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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 14 of 24)
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at all. The victims wants this person.

On the other hand, you have the rights of the victim being dealt
away in the dark without the victim having the slightest knowl-
edge, much less anything to say about it. So those two situations
need to be reconciled. We need to give it some thought.

I don't think a victim should be able to enjoin or by objecting or
vetoing a plea bargain. On the other hand, there shoulci be some
objective review, and not just in the State attorney's office. I don't
know, you're never permitted to talk to the judge ex parte, but
maybe in a plea bargain situation, the prosecutor ought to be able
to maybe go into the judge without defense counsel there and just
say "Judge, this is a good agreement." I know how you feel, but you
are selling

Ms. Greenlee. You certainly do know how we feel.

Mr. Hyde. You are selling the judge on the need for the plea bar-
gain that you can't sell the victim on. Let defense counsel go in
there too, ex parte, but somebody with some objectivity has to ap-
prove the plea bargain.

Ms. Greenlee. That's the judge.



153

Ms. Semel. That's the judge.

Mr. Hyde. Yes, but you can't tell — ^you don't want the judge — you
don't want to tell the judge your witness is totally unreliable, nas
a cocaine habit that won't quit. You don't want the other side to
know that. But it's animating your entering into the plea bargain.

Ms. Semel. I think though, Mr. Chairman, just with all due re-
spect, the way that discovery works, the reality is that when we
reach that stage of plea negotiations, the recognition is that both
sides realize the weaknesses or perhaps on both sides. One of the
reasons there is this willingness on the part of the prosecutor is
that he or she recognizes the defense knows the evidentiary prob-
lems.

Mr. Hyde. Well maybe. Maybe not either. Maybe not. There is
a problem. I don't think the victim should be able to unilaterally
enjoin, but they ought to be notified and have a right to express
themselves. That much is certain, it would seem to me in that cir-
cumstance.

But anyway, we're not going to go pell mell ahead and amend the
Constitution. But we are going to look at each of these problems.
I don't think I share with you the preemption that you have for the
accused that the whole Bill of Rights is written for the accused to
protect the accused. I view the victim as every bit as important as
the accused, and I think we have denigrated victimhood, real
victimhood for a long time. They need some parity with the ac-
cused. That's what we're about here. How to fine tune that, so we
don't goof up a system that's delicate to begin with.

But bringing the victims into the courtroom injects emotion. I'd
almost be willing to stipulate to that if counsel would eschew using
a motion in her closing argument. I won't hold my breath for that.

Anyway, Mr. Reed.

Mr. Reed. Thank you, Mr. Chairman.

Attorney General Pine, you have a virtually unique perspective
on these issues since Rhode Island does have a constitution that
contains language affording victims' rights. It also has a statute
implementing those rights. I wonder if you could just briefly outline
the situation in Rhode Island, your experience with it, and perhaps
differences between the Rhode Island experience and the Federal
experience and any other concerns you might have.

Mr. Pine. I appreciate the question, because I think that over the
last decade, I think the Rhode Island experience has achieved a
good balance. I think that it has improved the system and to a de-
gree, improved the public's confidence in the system, because it has
enhanced victim participation.

Our constitutional amendment frankly does not go as far as the
proposed Federal amendments that I have seen. The constitutional
amendment in Rhode Island as passed about a decade ago, talks
about a victim of crime being treated with dignity, respect and sen-
sitivity during all phases, entitled to receive financial compensa-
tion, which is different from the order of full restitution that ap-
pears in the Federal counterpart.

Also, our right to participate in the constitutional framework
talks about before sentencing the victim shall have the right to ad-
dress the court regarding the impact, which the perpetrators con-
duct had. I have seen that expressed in a number of ways. Judges



154

have sometimes cautioned victims not to make a recommendation
as to what they want to see the result be, but merely talk about
the impact which the crime has had on them and on their family.
I think that that is working quite well. I think that victims feel a
sense of recognition through this constitutional amendment and a
sense of participation and respect, I hope so, I'm sure not 100 per-
cent, but I think it has improved greatly.

Our statutory framework, which was implemented to follow the
constitutional principle, is kept I think or particularly broad. I
think that the constitutional framework was designed to be rather
broad so that a specific statute could implement it.

The statute basically talks about the right to be notified from ar-
raignment on, at the time of sentencing, at the time of parole board
hearings. We have a constant continuum of information that can be
provided to victims to be notified about various proceedings. I think
that that too is not either overly burdensome or overly a hindrance
to the process.

We actually in my office, handle the victim notification. We have
a staff of about seven or eight individuals mailing the letters, mak-
ing the phone calls, doing the followup, as well as accompanying
victims to court. It's a staff of seven or eight to cover several thou-
sand cases. They work hard and they are over burdened to some
extent by the workload, but they get the job done. So I don't see
the cost factor as having been a major one over the last 10 years
in our particular department. It therefore differs I think in some
respect from the Federal counterpart, which I think would involve
additional costs that have to be considered. I would caution the
committee to recognize that.

Depending on when you start the process, it's going to involve
additional costs to law enforcement, and also the latter section
about reasonable conditions of confinement or release for the ac-
cused or convicted offender, to protect that victim. I think that that
could have a cost factor as well, which is not present in our struc-
ture.

So I would be careful to explore those two phrases as I see in
the draft version, to consider what costs that might have on law
enforcement, police departments, parole boards, prosecutors, et
cetera.

Mr. Reed. Just a quick followup question. Supposing that a con-
stitutional amendment is adopted at the Federal level, any con-
cerns about the interrelationship with the existing Rhode Island
structure, which is working well by your testimony, I think by my
experience too. I wonder if there's any specific concerns there too?

Mr. Pine. I think there could be. I think for those States that
have some version, but not going as far as the Federal version, the
supremacy issue would come into play. I think for those States that
have nothing, it certainly would come into play.

I am in favor of the Federal constitutional amendment. I think
the principles enunciated are important and should be codified. But
I would be careful about the wording. That's what I alluded to ear-
lier. I think you are hearing from various groups, certainly the Na-
tional Association of Attorneys General having been involved in the
resolution process going back over a decade, wants to be involved



155

in wording that everyone can live with and wants to be at the table
when that occurs.

Mr. Reed. Thank you, General. Thank you, Mr. Chairman.

Mr. Hyde. I might say. General, that we would eagerly welcome
the work product of the association. The time is now.

Mr. Pine. Thank you. We will work with you.

Mr. Hyde. Thank you.

Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman. We have heard a lot
about the protections for the defendants. Those protections are
against overbearing Grovernment, like the Grovernment bringing a
subsequent trial after an acquittal, requiring a speedy trial, protec-
tion against search and seizure. Those are Government actions.
They are also things that probably wouldn't pass if you stuck them
on a referendum or through the normal legislative process.

My policy is that we shouldn't amend the Constitution unless it's
necessary. As I guess the chief prosecutor in your area, what is
your office doing to victims that need constitutional protection that
can't be fixed by statute or Executive order?

Mr. Pine. I am not sure I follow.

Mr. Scott. The problems that you are trying to address with a
constitutional amendment, which of those problems can not be ad-
dressed by statute?

Mr. Pine. I think that a lot of them can be addressed by specific
statutes implementing what we have in our State as an amend-
ment to the constitution.

What I think is important is to recognize the need to have it
codified in the Federal Constitution.

Mr. ScoTT. I mean you kind of speaking in generalities. What is
your office doing to victims that can not be fixed by statute?

Mr. Pine. I think a lot of it can be fixed by statute is my answer,
and has been.

Mr. Scott. Then that would raise a question as to the need for
a constitutional amendment.

Mr. Pine. Right. That is what I was trying to get at.

Mr. Scott. If we have a constitutional amendment, would you
want a provision in there that there would be no remedies, or
should the victims have remedies for violations of the constitutional
amendment?

Mr. Pine. I think that, and again, I'm not speaking for the asso-
ciation, but one of the concerns that was raised and is raised by
prosecutors, is the nature of the remedy. Will there be private
causes of actions for damages against those who violate it.

Mr. Scott. What kind of remedies would you suggest for people
to enforce their constitutional rights by virtue of a constitutional
amendment if this were to pass?

Mr. Pine. I am not sure what the remedy should be.

Mr. Scott. Should there be remedies?

Mr. Pine. I'm not sure that there should. I think

Mr. Scott. Should there be a provision that there be no rem-
edies?

Mr. Pine. I think the draft language that I have seen is some-
thing that at least is a starting point for the discussion, that it
would not provide or give rise to a cause of action for damages, et



156

cetera, et cetera, against any public officials. Some of the drafts I've
seen

Mr. Hyde. Would the gentleman yield just for a second? On the
philosophical question of having a constitutional right that has no
remedy for its derogation, I think that's really almost oxymoronic.
There ought to be some remedy. Now maybe not a specific remedy,
but injunction ought to be available, injunctive relief

We ought to really think about that. We don't want to slow the
process of criminal justice up. But if you have a right that is con-
stitutionally asserted, that ought to be enforceable some way or
other. We have to figure that out. That's where your association
could help us.

Mr. Pine. That is why I think what you put into the specific na-
ture of the rights that you are giving victims, that the wording that
IS choosen is very important. As beyond statement of principle, if
you are giving a right to full restitution, where is the remedy for
that, knowing that

Mr. Scott. Let's get to the specifics. Do you support the constitu-
tional amendment as it is presented before us?

Mr. Pine. Which version? I have seen 173, 174.

Mr. Scott. Either one?

Mr. Pine. I think that— let's get them right.

Mr. Scott. Well let me ask another question before my time
ends up. Do you see litigation possible on who a victim is and who
is entitled to these rights?

Mr. Pine. I think it has to be defined by State statute, as we've
done, to define who is a victim.

Mr. Scott. If you have an insurance fraud case, does everyone
who qualifies as a victim have the right to intervene?

Mr. Pine. I wouldn't think necessarily, no. I think in our State
we have defined it as having suffered personal injury or property
injury to be entitled.

Mr. Scott. You have had insurance fraud, widespread insurance
fraud— well, do you see the individual limitation in either of these
versions?

Mr. Hyde. I'll give the gentleman additional time, because I took
some.

Mr. Pine. No. I have not seen the limitation in those versions.
I have seen it proposed in some other draft.

Mr. Scott. If I could just make a comment. We all agree on the
principle in the policy, but when you put it in a constitutional
amendment, the idea that you would have a constitutional amend-
ment without a remedy really makes the whole idea silly. If you
have a remedy, apparently vou have serious reservations about
what those remedies would be. You wouldn't want an injunction
against the plea agreement. You wouldn't want to have someone
have the right to a hearing as to whether they are a victim or not
a victim and slow up the process. How would you ever enforce this
idea?

It seems to me that what we are trying to get to can be gotten
to if your office would do a better job.

Mr. Pine. I am saying that there may in fact be an appropriate
remedy for egregious violations of the right. I am saying that there
are many situations in which there are good faith efforts by pros-



157

ecutors and law enforcement to comply with the particular man-
date that would not necessarily give rise to

Mr. Scott. If you would go ahead and notify the victims, if you
would treat them other than as a piece of evidence as human
beings, we wouldn't have this problem. We wouldn't need a con-
stitutional amendment.

Mr. Pine. I don't know if it's just us. I think it's the system. I
think the problem for the public is not so much prosecutors as it
is the system in general that they lack confidence in. Part of that
lack of confidence comes from the fact that it is the defendant that
always seems to be getting every benefit and the victim who gets
trampled on.

That is not happening because of prosecution offices. That's hap-
pening because of a very cold system that doesn't treat victims as
humans.

Mr. Scott. You have not been able to point to anything that
couldn't be fixed by statute. Here we are considering a constitu-
tional amendment.

Mr. Pine. I am saying that many of the things can be fixed by
statute. Specific statutes dealing with victim notification can cer-
tainly be implemented. But why not have a principle in the Con-
stitution recognizing the unique status of victims, and recognizing
their right to be heard.

Mr. Hyde. The Chair would intervene, that all the rights of the
accused could be fixed by statute too. But they are in the Constitu-
tion. The dignity of the status, the legal status, the standing in
court of the victim needs to be made parallel.

Mr. Scott. Mr. Chairman, if I could be given about 10 more sec-
onds.

Mr. Hyde. Sure.

Mr. Scott. The whole point of these constitutional amendments
protecting the defendant are that they could not pass — you could
not pass a prohibition against double jeopardy.

Mr. Hyde. You mean that people wouldn't vote for it?

Mr. Scott. They would not vote — if you had evidence

Mr. Hyde. Well, in a democracy that's a real problem.

Mr. Scott. If you had newly discovered evidence and someone
was clearly guilty in a high profile case, double jeopardy would go
out the window in a legislative vote.

Mr. Hyde. We have a great double jeopardy case in Chicago
where a known syndicate killer was found not guilty by the court.
The fix was in. That was established. They reindicted him and he
pled double jeopardy. They said the first trial wasn't a trial. It was
a charade. That has been upheld by the Supreme Court. I think it's
one of the fascinating nuances of double jeopardy.

Anyway, if you are

Mr. Scott. My point is that the constitutional amendments — the
Constitution protecting the defendant are things that are unpopu-
lar, that in my judgment would not be able to be sustained in a
normal majority ruled democratic process. That's why they are in
the Constitution.

The things that would protect the victims could easily pass the
legislative body, and therefore, do not need the status of a constitu-
tional amendment. That's the only point I'm making.



35-331 - 96 - 6



158

Mr. Pine. It's a philosophical question at its root, because if you
believe that people who intentionally thrust themselves into the
criminal justice system by committing serious crimes of their own
volition are afforded all these rights, why are you not giving the
same dignity and respect to those who are innocent victims and
who are being thrust into the system?

Mr. Scott. You haven't said anything that the victims couldn't
get by statute.

Mr. Hyde. I'd like to say to my friend from Virginia that I never
heard those arguments when the ERA was being advanced. I al-
ways felt that the what the equal rights amendment would help
women with was in the Constitution. We didn't need it. No person
shall be deprived of life, liberty or property without due process of
law. Nor shall any person be deprived of equal protection of the
law. What did the ERA do but reiterate that. But I never heard
arguments that we don't amend the Constitution only when it's
necessary on that issue. But God, let's not open that up.

Mr. Becerra. i

Mr. Becerra. Thank you, Mr. Chairman. Actually I've enjoyed '
listening and I'm glad I can pop into the debate.

A quick comment, then I'll ask some questions. I've never known
the Constitution to be known as a document to defend the popular
and uphold those who happen to be with the public's mood at the
time of a debate. The Constitution, as I think the gentleman from
Virginia was trying to point out, has always been there to try to
protect the unpopular. In this case, we're talking about criminal
law, the defendant or the accused. Certainly I think he is correct.
We would never have a chance to get by any popular vote or any
vote of any legislative body, an amendment or a bill, a statute,
which would protect an accused far beyond what I think the gen-
eral public believes would be sufficient for adequate trials, which
unfortunately is not enough in most cases.

Let me ask a couple of questions. Attorney Greneral Pine, I hate
to do this to you, but it was an intriguing question. You didn't
quite give a specific answer. Are there any particular items that
you'd like to have in a constitutional amendment that you don't be-
lieve can be protected through a statute?

Mr. Pine. I think the philosophical statement about the status
that victims have in our society is an important one. I don't know
that that can just be covered by the statute.

From my point of view, you can implement as a practical matter
the principle through a statute. But our Constitution is worded in
such a way, the principles of free speech, the principles of equal
protection are broadly stated.

Mr. Becerra. You are asking or you are saying that you believe
we should elevate a philosophical statement to the status of con-
stitutional protection, because you don't think we can do it through
a statute.

It seems to me a philosophical statement wouldn't have any force
of law, whether it's in statute. I guess it would if it's in the Con-
stitution. But why are we trying to make philosophical statements
in the Bill of Rights?



159

Mr. Pine. Because the Bill of Rights is a statement of the philos-
ophy of this country and the protections that we believe all Ameri-
cans should have. I am simply saying that if you

Mr. Becerra. I would disagree. I don't think the philosophy of
the people of this country is to give, as the chairman may have
pointed out, someone who we know is guilty a chance to escape
punishment because in the first trial there was by some chance, a
person escaped punishment.

Mr. Pine. I disagree. I mean the Framers put that in for good
reason, because they felt that it would be better that one innocent
person or one guilty person go free than an innocent person be con-
victed.

Mr. Becerra. I agree. There was good reason to put that in. It
wasn't a philosophical reason. It was a good reason to protect indi-
viduals and their rights.

Mr. Pine. Let me try to answer it in a different way. I believe
that we go a long way to protecting the rights of people accused
of serious crimes. That is embodied in our Constitution. We do
nothing for the rest of society, as far as I'm concerned, about ac-
cording them the respect and dignity in the criminal justice system
as a matter of right that they deserve. This would accord them that
respect and dignity and participation as a matter of right, as a
matter of fundamental right for that vast majority of Americans
who are either victims or potential victims.

Mr. Becerra. How would you compare the right, if we were to
have a victims' bill of rights in our Constitution, that would say
that the victim is entitled to see a speedy trial administered? How
would you weigh that or balance that compared to an accused
rights to a speedy and deliberate and full trial?

Mr. Pine. I think courts could do that. I think that if there is
a right to a speedy trial or a resolution without delay, however it
is worded, and a victim I think has that right, I think that a court
can balance as it would in any other situation, that right versus
the defendant's right. In fact, as a practical matter, those who are
in the system would tell you that most of the time it is the prosecu-
tion that is banging on the door for the trial, not the defense. Most
of the delay is usually on the other side, for I think delay benefits
the defendant, not the victim.

Mr. Becerra. Ms. Semel, I think you wanted to join in on us?

Ms. Semel. Yes. I did. I wanted to remark that whether or not
you express it philosophically, once you begin to use words like re-
spect, dignity, justice, or protection in a constitutional amendment,
we get back to the problem we had initially, which is, what is the
remedy for the violation of the expression of those philosophically
held rights. Pragmatically, even if we take the speedy trial exam-
ple, if the alleged victim complains that the trial is not proceeding
expeditiously, even to the detriment of the prosecutor's ability to
present and put his case together, we will see crime victims seek-
ing injunctive relief, seeking to force cases to trial before, for exam-
ple, the prosecutor is ready to do so.

Again, with regard to speedy trial issues, we have Federal stat-
utes providing for them. Certainly we have State statutes providing
for them, and may be able to weave into the statute some appro-



160

priate consideration of the interests. We did in the State of CaHfor-
nia, certainly, of alleged victims.

Mr. Becerra. Mr. Chairman, if I can be indulged for just one
last question.

Mr. Hyde. If the gentleman will yield to me, I'll indulge the gen-
tleman. I do agree with what Ms. Semel just said. The exigencies
of a speedy trial could depend on the volume of cases, the availabil-
ity of the lawyer that you choose, who has many other cases ahead
of him, more serious maybe, the need of the defense counsel to get
paid before he goes to trial is sometimes unspoken, but a very co-
gent reason for getting a continuance. It's very hard to get paid
after the conviction comes in.

I think some acknowledgement, even constitutional acknowledge-
ment of the entitlement to a reasonably speedy trial, given all the
circumstances which should be under the control of the court is not
untoward at all. But it shouldn't be with no flexibility or wiggle
room so that cases have to be dismissed if they are not speedily
heard. But there may be good reasons, good and sufficient reasons
why the case can't go ahead today or this week. But the notion that
a reasonably speedy, expeditious trial is everybody's entitlement. I
see nothing wrong with acknowledging that in the Constitution.

Mr. Pine. I would agree with that.

Ms. Semel. Mr. Chairman, again, if the committee takes a look
at the statutes in effect in many States that have taken this into
consideration, it will find this again, that by statute, preference or
priority. For example, in child abuse cases in the State of Califor-
nia,the preference for speedy trials is expressed. I think I would
strongly urge those kinds of statutory changes — so that the direc-
tion of courts can be given guidance with regard to which cases
take priority.


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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 14 of 24)