bargaining." 13 Law and Society Review, 349, 363 (1979).

A fourth individual, Verneal Jimerson, spent 1 1 years on death row before he was
exonerated. Don Terry, "After 18 Years in Prison. 3 Are Cleared of Murders." N.Y.
Times. Julv3. 1996.



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These are American tragedies. Do we really want to exaccerbate these all too frequent
failures of our criminal justice system — multiplying victims, out of a misguided sympathy for
them? Do we want to return to the days of the Scotsboro Boys and Leo Frank? For instance, in the
notorious Leo Frank case in 1915, an innocent Jewish man was denied a fair trial by a court and jur}
dominated by an anti-Semitic mob, inflammed by victim sympathies. He was lynched.

It should be obvious that the investment of crime victims who understandably have the least
objectivity about the question of guilt with the central, effectively overriding voice in the judicial
process is certain to multiply the number of criminal justice casualties. It unduly and dangeroush'
enhances the risk of victimhood. It increases the danger of wrongful conviction. And it increases
the danger of new crime victimization by actual perpetrators left unprosecuted by vice of the
increased ease by which unfettered victim passion allows the first government target/accused to be
convicted.

This great country of ours deserves a better brand of justice than Leo Frank, the Scotsboro
Boys, Kenneth Adams and his recently exonerated co-convicted, and numerous other wTongfully
convicted (victims) received. Adherence to the Founders' vision of our constitutional democracy
ensures that better brand of justice.

Full Employment For Personal Injury Lawyers Act?

These amendment proposals are a personal injury lawyer's dream come true. They are rife
with litigation-spawning ambiguity. And the ambiguity is un"fixable."

Start with the title, for example. Consider those whom the amendment is intended to benefit:
crime victims. Proponents of the amendment would have this Committee believe that the use of the

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word "victim" is self-defining. But even in providing for mandatory restitution to victims of
offenses under the recently enacted Anti-Terrorism and Effective Death Penalty Act of 1996,
Congress had to craft a highly specific statutory description of the term." The proposed
amendments, H.J. 173 and H.J. 174, contain no such qualifying language. Moreover, even if it were
appropriate to engraft such highly specific terminology onto a constitutional amendment, the
definition would still be inadequate for purposes of achieving the wholesale victim empowerment
envisioned by the proposals.

Indeed, because the term "victim" would be the "key" to a litany of victim entitlements, there
would be endless legal contests over claims of such status and for such entitlements. Thus, the first
judicial issue in every case, standing (that is, who may legitimately stand before the court with a
claim), will itself be a highly litigious battleground.

Who is a victim? Which victims count? While the amendment's supporters might disagree,
many Americans would concur with Kenneth Adams's assertion that he and his two co-defendants
who were released last week after losing 18 years of their lives to wrongful conviction and
imprisonment are indeed victims. Their wrongful convictions and 18-year deprivation of liberty,
were certainly proximately caused by the original crime commission and the passions aroused by
it. What about the wife who finally attacks her husband after years of being brutalized? The woman
who pulls a gun on the man after he stalked and terrorized her relentlessly for months? The
neighbor who torches the crack house to protect his children? Given the levels of domestic
violence, child sexual abuse and drug addiction that plague our nation, it is not at all uncommon to



" Title II. Sec. 204; 18 U.S.C. section 3663A (a)(2).

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be a victim one day and a defendant the next. Likewise, given the numbers of wongtlil accusations
and convictions, many crime victims of today may well be tomorrow's wrongly accused and/or

incarcerated.

When is someone a victim? Under the traditional American system of justice there really
is no victim until it is determined that; (1) a crime was committed; and (2) the defendant is guilty
of the crime. By their sweeping language, H.J. 173 and H.J. 174 immediately rush to give these
complaining witnesses the "victim" label, so that the accused becomes "the perpetrator" at the
inception of the criminal justice proceedings. For instance, in effect seating the complaining
witness at counsel table, he or she has a co-equal position from which to oppose the release of the
defendant on bail. Thus, the government's burden of proof has been lightened; indeed it has been
removed.

The identification of the defendant is nowhere as tricky. At least after the government's
formal charge, it is obvious who the defendant is. As a matter of fact, rightly or wrongly, he or she
is often instantly notorious due to the mere accusation of crime. Was it not in part for this very-
reason that the Founders drafted a Bill of Rights to correct for the abuse of power when the
government targets the individual? As discussed throughout my testimony, by reallocating power
to ambiguous private interests, safeguards of the Fifth, Sixth, Eighth and Fourteenth Amendments
are effectively eliminated by this proposal.

What will our courts make of this amendment, which cobbles together an extraordinan,' mix
of global rights (e.g.. "fairness." "dignity." and "respect"), with a litany of entitlements (e.g.. notice;
presence and comment at most stages of the process; resolution of the proceedings "in a prompt and



12



35-331 - 96 - 4



94

timely manner;" "protection from physical harm or intimidation:" "restitution").'- For instance,
does the constitutional promise of "speedy" proceedings empower the "victim" to effectively run
the court's docket and determine the time in which a case must go to trial, to the detriment of the
prosecution's readiness to present its evidence and the ability of the accused to defend against the
charges?

Further, what would be the "remedies" for breach by the government of these victim
entitlements created by the proposed amendment? A Section 1983, civil rights suit, "overturning"
DeShaney and a long line of Supreme Court cases following DeShaney?'^ For example, when the
county prosecutor fails to notify a victim of a court hearing, is he or she to be subject to suit for
violation of the plaintiff-victim's federal civil rights? As anyone who has passed the first year of
law school knows, injunctions cannot remedy after-the-fact constitutional violations. And there can
be no constitutional rights without remedies.

Certainly this whole new range of entitlements is contrary to the preser\'ation of judicial
independence, the efficient administration of justice, and a Tenth Amendment concern about
excessive "federal" causes of action. The amendment takes traditional and historic state power over
criminal justice matters and federalizes it. both as a matter of procedures and substantive criminal
law. As already discussed, a "victims' rights" amendment would surely produce an increasingly



'- See e.g.. H.J. Res. 173, Section 1.

13 See DeShaney v. Winnebago County Dept. Of Social Sen., 489 U.S. 189. 196 (1989)
(construing 42 U.S.C. sec. 1983. et seq.) ("The Due Process Clauses generally confer no
affirmative right to governmental aid. even where such aid may be necessary to secure
life, liberty, or property interests of which the government itself may not deprive the
individual.")

13



95

litigious society - catrying with it economic costs; and on this scale of "private prosecution" by

"victims," very significant ones at that.

Consider, for example, that the amendment would subject both state and federal

governments to its broad set of "victim rights" and entitlements (e.g., to "reasonable protection").

Conflicts in the interpretation of the amendment's provisions - between state and federal courts and

among the many state jurisdictions - would abound, and a chaotic of body of law invites litigation.

and more chaos." Courts are public resources. And irrational litigation is a great drain on tax

dollars and the economy.

The costs of the federally mandated notice requirements alone - without regard to the

expenses that will flow from other victims' entitlements - are staggering. By its language, these
proposals appear to mandate (without funding) the expenditure of state tax dollars to enforce federal
constitutional benefits. This creation of affirmative duties on the part of the states is surely the "big
government," "welfare state" conservatives have decried.

In short, the distortion of the courts undermines impartiality, judicial administration and the
rule of law to the risk of us all. This open-ended list of promised protections, well-being, and
empowerment to those claiming victim status raises scores of interpretation questions, and no certain
answers. And no amount of "technical" tinkering with amendment language will stave off the
litigation debacle to be spawned by the attempt to offer such rights and entitlements by way of



'' See e.c. Judg: Gerald Bard Tjoflat, "More Judges, Less Justice: The Case Against
Expansion^of the>ederal Judiciary," 79 A.B.A.J. 70 (July 1993) (explaining that when the
law is unstable, parties cannot know what to expect: their rights and entitlements then
depend largely on the "luck of the draw" - "on the trial judge (and ultimately on the
appellate panel).").



14



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constitutional amendment.

We respectt\illy submit that this Committee and the Congress would better serve the people,
including all types of victims, current and potential, were it to order a thorough and objective study
of the costs and impacts of "victims' rights reforms" currently being tested at the state level. Such
a careful study should certainly be undertaken before this Committee moves forward in its
consideration of a federal magnification of the "victims" rights" phenomenon through an amendment
to the United States Constitution.

Judicial Independence: Another Forgotten Victim?

More specific, the proposed amendment threatens not only the rights of the accused and the
system of public prosecution. It also deprives the judiciary of its independence and impartiality, by
aiming to convert judges into "victims' rights" advocate-adjuncts, and courts into "victims' rights"
fora.

The Fifth, Sixth and Fourteenth Amendments guarantee all criminal defendants, in both state
and federal courts, the fundamental rights to a fair trial and an impartial jury. The basic components
of a fair trial include a presumption of innocence; " and the requirement that one accused of a crime
is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced
at trial." The Sixth Amendment requires that our tribunals remain "free of prejudice, passion.



'5 See e.g. In re Winship. 397 U.S. 358, 363 (1970); Coffin v. United States. 156 U.S.
432,453(1895).

" See e.g. Taylor v. Kentucky. 436 U.S. 478, 485 (1978).

15



97



excitement and tyrannical power."''' Without these safeguards, the presumption of innocence so
crucial to a fair trial would be abrogated. And judicial independence ensures these safeguards.

Contrary to disclaimers by "victim's rights" advocates, their participation during a trial is not
a neutral or benign force vis-a-vis the constitutional protections for the citizen accused. Already, the
appearance of large groups visibly identified with the alleged victim inside courtrooms has become
commonplace throughout the country. And often these contingents do not merely observe the
proceedings in a respectful manner, but make themselves known to the judge and jury in a way that
threatens undue influence over the decision-makers. Courts have long held that conduct by victims'
supporters may indeed subvert the presumption of innocence."

CONCLUSION

Sensitivity to the legitimate concerns of victims of crime does not require a constitutional
amendment. To the extent these issues require a federal government response, it could be (and
largely has been) accomplished through straight-forward legislation." Any reforms in this area



'^ Chambers v. Florida, 309 U.S. 227, 236-237 (1940).

" See e.g. Norris v. Risley, 918 F.2d 828, 833, n.5 (9th Cir. 1990) (Boochever. J.)
(Holding that button-wearing NOW "Task Force" advocates, "anxious for a [rape]
conviction." admittedly believing the accused to be guilty even before hearing any
evidence, and seeking a far broader and more active role in his trial in order to "make a
statement" about his presumed guilt, threatened to overwhelm his ability to get a fair trial).
See also State v. Franklin, 327 S.E.2d 499, 455 (W.Va. 1985) (MADD activists).

-' See e.g. Title II, Sec. 204; 18 U.S.C. sec. 3663A (a)(2) ("Justice for Victims" (including
mandatory restitution); 18 U.S.C. sec. 3555 ("Notice to Victims"); 18 U.S.C. sec. 1514
("Civil Action to Restrain Harassment of a Victim or Witness"); 18 U.S.C. sec. 3525
("Victims Compensation Fund"). See also the numerous state and federal provisions
cited and discussed in Professor Henderson's Stanford Law Review article, attached (e.g.,

16



98

should be focused on the states, not the federal government. The overwhelming number of crimes,
especially violent ones, are rightly handled in state court systems.-"

Criminal defense lawyers are fully supportive of legal reforms that would require law
enforcement and prosecutorial agencies to treat crime victims with sensitivity and respect, as well
as those that include restitution as a sentencing option, especially when it is used intelligently, in lieu
of a lengthy sentence for a non-violent offender. However, the greatest good we all can do for
victims is to decrease their numbers. We certainly should not be increasing their numbers, as
these amendment proposals seem sure to do. Rather than wasting our limited tax dollars on a costly
and probably dangerous constitutional amendment process, all Americans would be better served
by careful study. Such a study should include thorough and objective assessment of the costs and
consequences upon our justice system of the current plethora of so-called "victims' rights reforms."
And it should focus on the inevitable costs and consequences of federalizing such measures through
our precious Constitution.





Elisabeth Semel

Co-Chair, Legislative Committee

National Association of Criminal Defense Lawyers (NACDL)



at nn. 308, 3 1 5, 335, 340, 348, 357, and accompanying text).

^° See e.g., Hon. Edwin Meese III and Rhett DeHart, "How Washington Subverts Your
Local Sheriff," Policy Review (Jan./Feb. 1996).

17



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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 11 of 24)