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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 13 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 13 of 24)
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ing, the ability to do this without a constitutional amendment is already estab-
lisned: current law allows FBI case agents to stay in the courtroom throughout the
trial even if they are going to be called as a witness. A carefully balanced mandatory
restitution statute (i.e., with allowances made for the 85 percent of offenders who
are have no money to pay restitution) has already been enacted at the federal level;
do the same at the state level.

The President and Mr. Schmidt proposed that the amendment should never help
criminals who become victims, or let them slow down the criminal justice process,
or result in the reversal of a criminal conviction. It is indeed common for people who
have broken the law to become victims themselves (e.g., in gang conflicts), and there
is great appeal to drawing some line between "innocent" victims and "guilty" ones.
But wherever that line is drawn, significant problems will be created. If the class
of unprotected, guilty victims is narrowly drawn — e.g., guilt must be in the form of
a criminal conviction for conduct related to the offense of victimization — the door is
open for all types of unconvicted bad characters to claim victim status for the sole
purpose of wasting government officials' time, slowing down the process, or seeking
to provoke a mistrial by intruding too far on the defendant's rights. If the class is
widely drawn — e.g., any criminal record, including arrests or old juvenile ofTenses —
many deserving victims may be excluded based on a previous, relatively insignifi-
cant bad act having no bearing on the present crime. Either way, or if the class is
left undefined, an incentive is created lor the government officials who will be de-
fendants in legal actions by victims, to avoid liability by placing a victim-plaintiff
into the "guilty" class. That is, whenever there is any potentially unsavory aspect
of the victim's past, the government has a reason to put the victim herself on trial.
And even before the litigation stage, someone in every prosecutor's office, police sta-
tion, prison, court or parole board will need to be responsible for sorting out which
victims are too "guilty' to require notification, consultation, protection or restitution.
Denying constitutional protections based on some degree oi badness is a minefield,
and completely unworkable.

The President proposed that the amendment should be self-executing, requiring
no additional legislation. This is impossible. There are too many questions and am-
biguities presented by the subject matter. For example, just who qualifies as a vic-
tim? In a murder, what survivors should have to be notified: close relatives, not-
so-close relatives, gay partners, business partners? In a toxic discharge, is everybody



147

downstream or downwind a victim? In obscenity, drug dealing, treason, or election
fraud, isn't the entire public victimized? What form of notice is adequate? How far
in advance of a proceeding? What to do about full restitution if the defendant is in-
digent? What are the limits of "reasonable" police protection: police budget limits,
the victims' own physical ability to prt)tect themselves, or the degree of likelihood
of injury, and if so, exactly how much likelihood is necessary? To proceed without
implementing legislation would condemn the courts, victims, and the rest of the
criminal justice system to decades of uncertainty and litigation.

Mr. Schmidt said that the goal is not to have victims' rights defeat defendants'
rights, but just to require "a balancing effort which is not required under current
law." It may not be required, but it is certainly possible without a constitutional
amendment. There is nothing in the Constitution currently which prevents this
same balancing effort to be mandated by statute. Thirty states currently do this,
and apparently find the results sufficiently protective of victims to vitiate the need
for a constitutional amendment.

White House press secretary McCurry said that the costs of the amendment could
be absorbed within the criminal justice system without undue burden on taxpayers.
He added, however, that the administration had no actual cost figures but would
"try to check." We believe this is the administration's soundest proposal.

Despite all the serious potential practical problems, the debate has not yet pro-
gressed beyond platitudes of concern for crime victims. No impact analysis has been
conducted by any of the criminal justice system components which would be af-
fected, including police, prosecutors, courts, corrections, probation officers and public
defenders. And aespite legislation on the books mandating costs assessments of
pending crime bills (18 U.S.C. 4047) and unfunded mandates forced by Congress
upon the states (the Unfunded Mandates Act of 1995, P.L. 104—4), absolutely no cost
inquiry has been conducted.

We note that the experience in the 19 states which have adopted their own state
constitutional amendments on victims rights is of limited usefulness as a guide. Pri-
marily because states have no equivalent of 1983 civil actions, or Bivens actions,
to recover damages when a constitutional right is violated by government action, the
state constitutional provisions so far have been treated as mere statements of prin-
ciple that victims ought to be included and consulted more by prosecutors and
courts. A state constitution is far easier to amend, and easier to ignore, than the
federal one.

Most importantly, study is needed immediately, not after the ratification process
has begun. Mustering the necessary super majorities in Congress and among the
state legislatures to ratify this amendment appears today to be quite feasible. Mus-
tering tne same margins to vote later to remove protections for victims from the
Constitution, in the event that the amendment actually turns out to have been a
terrible idea, is utterly out of the question.

I appreciate this opportunity to participate in this momentous debate on behalf
of NLADA. I would be happy to entertain any questions the Committee may have.



148



THE WASHINGTON POST DATE f.-?ff-of



ATtACHMnNT

PAGE A?l




Scott Wallace

Mangling the G)nstitution

The folly of the victims' rights amendment.

Bob Doit ha5 propoted > constitutional amendment creating new
nghts for crane victims, became, as he says without elaboration, "the
president roust be on the side of the victiins." Just this week. President
Ctmton endorsed the idea, too. Cnminal defendants have plenty of
nghts. goes the reasoning, so why shouldn't victims.'

Such an amendnient may seem politically oresisubte. but m faa there is
something m it lor just about everybody to object to. uicluding victims.

Under the leading Senate measure, victims in every federal, state and
local nmsdiction would have the nght to be uiformed of and be present
at any suge of the cnmmal process at which the defendant might be
present. They would be entitled to object to a negotuted plea or a re-
lease from custody. They would be guaranteed a speedy tnal and a con-
clusion free from unreasonable delay: hill resuiution from the offender:
police protection against violence or mtimidation by the accused or con-
victed offender, and — unspoken but essential — some way of enforcuig
ttaoK nghts.

In practice, though, how would police feel about giving victims a con-
sututiooal nght to protection from hirther violence by thew accused at-
tacker.' Nobody in the nauon now has a constitutional nght to police pro-
tection, and for good reason; lawsuits. People unhappy with police
protectioo would sue to get more of it. People injured because there
wasn t enough of it would sue for money damages.

Prosecutors' offices would be ued in knots. They currently resolve
nine out of 10 cases by plea agreement. Lettmg a victim block a plea
agreement means a lengthy tnal. and it takes away a prosecutor's best
tool for inducing cooperauon agauist more senous cnnunals. Forang a
case to a "speedy' tnal before the proiecutioo u ready belps nobody but
the defendant.

Corrections officials wouldn't know what hit them. About 5 million
people are under correctional control. 1.5 miUioo of whom are incarcer-
ated. The day this constitutiooal amendment took effect, corrections au-
thonties would have to start identifymg. tracking down and notifying
vKtans of crimes that ought be decades old every tune any proceedmg
involving an offender occured. from setting a release date to deciding
whether to revoke an inmate's television privileges or place an electron-
ic monitoring bracelet on a parolee's ankle.

The courts pinicularty wouW be cnppled. and not just by bemg
forced to provide more trials faster. By grantmg a nght to a "final con-
clusion free from unreasonable delay' m addition to a "speedy tnal." the
amendment could open up the possibility of a victims suing a judge for
not wrappuig up i case fait enough. It would also trump the exhaustive
habeas corpus sutute that Congress finally has passed to speed up the
review of criminal convKUons. reopeiung worlds of ambiguity about
whether any delay incurred u correcting a wrongful coovictjoa could
pouibly be "unreasonable*

And the burdens imposed on the courts by givuig vKtnns a constitutioo-
al nght to full resntiitun woukl be not only massive but pointless. More
than 85 percent of all criminal defendants are mdigent. with no ability to
pay resntutxm. Yet courts still wouki be required to hokl hundreds of
thousands of hearings to detemuoe who was harmed and exactly bow
much, and to issue i preaie. fair, but completely ii«>ix« order.

Moreover, forang the naoon's probation officers to endlessly pursue
unoiUectible debts would take them away from their num job of super-
vomg defendants and ex-uunates. -

Perhaps the biggest loeers. though, wouU be ordinary Americans.
Given the dram oo tJie tuae and resources of socaety's cnme-fightmg m-
sotutions, indudmg prosecutors. poUce. courts and probation officers,
the public actually would be less safe with such an amendment id force,
Aod tfie amouQi of uxjayer dollars speat could be suggenng.



Consider the cost of identffying. loeatiog and notifying every victim at
Uk hundreds of routine suges of the criminal jusuce system where the
defendant is enuUed to be present — and then arrangmg to schedule the
proceeding to fit the victim's availabUity. Consider the complexity of
trymg to figure out just who qualifies as a victim of crimes such as drug
deahng. racketeenng conspiracy or a toxK disdiarge mto a nver by a
corporauon. Add the cost of the extra trials and longer prison sentences
when victims oppose plea agreements or release dates. Add to this tfie
cost of more government lawyers and probation officers, adjudicating
the complaints of victims' whose nghts have been neglected, and the
damages ordered to be paid out of public coffers.

Oddly enough, the amendment would undermine the best assistance
program victims already have: the compeosauon funds around the coun-
try that provide quick monetary help, counseling and support services ui
the traumauc aftermath of a violent crime. The cnminai fines tfiat fund
these programs would dry up if the Consututioo requires restitutioo to
be fully paid first.

In fact, the only likely winners under the proposed constituuonal
amendment would be trial lawyers. When they persuade a victim to sue
pobce. prosecutors and other government agenaes for failure to give
victims the attention to wtiich they are constitutionaily entitled, they
will pocket one-third of every judgment. Righu without remedies are
meaningless, and money damages are the only possible remedy when
people have been seriously injured because the government violated
tlieir constitutional nghts. [}amages could be enormous for severe uiju-
nes directly traceable to a failure of required police protection, a failure
to Docify about a release or acape, or a lack of opponumty to object to a
plea or a release.

But despite these fairly obvious, and disastrtms. practical ramifica-
tioos. the debate has not yet progressed beyond platitudes of concern
for crime victims. And despite legislatioo on the books mandating cost
assessments of pending crime bills and of unfunded mandates Congress
forces upon the states, absolutely no cost uiquiry has been conducted.

In this fact-free campaign environment, such a politically appealing
sop to victims could pass Congress m a heartbeat Congress shoukl take
a deep breath, count to Nov. 5. and then deade dispassionately whether
the measure menu more careful examination.

TV itnUT u tptcial coututi with the Natumai Ltgai Aid ami
DeferuitT Auocu/um.



149

Mr. Hyde. Thank you very much, Ms. Greenlee. Mr. Berman, you
have been well behaved today, so you get to ask questions.

Mr. Berman. Today is a limiting phrase or a descriptive one?
[Laughter.]

Mr. Hyde. I don't want to push the envelope, as you say.

Mr. Berman. Thank you, Mr. Chairman. I have a few questions.
First to Ms. Semel, you talked about one of the concerns about this
proposal is that it turns the accused into the convicted. But why
in the context of victims' participation in a plea bargain, in stating
objections to a potential plea bargain where the accused is now in
the process of pleading guilty to something? I could see perhaps at
a bail hearing, although I take it the state of the law has changed
somewhat in the last several decades, and the notion of the likeli-
hood of appearing is no longer the sole or critical criterion for de-
termining bail levels or release on bail. But why at a plea bargain
process would you be turning the accused into the defendant?

Ms. Semel. I think first of all, I was speaking somewhat globally
with regard to the pretrial and the trial processes. I do want to re-
mark that you know, in about 1991 at the Bicentennial of the Bill
of Rights, after California had had a victims' rights amendment for
some 10 years, the State Bar commissioned a study to assess atti-
tudes toward the criminal justice system and found that at least
42 percent of those who responded believed the accused was pre-
sumed to be guilty, and he should have the burden of proving his
innocence.

In that 10 years of I think a rather high visibility of the victims'
rights movement, there has been an enormous shift in attitude to-
ward the accused. The injection or the elevation of the victim at the
pretrial and the trial stages I think is highly problematic in terms
of the public's perception and understanding of who the accused is.

With regard to plea negotiations, I think my concerns are some-
what more specific in this way. We have historically in this country
had a public prosecution system, or certainly that's what, thank
goodness, has evolved; in which private concerns have to take a
backseat to the public good and to public justice. Clearly what has
happened and what can happen as a result of regulatory changes
and statutory changes, is that prosecutors, and they certainly do
this in the State of California, will weigh, consider, and factor in
the attitudes and feelings of an alleged crime victim in reaching a
disposition.

But I assure you that if the alleged victim has a seat at the table
in plea negotiations, as a matter of fact when the victim makes a
very public objection to a settlement which may be not only in the
interest of the accused, but in the interest of the public good, and
certainly favored by the prosecutor, that the outcry and the out-
come will be that a judge will reject the negotiated plea because
remember, again, I am being very pragmatic, these are individuals
who stand for election. When publicized protest to a negotiated
plea that may be in the best interests of all is made known, you
will see agreements that are in everybody's interests falling by the
wayside.

I am concerned because again, what it does is it substitutes pri-
vate justice for public justice and public good.



150

Mr. Berman. Let me then just take that issue, because I think
some prosecutors have expressed concern about the plea bargain
aspect of the proposal. I would perhaps ask the attorney general
his feeling here. I mean decisions to make plea bargains as I un-
derstand it, come for several different reasons.

Mr. Pine. Yes.

Mr. Berman. The nature of the victim is factored into it, but is-
sues like the strength of the evidence, the desire to get higher ups
in a criminal organization, to what extent will the victim's ability
to articulate in the courtroom objections to the plea bargain. Vic-
tims and relatives of victims have been articulating objections to a
potential plea bargain outside the courtroom for some time and
have every right to do so. But to what extent will this mess up the
ability to make decisions based on strength of evidence or desires
to get more serious crimes prosecuted?

Mr. Pine. I don't see it as a major hindrance in the process. I
would distinguish between the right to object or to address the
court and the right to veto a potential disposition. I would not want
to see that happen as a result of statute or constitutional amend-
ment. I still believe that it is the people of the state versus the de-
fendant. It is the Government versus the defendant. But I do abso-
lutely believe having said that, that victims have every right to ad-
dress the court on the impact of the crime, to express their desire
as to what they feel an appropriate disposition is, even when it dis-
agrees with the State's position.

I don't think that that ability to articulate in our State has
changed the way in which we do our job professionally, trying to
reach justice in each case. There are many times where a victim
articulates their views, where they object, actually object to the
proposed disposition. But the bottom line is we'll take the heat for
that. We'll do our job in the way in which we best feel it should
be done, recognizing that they have that right to object and to ad-
dress the court.

As a practical matter, most of the time victims are — to have
them involved informs them better, makes them understand the
system, makes them feel more comfortable in the system, and that
voice being heard, even if they disagree I think is an important
part of the process. As a prosecutor, I encourage it, even when they
do disagree.

So I do not see it as a hindrance to the plea negotiation process.
I don't see it as a hindrance to getting a higher up in a particular
kind of case and going up the ladder. I don't see it as a hinderance
to the eventual disposition. There may be a judge who in some
cases doesn't want to take the heat publicly and it could affect that
outcome, but from my perspective, it's an important part of the
process that they object or address the court. But I would not go
so far as to give absolute veto power in the private cause of action
that my colleague here has alluded to.

I do believe it's important as you frame this, to keep in mind it
is the State, the Government, the people of the State versus the de-
fendant.

Mr. Hyde. The gentleman's time has expired. The gentleman
from North Carolina.



151

Mr. Coble. I thank the chairman. I thank you all for being with
us You may recall when the first panel appeared before us, I
shared with Mrs. Roper her comment that many people insist that
the Constitution should not be tinkered with. Don't tinker with the

Constitution. , , t., o i rru- •

Mr. Hyde. Tamper was the word used by Ms. Semel. Ihis is a

tampering.

Mr. Coble. I thought she said tinker. t jj >

Mr. Hyde. It was tamper. I paid particular attention. It didnt
amend it, it tampered with it. o ^, ^

Mr. Coble. Well in any event, tamper. Tamper or tinker, it that
view prevailed, the Constitution would never have been revisited.
So I have no problem going back to the Constitution to make^
think maybe the key word might be frivolous. Don't tamper with
the Constitution in a frivolous manner.

But if anyone believes that a double standard does not apply in
this matter, he or she has been living under a rock for the past sev-
eral years. A double standard applies, and I think it applies to the
benefit, the luxury, if you will, of the accused rather than the vic-
tim I'm not going to get emotional about this, but I go back to our
first panel. Mrs. Roper no longer has the company of her daughter.
Or said the lady from Ohio, Mrs. Christine Long, a victim of rape,
has been emotionally scarred for her entire life. My constituent,
Mr. Hodgin, has the company of his two sons no more. Gone for-
ever. So I do get emotional about this I think.

I think Mr. Chairman, we can also address this issue of trying
to extend additional rights to victims that they no longer— that
they don't have now, or they are not assured of it, I think we can
do that without trampling upon the rights of the accused. 1 dont
see that this is all this difficult to negotiate. I think it could be
done in a rather evenhanded way. . o i. -j

Now having said all that, let me ask you all a question, bet aside
for the moment your subjectivity, whether you are opposed or sup-
port what we're discussing today. Let us assume for the sake ot a
discussion that there will be an amendment. Are there particular
successes or failures in current victims' rights laws with which you
all are familiar that you would like to call to our— or direct our at-
tention to the successes or failures? Start with the gentleman from

Rhode Island. , . t u

Mr. Pine. I think there are particular successes that 1 would mir-
ror with a Federal constitutional amendment. I alluded to it briefly
before I think the right to be heard at the time of disposition or
sentencing is extremely important. I think even where it doesnt
change the outcome, it may be a mandatory sentence in a particu-
lar case, the right of that victim or the family of the victim to be
heard is fundamental I think to our process. It's missing from the
process, and I think it's fundamental as human rights are con-
cerned to have that as part of the process. j ^ j
My concern would be as you word and draft the amendment and
go through that process to be careful at what stage the right to be
present, informed, and heard begins. I think you have to be careful
not to involve that at a preliminary stage, an investigatory stage,
or the grand jury stage even necessarily. But to be informed, noti-
fied and participating once that charge has been brought, once the



152

case is actually a judicial proceeding or public proceeding, I think
would be the starting point when it actually becomes a case. So I
would be cautious about that.

Ms. Semel. May I respond in this way and suggest that to the
extent there are legitimate concerns that need accommodation,
such as the opposition to the release on parole of someone who has
been convicted and sentenced, those can be accomplished by statu-
tory change.

What concerns me in the list of entitlements and benefits con-
tained in this proposed amendment are the unintended con-
sequences that they may bring about. Groing back for just a mo-
ment to the question that Congressman Berman proposed, about
how would plea negotiations be affected. When you confer a series
of rights such as the right to object, there must be a remedy for
the violation of that right. When, for example, an individual, al-
leged victim, is dissatisfied with the plea agreement and has ob-
jected and feels the objection has not been heard and taken into
consideration, you will see the attempt to exert the remedy by way
of injunctive relief and civil litigation. This simply, by the nature
of the rights that you are conferring, both in the general and the
specific, can not be written out of this amendment.

Mr. Hyde. The gentleman's time has expired.

The Chair would interject on this issue of plea bargaining,
there's a real dilemma there. We all are aware of counsel. State s
attorneys who all want to make a great record and they plea bar-
gain everything they can to get a conviction, albeit at a very low
sentence, a low crime. I can conceive of many victims never agree-
ing to a plea bargain. This is the most evil thing in my life and
I want this guy prosecuted all the way. But what they may not
know is the witnesses are lousy, the witnesses aren't available. You
don't trust them. They have things in their background that if they
came out, might destroy the case. So you have competing values.
You have maybe the need for a plea bargain to get something, to
get a conviction, or maybe to get testimony against more important
far-reaching criminals, which may not be the concern of the victim


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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 13 of 24)