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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 16 of 24)
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168

genius of this country's Founders, and its vitality over the last 200 years is a reflec-
tion not just of that genius but also of the American spirit. Thus, I think all of us
should rightly begin any consideration of an amendment to the Constitution with
caution and even, perhaps, skepticism. But we must not forget that our nation's
Founders themselves anticipated that for a nation to survive and flourish it must
have the ability to change its charter through peaceful, orderly processes. Article V
of the Constitution provides the methods by which the Constitution may be amend-
ed — methods that have been successfully used throughout our nation's history.

Mr. Chairman, as you know, on June 25, President Clinton announced his support
for a Constitutional amendment to protect the rights of crime victims. We in the
Administration believe that such an amendment is the only way to safeguard fully
the rights of victims of crime. Many who oppose a victim's rights amendment claim
that the criminal justice system already adecruately supports victims and protects
their rights, and tnat, to tne extent additional protections are needed, they can be
provided by statute and executive action. We disagree: our national experience is
that victims rights laws already on the books have proved inadequate. We believe
an addition to the Constitution is needed to open the criminal justice system to vic-
tims and to ensure the opportunity for their participation in that system.

President Clinton said it best in his statement of support for the amendment
when he said:

When someone is a victim, he or she should be at the center of the crimi-
nal justice process, not on the outside looking in. Participation in all forms
of government is the essence of democracy.

I have attached the full text of the President's statement and ask that it be included
in the record of this hearing.

I am here today to explain fully why the President and the Administration believe
that the only way effectively to safeguard these rights is through an amendment
to the Constitution, and to share witn you some observations about the content of
such an amendment.

Although I will address both of these issues in greater detail below, I want to
briefly summarize some of our thoughts here. When the President initiated the Ad-
ministration's review of this issue, the President wanted the answers to certain
tough questions: Should the rights of victims to participate in the criminal justice
system be given the same Constitutional status as the right of criminal defendants
to counsel, the right of members of the media to attena criminal trials, the right
of others to demonstrate before the courthouse, and the other rights found in the
Constitution? Is it necessary to amend the Constitution to protect the interests of
crime victims or can we achieve the same level of protection through legislation or
regulation? And, finally, would an amendment provide real rights to victims that
could be enforced or would it simply be a symbolic, but largely empty, gesture? As
you know, based on our answers to these questions, the President and Attorney
General have concluded that the right thing to do is to support an amendment.

As we go forward with the process of developing the text of that amendment, how-
ever, I want to encourage you to keep several principles in mind. First, the amend-
ment should clearly and unambiguously set out what specific rights it is extending
to victims of crime. The President supports an amendment that provides the rights
of victims:

to be told about public court proceedings and to not be excluded from them;

to make a statement to the court, if present, about bail, about sentencing,
and about accepting a negotiated plea;

to be told about parole hearings, and to attend and to speak if present;

to notice when the defendant or convict escapes or is released;

to appropriate restitution from the defendant;

to reasonable conditions of confinement and release to protect the victim
from the defendant; and

to notice of these rights.
Second, the amendment must be carefully crafled to ensure that it does not unin-
tentionally hamper the ability of criminal investigators and prosecutors to do their
jobs. We should never lose sight of the fact that the very best way that those of
us in the criminal justice system can serve victims of crime is to bring the respon-
sible criminals to justice.

Third, an amendment protecting the rights of victims should not deprive those ac-
cused of crime of their rights. We can have a criminal justice system that both re-
spects and protects the victims of crime as well as ensures that those accused of
such crimes receive a fair trial. We cannot accept less.

And finally, all of this must be done in the context of the Constitution. We are
not writing a statute to add to the United States Code that can go on for many



169

pages and resolve every question of application. Each word in an amendment takes
on great significance. In our work together we must choose the words for this
amendment with great care.

THE NEED FX)R A CONSTITUTIONAL AMENDMENT

President Clinton and Attorney General Reno have longstanding interests in and
commitments to the strengthening of rights for crime victims. The President's in-
volvement in this area began with his submission of victim compensation proposals
while serving as the Attorney General of Aricansas. As Governor of Arkansas, he
signed legislation which required notification of victims before parole hearings, es-
taolished provisions for victim restitution, required hospitals to treat sexual assault
victims, and guaranteed the right of victims to be present in the courtroom. Follow-
ing his election as President, this commitment continued through the President's
support in the Violent Crime Control and Law Enforcement Act of 1994 for such
measures as the right of violent crime victims to be heard in sentencing, payment
for testing of sexual assault victims for sexually transmitted diseases, and "full faith
and credit' for protection orders in all states. He also supported reforms to strength-
en restitution for victims in the 1994 Act and in the recently enacted antiterrorism
legislation.

Attorney General Reno has also long been an advocate for treating victims with
respect and dignity. While serving as State Attorney in Dade County, Florida, she
supported amending the Florida Constitution to incorporate a victims' rights provi-
sion. During her confirmation hearings as Attorney General, it was noted that,
while heading an office with hundreds of prosecutors in Florida, she took the time
personally to counsel and provide emotional support to individual victims in her of-
fice's cases.

The President and Attorney General have come to support a constitutional
amendment on the basis of personal experience and after very careful consideration
of whether such an amendment is needed. In addition, extensive review and analy-
sis took place within the White House and the Department of Justice. Along with
the President, we at the Justice Department, as a result of this study, reached sev-
eral important conclusions.

First, unless the Constitution is amended to reflect a commitment to the rights
of victims, there will never be the level playing field for victims in our criminal jus-
tice system to which the President is committed. As the President stated on June
25:

The only way to give victims equal and due consideration is to amend the
Constitution. For nearly 20 years I have been involved in the fight for vic-
tims' rights since I was attorney general in my home state. . . . Over
all those years, I learned what every victim of crime knows too well: As
long as the rights of the accused are protected but the rights of victims are
not, time and again, the victims will lose.

When a judge balances defendants' rights in the Federal Constitution
against victims' rights in a statute or a state constitution, the defendants'
rights almost always prevail. That's just how the law works today. We want
to level the playing field. . . . When a judge balances the rights of the
accused and the rights of the victim, we want the rights of the victim to
get equal weight.

It is important to note that we are not proposing that a victim's rights be given
more weignt than the rights of an accused; we are simply encouraging you to make
sure they are given equal weight. For example, we have found that judges across
the country routinely bar victims of violent crime from attending the trials of the
individuals accused of committing those crimes because of the possibility that the
victim might be called as a witness. If the victims had a constitutional right to at-
tend, those judges would have to respect that right. We would have a level playing
field where each interested party has rights included in the U.S. Constitution.

Second, it is clear that even a coordinated effort to secure victims' rights by other
means inevitably would be fragmentary, uneven and inadequate for the foreseeable
future. While the victims' rights movement has sought legal reforms promoting vic-
tims' rights at the state level for the past two decades, few states have passed laws
that effectively provide for the full range of rights that we think are appropriate.

Even where states have passed strong victims' rights statutes or ratified victims'
rights Constitutional amendments, their efforts have sometimes been undermined
or nullified by judicial decisions. Courts may believe that victims' rights under state
law are inconsistent with the state constitution. Even amending the state constitu-
tion to protect victims' ri^ts only gets over one hurdle, as courts may hold that



170

these rights are trumped by the rights of the defendant under the federal Constitu-
tion. Thus, in a substantial class of cases, such rights of victims as the right to at-
tend proceedings and the right to address the court concerning sentencing have been
reduced to paper promises.

The President illustrated these points in his June 25 remarks:

The wife of a murdered state trooper in Maryland is left crying outside
the courtroom for the entire trial of ner husband's killers, because the de-
fense subpoenaed her as a witness just to keep her out, and never even
called her. A rape victim in Florida isn't notified when her rapist is released
on parole. He finds her and kills her.

Last year in New Jersey, Jakiyah McClain was sexually assaulted and
brutally murdered. She had gone to visit a friend and never came home.
Police found her in the closet of an abandoned apartment; now, her mother
wants to use a New Jersey law that gives the murder victims' survivors the
right to address a jury deciding on the death penalty. She wants the jury
to know more about this fine young girl than tne crime scene reports. She
wants them to know that Jakiyah was accepted into a school for gifted chil-
dren the day before she died. But a New Jersey judge decided she can't tes-
tify even though the state law gave her the right to do so. He ruled that
the defendants constitutional right to a fair trial required him to strike
[the] law down.

The New Jersey Supreme Court, on June 28, struck down this unfair lower court
decision. But until the federal Constitution is amended, this same tra^c series of
events will continue to take place in other states. And regardless of the New Jersey
Supreme Court decision, for the mother of Jakiyah McClain, there is no second
chance to speak at the sentencing of her daughter's killer.

Third, it also became clear during our review of this issue that the rights that
an amendment would secure for victims are the same type of rights that are secured
for others elsewhere in the Constitution. The rights wnich the President believes
should be protected by a constitutional amendment are primarily intended to guar-
antee the ability of victims to participate in proceedings related to crimes committed
against them. These are the types of rights — the rights to participate in our demo-
cratic institutions — that the Constitution has historically been amended to ensure.

The First Amendment guarantees all Americans the opportunity to participate in
the political and social discourse of the nation by protecting the rights of free
speech, free press, peaceable assembly and petition for redress of grievances. The
most fundamental participatory right in a democracy — the right to vote — has been
the subject of no fewer than four constitutional amendments, which have extended
that right to all adults regardless of race, gender, financial means or age.

In the criminal justice context, those accused of committing crimes have the right
to be represented by counsel and the right to confront those witnesses who testify
against them. The public and the community affected by an offense are afTorded im-
portant participatory rights in the criminal justice system through the Constitu-
tion's public trial and jury trial guarantees. It is only the victims of the crime —
those directly affected by the actions of the accused — who do not have specific con-
stitutional rights during a trial.

As the President stated:

Participation in all forms of government is the essence of democracy. Vic-
tims should be guaranteed the right to participate in proceedings related
to crimes committed against them. People accused of crimes have explicit
constitutional rights. Ordinary citizens have a constitutional right to par-
ticipate in criminal trials by serving on a jury. The press has a constitu-
tional right to attend trials. All of this is as it should oe. It is only the vic-
tims of crime who have no constitutional ri^t to participate, and that is
not the way it should be.

Fourth, we concluded that the protection of the rights of victims would not only
be good for victims, it would also oe good for law enforcement. The successful op)er-
ation of the criminal justice system depends on the willingness of victims to report
crimes, cooperate in investigations, and provide evidence at trial. If victims are
treated with the respect they deserve and with an acknowledgement of their central
place in any prosecution, they are likely to be more active and willing participants
in the process.

Many of the rights in the various proposals before you ofTer specific benefits to
law enforcement. If victims are notified of proceedings and allowed to attend, they
will be better able to detect, and inform the prosecutor about, misrepresentations
in testimony by the defendant and defense witnesses. Allowing victims to be heard



171

directly in pretrial release and sentencing proceedings increases the likelihood of
balanced and appropriate decision-making by providing courts with relevant infor-
mation and by impressing on courts that there is an actual human being who is
being threatened by, or who has been harmed by, the defendant. It will undoubtedly
make those decisions more acceptable to the victims and others as well. Notice of
release of the defendant or offender enables the victim to take precautions which
may prevent the commission of further crimes. Restitution furthers penal interests
by impressing on the offender the harm he has caused by his criminal conduct and
holding him financially accountable for that harm.

WHAT AN AMENDMENT SHOULD LOOK LIKE

As I stated earlier in my testimony, great care must be taken in drafting an
amendment to ensure that we satisfy the goals of the amendment without any ad-
verse effects on other parts of the criminal justice system. As the President has put
it, "[w]e want to protect victims, not accidentally help criminals."

The President nas made clear the rights that he feels should be included in such
an amendment and has identified some of the pitfalls that concern him. At this
point, rather than propose actual language, I would like to address central issues
relating to the basic rights as originally identified in H.J. Res. 173 and also H.J.
Res. 174. I should note that we have already shared some of our concerns with the
Chairman, Senator Feinstein, Senator Kyi and others and are heartened by the dis-
cussions to date.

Right to Notice and Attendance. The President supports the right of victims to
have notice of, and not to be excluded from, public court proceedings relating to the
relevant case. This is, of course, the most basic right that should be accorded to vic-
tims of crime but, remarkably, is too often denied such victims. While our criminal
justice system treats criminal activity as an assault on society at large, we cannot
ignore the fact that the impact of those crimes on the victims is often devastating
and is obviously greater than the more diffuse impact on society as a whole. We be-
lieve that victims deserve the right to be informed of and to not be excluded from
attending public proceedings in which society seeks justice for the harm visited upon
them.

It is important that this right be formulated as a right not to be excluded from
proceedings rather than as a more vaguely worded attendance right. This would ac-
complish the essential objective of barring courts from excluding victims because
they might be called as potential witnesses or for some other reason. It would avoid,
however, adverse effects on law enforcement which might result from more ambigu-
ous formulations. Specifically, a right "to attend" court proceedings could hinder suc-
cessful prosecutions if courts interpreted such a provision as requiring that criminal
proceedings be delayed for purposes of victim attendance. Likewise, resource and
safety problems could result from a formulation that could be interpreted to require
the government to transport victims to attend proceedings.

We believe it is also important that this right be defined as a right to attend pub-
lic court proceedings. This will ensure notice and attendance rights for victims in
the vast majority of cases. However, there are extremely limited circumstances in
which criminal proceedings are closed to the public and in which confidentiality is
essential. For example, consider a proceeding for judicial approval of the release
from prison of a cooperating offender to act as a confidential informant. If the victim
of the oflender's crime is a member of a rival crime gang or even a friend of such
a rival gang member, notifying that victim of the proceeding would jeopardize the
contemplated use of the offender as an informant.

Right to be Heard. The President supports the right of victims to be heard by the
trial court concerning the release of the accused, his or her sentence and acceptance
of any negotiated plea, when the victim is present at the proceedings relating to
those determinations. This right provides the most basic form of participation for
crime victims. It is important, however, that this right is one to be heard: it provides
a voice to victims on tnese matters, not a veto. The Department of Justice also feels
it is important that such a provision be formulated as a right for victims to address
the trial court concerning these determinations if present at the pertinent proceed-
ings. Language characterizing allocution as a right for victims wno are present at
the proceedings currently appears in the sentencing allocution right for victims of
violent crimes under Federal Rule of Criminal Procedure 32. Language of this type
would prevent misinterpretations of the allocution right as requiring the delay of
proceeaings if a victim is not present or as creating afnrmative obligations to trans-
port victims for allocution purposes.

Rights Relating to Parole Hearings. The President supports similar rights of no-
tice, attendance, and allocution for victims in parole hearings. Care should be taken



172

in formulating these rights to make it clear that their scope of application is parole
hearings. Prison management and security problems could result from ambiguous
formulations that might be interpreted as requiring notice, attendance, and allocu-
tion rights in relation to non-parole prison disciplinary proceedings which may have
some effect on the date of release.

Right of Notice of Release. The President also supports the right of crime victims
to be given notice of release or escape from custody of the accused or convicted of-
fender. Victims of violent crimes often live in fear of perpetrators seeking revenge
after their release. A right to notice of such release — or escape — ought to be part
of this Constitutional amendment, although again we must be mindful of possible
unintended consequences on law enforcement.

Right to Restitution. The President also supports ensuring victims the right to ap-
propriate restitution from the convicted offender. We all agree that an individual
convicted of a crime should be held responsible for the harm he has caused his vic-
tims. Given the costs and burdens involved in the victims bringing their own sepa-
rate civil suits, the practical choice is usually between awarding restitution as part
of the criminal proceedings or not realistically providing the victim with any possi-
bility of receiving compensation from the offender. Thus, restitution should be an
important element of any amendment.

Right to Protection from the Defendant. President Clinton believes an amendment
should include the right of victims to reasonable protection through the imposition
of reasonable confinement release on the accused or convicted offender. We need to
be careftil that broader formulations of victims' rights not amount to empty prom-
ises or impose unreasonable burdens.

Right to Notice of Rights. People cannot exercise rights if they do not know what
they are. It is accordingly appropriate and important, as the President has indi-
cated, to include in a constitutional victims' rights amendment a requirement that
victims be given notice of the rights secured by the amendment.

Remedies. As I stated at the oeginning of my testimony, a crime victims amend-
ment must be more than a symbol. It must provide for rights that are enforceable.
Accordingly, the President has made it clear that any amendment should be self-
executing, so as to take effect as soon as it is ratified without the need for additional
legislation. Thus, it must create rights rather than simply empower Congress and
the states to enact legislation.

The rights contained in an amendment should also be enforceable in the courts
just as other constitutional rights are enforced. These rights should be enforceable
through injunctive and declaratory relief and other appropriate means that Con-
gress or the states devise.

However, the President believes that a constitutional amendment not provide vic-
tims with a cause of action for damages against government officials or entities re-
sponsible for securing these rights. Victims and their advocates are not in this for
money, but for justice. It is also important that the amendment not provide a basis
for anyone other than the government to challenge a conviction or a sentence. The
purpose of an amendment is to improve the criminal justice system for those who
have suffered at the hands of criminals and not to provide new loopholes for crimi-
nals to exploit.

Finally, some of the proposals include the right to a reasonably prompt trial and
to the timely conclusion of proceedings. There is no question that prolonged proceed-
ings often compound the suffering of victims. That suffering can be greatly increased
when prosecutors and others reiuse to explain the cause of the delays. However,
there are times when delays cannot be avoided or when such delays actually serve
the interests of justice and, ultimately, the victims in criminal proceedings. For ex-
ample, government attorneys may seek delays to ensure time for the adequate in-
vestigation of the crimes or for trial preparation, to seek interlocutory appeals of ad-
verse pre-trial rulings, or to try first related charges brought against a defendant's
accomplices. A particularly complex case such as the World Trade Center bombing
prosecution may require substantially more time to investigate and prepare than
other cases. While such efforts might be considered "reasonable" or "timely" under
these formulations, we are concerned that such a provision not take these basic law
enforcement and prosecutorial judgments away from law enforcement officials. As
I have previously stated, we are open to further discussions on the matter to see
if there is a formulation that alleviates our concerns while still granting meaningful
rights to victims of violent crime.

Mr. Chairman, through your personal efforts and those of your counterparts in


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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 16 of 24)