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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

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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 12 of 24)
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141

Mr. Hyde. I thank the gentlelady. We have a vote on. Voting on
a rule. So we will go vote and resume this so we don't stretch you
out over the lunch hour too long. We'll come back as soon as the
vote is over.

I request, I plead with my colleagues to come back so we can dis-
pose of this panel. Thank you.

[Recess.]

Mr. Hyde. The committee will come to order. I'm glad you're
here, Mr. Reed. You enable us to proceed. You have great utility.

Ms. Greenlee, you are recognized.

STATEMENT OF ELLEN GREENLEE, PRESIDENT, NATIONAL
LEGAL AID AND DEFENDER ASSOCIATION

Ms. Greenlee. Thank you, Mr. Chairman. It is my pleasure to
appear today before the Judiciary Committee in my role as presi-
dent of the National Legal Aide and Defender Association, which
is a national nonprofit membership organization dedicated to en-
suring competent legal representation to indigent people in our
civil and criminal justice system.

We are committed to working to preserve an American justice
system that works fairly and effectively for all citizens regardless
of wealth, status or race. We are greatly concerned about proposals
for a victims' rights constitutional amendment which threatens to
bring the American justice system to its knees.

I thank the committee members and Chairman Hyde for holding
these hearings and taking this discussion into the practical realm,
since our Presidential candidates are too busy to focus sharply on
the impacts such offhand proposals from the campaign trail can
have. I hope you will take the time to examine the issues closely,
to look at less dramatic, more realistic, nonconstitutional vehicles
such as statute or Executive order, to accomplish the sought after
protection of victims' rights we all support.

I know you intend to seek input from experts in the criminal jus-
tice system and interested members of the public in order to deter-
mine the costs and impact of a constitutional amendment. Passing
an amendment with the bandwagon rolling as it obviously is from
my observation today, is much much easier than undoing it as we
saw with the hasty, ill-advised passage of the 18th amendment for
national prohibition some years back.

I ask you not to confuse NLADA's opposition to this proposed
amendment with opposition to victims' rights and even reasonable
expansion of such rights. NLADA speaks for poor people, many of
whom are victims, whether they are the injured or the accused.
Rather, we believe that the proposed reforms giving victims greater
access to and involvement in the criminal justice processes, can be
achieved more simply through carefully crafted legislation. At a
minimum, we suggest that nonconstitutional approaches must be
tried and found wanting before a Federal constitutional amend-
ment is locked in forever.

The proposal before you would guarantee to victims the right to
be informed of and present at any stage in the criminal process at
which the defendant would appear, the right to object to a nego-
tiated plea or a release from custody, the right to speedy trial and
a final conclusion free from unreasonable delay, full restitution



142

from the offender, police protection against violence or intimidation
by the accused or convicted offender. We feel there is necessarily
implicit in giving such rights, the additional right to sue the Gov-
ernment to enforce these rights.

What will this mean to those institutions that are part of the
criminal justice system? How will police feel about giving victims
a constitutional right to protection, which no one else in this coun-
try presently enjoys. If such protection from harm fails, will the
victim then sue the police? Won't this detract seriously from the ef-
forts of the police to fight crime?

I can see prosecutors' offices tied in knots. At present, they re-
solve about 90 percent of their cases by agreement, an especially
necessary way of managing overwhelming caseloads in large urban
areas such as Philadelphia. By giving victims a constitutional right
to in effect veto a plea agreement, a case that could be resolved in
an hour will turn into a jury trial that could last a week or two.

In my role as chief defender of the Defender Association of Phila-
delphia, I work in a system which has a State statutory response
to providing rights to victims, including notice of hearings, the
right to be heard at sentencing or at the proposed release of the
defendant from custody, and the right to compensation for injury,
among other rights. This legislation appears to me to work well to
protect victims' rights and is financed by fines and costs paid by
those convicted of crimes, not tax dollars.

The system in Philadelphia would collapse of its own weight if
victims enjoyed a constitutional right to veto a negotiated guilty
plea. We are as underfunded as any indigent defense system and
funded at less than the district attorney's office. We would, at the
Philadelphia Defender alone, face the possibility of at least an addi-
tional 10,000 trials per year after aborted plea negotiations for
which we would clearly need additional staff and millions of dollars
to handle. Of course the judicial system would also be overwhelmed
with cases.

The most important impact probably would be in the corrections
area, where there are currently 5 million people under correctional
control, 1^2 million of whom are incarcerated. This constitutional
amendment would require correctional authorities to start identify-
ing, tracking down, and notifying victims of crimes which may be
decades old, every time any proceeding involving an offender oc-
curs, from setting a release date to deciding whether to revoke an
inmate's television privileges, or place an electronic monitoring
bracelet on a parolee's ankle.

By consuming the time and resources of society's crime fighting
institutions, including police, prosecutors, courts and probation, the
public will be made less safe, and the amount of tEixpayer dollars
spent would be staggering. Why not try the nonconstitutional fixes
before amending the Constitution, and see if they work? For exam-
ple, order all Federal prosecutors, law enforcement agents, correc-
tions and parole officials to notify and consult victims at appro-
priate stages, with severe disciplinary sanctions for failure to do so.
Every State could do the same.

A carefully balanced mandatory restitution statute has already
been enacted at the Federal level. One could do the same at the



143

State level, taking into consideration that 85 percent of those con-
victed of crimes are indigent.

Despite all the serious practical problems with the proposed
amendment, the debate has not yet progressed beyond platitudes
of concern for crime victims. No impact analysis has been con-
ducted by any of the criminal justice system components which
would be effected. Despite legislation on the books mandating cost
assessment of pending crime bills, absolutely no cost inquiry has
been conducted.

We are due to order such a study immediately, not after the rati-
fication process has begun. Mustering the necessary super majori-
ties in Congress and among State legislatures to ratifv this amend-
ment appears to me to be quite feasible. Mustering trie same mar-
gins to vote later to remove protections from victims from the Con-
stitution when the amendment turns out to have been ill-conceived
is utterly out of the question.

I hope you will seriously consider what we have to offer. I thank
you for the opportunity to appear here today on behalf of the Na-
tional Legal Aide and Defender Association.

[The prepared statement of Ms. Greenlee follows:]

Prepared Statement of Ellen Greenlee, President, National Legal Aid and

Defender Association

I am pleased to appear before you today to present the views of the National
Legal Aid and Defender Association regarding proposals to amend the United States
Constitution to guarantee a variety oi new rights for victims of crime. NLADA is
a national non-profit membership organization dedicated to ensuring competent
legal representation to indigent people in our civil and criminal justice systems.
Above all, we are dedicated to preserving an American justice system that works,
fairly and efTectively, for all individuals regardless of wealth, status or race.

We are deeply concerned that the proposals for a victims rights constitutional
amendment threaten to bring the American criminal justice system — in all its incar-
nations, federal, state, local, tribal, military, juvenile — to its knees. We are con-
cerned that the popular and political momentum for the amendment is far out pac-
ing the inquiry into and understanding of the amendment's practical ramifications.
Everybody wants fairness for victims, and this amendment is the fiercest embodi-
ment of that sentiment. But absolutely nobody has yet analyzed the precise impact
of the amendment on the fair and efiective functioning of our criminal justice sys-
tem.

I am here to plead with you to conduct this inquiry now, before Congress approves
the amendment, realizing that passing this amendment is a thousand times easier
than undoing it. NLADA has been studying this amendment for some time, and has
identified a variety of potential problems Tor all the major players in the criminal
justice system, as well as the American public itself. An article by our Special Coun-
sel, Scott Wallace, outlining these concerns appeared in the Washington Post two
weeks ago, and is attached to my testimony for your consideration. But we at
NLADA do not have the resources or the ability to catalogue the amendment's exact
cost, either in terms of dollars, personnel, or the system's basic ability to process
criminal cases and protect the public. This we hope Congress will do, with expert
input from police, prosecutors, courts, corrections, indigent defense, and hopefully,
an objective second look from the victims groups themselves.

Though we oppose this amendment, because we believe it will lay waste to the
criminal justice system which we all serve, we do not say that we oppose any of
its goals. Rather, we suggest that all of its reforms, giving victims greater access
to and involvement in criminal justice processes, can be achieved more directly, and
with far less unintended ancillary mischief, through ordinary legislation or execu-
tive orders. At the very least, we suggest that the nonconstitutional approaches
must be tried, and found wanting, before a federal constitutional amendment is
locked in for all time.

Among the rights which would be guaranteed to victims in every criminal case
in every federal, state and local jurisdiction under H.J. Res. 174, the companion
measure to the leading Senate measure, are the following: the right to be informed



144

of and be present at any stage of the criminal process at which the defendant may
be present; the right to object to a negotiated plea or a release from custody; the
right to a speedy trial and a final conclusion free from unreasonable delay; full res-
titution from the offender; police protection against violence or intimidation by the
accused or convicted offender; and — necessarily implicit since there can be no rights
without remedies — the right to sue the government to enforce these rights.

How will police feel about giving victims a constitutional right to protection from
further violence by their accused attacker? Currently nobody in the nation has a
constitutional right to police protection, and for good reason. The main remedy for

ffovemmental violation of sucn a constitutional right would be a 1983 civil action
or money damages. Suing the police when a crime is committed seems an oddly
misdirected way to fight crime, and an expensive one to boot, given the size of pos-
sible damages awards for egregious injuries.

Prosecutors' offices will be tied in knots. They currently resolve nine out of ten
criminal cases by plea agreement. It is an indispensable way of managing the over-
whelming crush 01 cases, and of inducing cooperation by low-level offenders against
their higher-ups. Letting a victim block a plea agreement turns a case that would
take a few days into a trial that could take a few months. Yet a victim's understand-
able focus on just their own case could confound prosecutors' ability to simulta-
neously juggle the thousands of other cases that they are expected to bring to a sat-
isfactory disposition. Also, vast numbers of government lawyers will have to be di-
verted to defend the lawsuits brought by victims who feel that one or another of
their new constitutional rights have not been adequately attended to; and what hap-
pens when a victim wants a "speedy" trial before the prosecutor is ready to proceed?

Corrections officials won't know what hit them. There are currently about five
million people under correctional control, 1.5 million of whom are incarcerated. The
day this constitutional amendment takes effect, corrections authorities will have to
start identifying, tracking down and notifying victims of crimes which may be dec-
ades old, every time any proceeding involving an offender occurs, from setting a re-
lease date to litigating a habeas corpus petition to deciding whether to revoke an
inmate's television privileges or place an electronic monitoring bracelet on a parol-
ee's ankle. It flies in the face of a key practical underpinning of criminal statutes
of limitations: the logistical difficulty of tracking down witnesses, including victims,
many years afler a crime was committed.

We have heard some sobering specifics from Texas corrections officials. That one
state holds over 500,000 disciplinary hearings per year involving inmates, covering
punishment for something bad the inmate has done, or good time credits for good
Dehavior. This does not include hearings involving ofTenders outside the prison sys-
tem — that is, on probation or parole — and does not include a second large category
of prison hearings, those at which a prisoner's security classification is to be up-
graded or downgraded. Texas officials are trying to estimate the cost not only of
printing and mailing a half million notices every year, but also creating a massive
new computer database, cross referencing offenders with victims, maintaining and
updating victim addresses with enough diligence to avoid being sued, and being able
to automatically generate a notice whenever a hearing is scheduled. A special prob-
lem they identify is when a disciplinary hearing is the result of fighting between
inmates; state law requires the special segregation of the inmates pending the hear-
ing, which adds special burdens on prison space and costs. They anticipate that the
period of this special segregation will have to be increased from the current 48
hours to at least two weeks, to allow time for the notice to reach the victim and
a reasonable opportunity for the victim to respond and make arrangements to at-
tend. As far as I know, they don't have actual cost figures yet on any of this, or
a position on the amendment, but clearly they, and this Committee, would greatly
benefit from a thorough inquiry into this type of unintended complication.

The judicial system will be particularly crippled. Blocked plea agreements will
mean a massive increase in the current 10 percent of criminal cases which require
a full-blown and time consuming trial. Courts all over the country are completely
overwhelmed by their current caseloads. Remarkably, by granting a right to a "final
conclusion free from unreasonable delay" in addition to a "speedy trial," the amend-
ment could open up the possibility of victims suing judges for not wrapping up a
case fast enough — notwithstanding traditional protections of judicial immunity. This
provision would also trump the eMaustive new habeas corpus statute that Congress
spent three decades debating, reintroducing worlds of ambiguity about whether any
delay in correcting a wrongful conviction could possibly be "unreasonable."

And the burdens imposed on the courts by giving victims a constitutional right
to full restitution would be not only massive, but pointless. Over 85 percent of all
criminal defendants are indigent, with no possibility of ever paying restitution, and
restitution is already commonly imposed on the rest. Mandating court proceedings



145

to calculate a victim's damages even where the defendant is penniless would be the
equivalent of adding hundreds of thousands of civil trials to court dockets all across
the land.

Another consequence of mandating full restitution in all criminal cases: Forcing
the nation's probation ofTicers to endlessly pursue uncollectible debts will take them
away from their main job of supervising defendants and ex-inmates. As the Judicial
Conference of the United States warned in opposing blanket mandatory restitution
in Senate hearings last November, there would be a reduced ability of the proba-
tion ofTicer to intervene at early signs of trouble, such as a first use of drugs, [lead-
ing to] greater rates of recidivism and more crime, not less. ... No matter how
noole the cause," Judge Mary Anne Trump Barry testified on behalf of the Judicial
Conference, "there is clearly no sense in wasting taxpayer dollars in futile gestures,
or, worse yet, souandering precious resources and ultimately weakening our war on
crime." Responding to sucn concerns. Congress added alternative sanctions for
indigents to the mandatory restitution statute enacted in the terrorism legislation
just two months ago, which would be overruled by the proposed constitutional
amendment.

Indigent defense systems will also find their workloads massively increased by the
reductions in pleas and the increase in trials. But the funding crisis and staffing
shortages will oe far more severe for indigent defense providers than for the politi-
cally popular branches of the criminal justice system. Annual funding increases for
firosecution and courts nationwide are about six times what indigent defense gets
or drug cases alone, according to the 1996 National Drug Control Strategy, and the
growing gap leaves public defenders increasingly unable to provide the oasic legal
representation that the Constitution requires. Exacerbating this will be demands
under the new amendment for lawyers to represent indigent victims to vindicate
their new rights in the criminal system. In a related vein, mandatory full restitution
regardless oi an offenders inability to pay will force the incarceration of indigents
under circumstances where non-indigent offenders could simply buy their freedom —
an economic discrimination and hitherto unconstitutional result.

By consuming the time and resources of society's crime-fighting institutions, in-
cluding prosecutors, police, courts and probation officers, the public is made less
safe. And the amount of taxpayer dollars spent could be staggering. Consider the
cost of identifying, locating and notifying every victim every time a defendant is in-
volved in any proceeding — including arrest, booking, police questioning, line-up, ini-
tial appearance, preliminary hearing, trial, sentencing, appeal, post-conviction, ha-
beas corpus, all tne way down to routine prison administrative proceedings regard-
ing discipline or privileges such as work release, family visitation or outdoor exer-
cise — and then arran^ng to schedule that proceeding to fit the victim's availability.
Consider the complexity of trying to figure out just who qualifies as a victim of drug
dealing, or a racketeering conspiracy, or a toxic discharge into a river by a corpora-
tion. Add the cost of the extra trials and longer prison sentences when victims op-
pose plea agreements or release dates. Add the cost of more government lawyers
and probation officers. Add the cost of processing the lawsuits by victims whose
rights have been neglected, and the damages ordered to be paid out of public coffers.

All these costs would be multiplied many fold under the other House version, H.J.
Res. 172, which would cover not just violent crime, but the far greater number of
non-violent felonies as well. Afler all, senior citizens defrauded of their life savings
ought to be afforded at least as much protection as a gang member beaten up by
a drug dealer.

Victims themselves may wonder whether all these costs bring much benefit to
them. In fact, the changes will damage the best assistance program victims cur-
rently have: the compensation funds around the country that provide quick mone-
tary help, counseling and support services to victims in the traumatic aftermath of
a violent crime. These funds consist of fines paid by offenders to the government.
Giving restitution constitutional status will give it priority over payment of fines in
the list of the offender's obligations — an express goal declared by the amendment's
primary drafter, corporate lawyer Steve Twist, in testimony in April before the Sen-
ate Judiciary Committee. Because ofTenders rarely have the resources to fully pay
both restitution and fines, the Director of the National Victim Center warned the
Senate in last November's hearings on mandatory restitution, "we have grave con-
cerns over the possibility that full mandatory restitution in all criminal cases may
benefit individual victims in a single case at the expense of the thousands of victims
who are served by [these] victim assistance programs."

In fact, the only clear winners under tne proposed constitutional amendment
would be trial lawyers. When they convince a victim to sue police, prosecutors and
other government agencies for failure to give victims the attention to which they are
constitutionally entitled, they will pocket one third of every judgment. Some may



146

concentrate on the big money, such as failure-of-poHce-protection in cases where re-
cidivism is common and injuries often severe, luce spousal assaults. Others inter-
ested in a steady income from smaller actions could concentrate on failure-to-notify
or speedy -trial or lack-of-opportunity-to-object-to-pleas-or-releases cases. The victims
bar would have lucrative new opportunities, entirely at taxpayer expense.

Associate Attorney General Schmidt has explained the administrations position
that any amendment should prohibit civil actions for damages against government
officials arising out of the amendment's new rights. But the Supreme Court frowns
on rights without remedies. That's why it created Bivens actions for damages di-
rectly under the Constitution. Purporting to close the door on damages actions will
simply force the Court to open another. What other remedy will suffice when, for
example, a woman who has oeen beaten repeatedly by her husband is beaten again,
or killed, in obvious violation of her constitutional right to notice or police protec-
tion? How about where a murder of a family's sole waee-eamer is directly attrib-
utable to a failure to give the constitutionallv mandated notice of a release or es-
cape? Injunctions or mandamus are useless. Disciplinary action against the respon-
sible official is completely inadequate as punishment fcr, in essence, negligent or
reckless homicide. A tort or criminal action against the offender is already available
without amending the Constitution, and in any event would be irrelevant, since it
is the government, not the offender, who has violated the victim's constitutional
rights. Only a civil action for damages against those who violated the victim's fun-
damental constitutional rights can begin to vindicate the rights and compensate for
the injury.

Let me address some of the other arguments the administration has made in its
June 25 endorsement of the amendment:

The President said that while working to amend the Constitution, he wanted to
take executive and statutory action to protect victims rights. Why not try the non-
constitutional fixes before amending the Constitution, and see if tney work? For ex-
ample, order all federal prosecutors, law enforcement agents, corrections and parole
officials, to notify and consult victims at appropriate stages, with severe disciplinary
sanctions for failure to do so. Every state could do the same. Work for a statute re-
quiring that victims who wish to attend the trial be permitted to testify first, includ-
ing allowing videotaping for use later in the trial ii necessary to safeguard defend-
ants' rights. As Associate White House Counsel David Fe in noted at the press brief-


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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 12 of 24)