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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 17 of 24)
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the Senate, we now have an opportunity to establish a national baseline of fun-
damental rights for victims of violent crime through amendment of the Constitution.
We look forward to working with you in drafting an amendment that will realize
the rights of crime victims as effectively as possible, while avoiding any unintended



173

adverse effects. In addition, the Attorney General is particularly concerned that
there be adequate resources provided to States and the federal Government to en-
sure that they can provide these rights to victims in a meaningful way.

We stand at the threshold of an nistoric reform which will correct and enrich our
fundamental law to the benefit of the victims of crime and all Americans. With the
continued spirit of bipartisan cooperation and serious purpose that has character-
ized this amendment process, I have no doubt that we will succeed. In closing, I
can do no better than to note the President's final remarks in his address on this
issue:

Two hundred twenty years ago, our Founding Fathers were concerned,
justifiably, that government never . . . trample on the rights of people
just because they are accused of a crime. Today, it's time for us to mmce
sure that while we continue to protect the ri^ts of the accused, govern-
ment does not trample on the rights of the victims.

Until these rights are also enshrined in our Constitution, the people who
have been hurt most by crime will continue to be denied equal justice under
law. That's what this country is really all about — equal justice under law.
And crime victims deserve that as much as any group of citizens in the
United States ever will.

I would be pleased to answer any questions the Committee may have.

Mr. Hyde. Thank you very much, Mr. Schmidt. Your testimony
has been very helpful. Your staff has been very helpful too. They
were over yesterday briefing us on your remarks and your position.
I am confident that our staff and minority staff and your office,
working with outside organizations like the National Association of
Attorneys Greneral and district attorneys who have some input, we
can come up with the language, a formulation that isn't overkill,
but raises to the dignity of the Constitution, the important rights
of the victim and not let them be superseded by those of the ac-
cused.

Mr, Conyers.

Mr. Conyers. Thank vou. Welcome, Mr. Assistant Attorney Gren-
eral. I am delighted to nave you here. Our staff has been working
with your people. We'll keep our fingers crossed.

I have got questions that I am going to send you. Perhaps we
will be able to sit down as this product takes more definitive shape.

Do you see much difference between 173 and 174?

Mr. Schmidt. I think there are some differences. As I indicated,
the President has not endorsed either one. Indeed, there are al-
ready further versions of the initial Kyi Feinstein version, which
Chairman Hyde also introduced into the House. So there are some
differences. But rather than deal with the differences between
those two, I think what is more important is to try to get to some-
thing that is better than either one and can achieve a degree of
consensus on the part of everybody who is involved in this process.

Mr. Conyers. Thank you very much.

Mr. Hyde. Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman.

Mr. Schmidt, I am a little confused as to exactly what you want
done that can't be done by statute. You talked about a patchwork.
A Federal statute would be a consistent measure. We could do that
quickly, have it over with, and not have to fool with a constitu-
tional amendment and all the problems that would come about, as
you are well aware.

Mr. Schmidt. Well, I don't think there's any way a Federal stat-
ute could deal with the issue as it relates to State criminal proceed-
ings, which is probably the most serious issue. I wouldn't want to



174

claim the Federal system is perfect, but, if anything, it's a step
ahead of where the States are.

Mr. Scott. If you can condition some sufficient funding on com-
plying with the Federal statute.

Mr. Schmidt. You could conceivably start saying that Byrne
money or something will be conditional upon passing statutes. That
will never get you consistency. It will get you a somewhat better
patchwork I would say.

Mr. Scott. What are you trying to get done that can't be done
by statute?

Mr. Schmidt, Achieve a consistent national recognition in every
proceeding, State and Federal, involving crimes of violence of cer-
tain basic rights of victims. I don't think there's any conceivable
way a statute is going to get you there.

Mr. Scott. What are you trying to get done? What is being done
now that you want to change?

Mr. Schmidt. We want to provide notice to victims of court pro-
ceedings, which is not done consistently around the country.

Mr. Scott. Stop right there.

Mr. Schmidt. OK.

Mr. Scott. Can we do that by statute?

Mr. Schmidt. Not by Federal statute, no. There is no way the
Federal Grovernment could pass a statute and mandate that States
give notice to victims in criminal proceedings around the country.

Prior to the Lopez decision, we might have gone a long way with
an expansive view of Federal commerce power, but even that
wouldn't get us all the way. Today it wouldn't get us anywhere
close, because there would be a whole range of State criminal pro-
ceedings that would be beyond the reach of the Federal statute.

Mr. Scott. OK. You are saying you can not do that by statute?

Mr. Schmidt. Not by Federal statute.

Mr. Scott. OK, You mentioned the question of defendants' rights
and victims' rights. If the defendants' rights are jeopardized, we
need a constitutional amendment to even it so the — are you sug-
gesting that a constitutional amendment would jeopardize defend-
ants' rights as they are now in the Constitution?

Mr. Schmidt. No. I do not think it would. I think the only cir-
cumstance where it would come into play that would affect defend-
ants' rights would be in a case, which I think is rare, where there
is some at least potential conflict between the assertion of a vic-
tim's right and the assertion of a defendant's right. If, in those cir-
cumstances, the victim's right is put into the Constitution, then the
court would be required to balance those two rights.

Mr. Scott. And jeopardize a defendant's rights?

Mr. Schmidt. In the vast majority of circumstances, I think it's
possible to achieve a result that doesn't require any ultimate depri-
vation of defendant's rights.

Mr. Scott. OK. What kind of remedies would you suggest for
violation of the constitutional amendment?

Mr. Schmidt. I think the victims themselves need to have the
right to seek redress in court. They would have an enforceable
right in the court that is handling the proceeding. I think that de-
claratory and injunctive relief would be available under Federal
statutes that guarantee constitutional rights.



175

I think the primary things that we would exclude, that the Presi-
dent said he would exclude, would be monetary damage actions,
which I don't think we need and I think would be a mistake, and
we would also exclude any ability to reverse convictions, etc. But
the whole range of nonmonetary relief that's currently available for
violation of Federal civil rights would be available for violation of
these constitutional rights.

Mr. Scott. Injunction? So suppose you have a plea bargain going
forward without notification. What happens?

Mr. Schmidt. There would be no capacity to hold up the proceed-
ing. I think that the victim, however, could go into court and assert
his or her right to be heard. If the court were to refuse to allow
that, they would have a right of appeal. I think if a State court sys-
tem were to systematically refuse to give notice to victims or they
didn't even hear about it and they couldn't assert those rights, you
could go in for declaratory injunctive relief.

Mr. Scott. The victim could come in and get an injunction about
their participation level in a pending case?

Mr. Schmidt. I think if you took a case where a court was delib-
erately refusing to allow a victim to be heard, I think a victim
could probably seek some sort of emergency relief to mandamus or
direct the judge to grant that relief.

I think the more common situation though in States that have
had victims' rights amendments is some form of more general de-
claratory or injunctive relief, where if a court system is systemati-
cally refusing to give notice, they would be directed to do so in a
court action brought by victims or by victims' advocates.

Mr. Scott. And do you have a definition of victim?

Mr. Schmidt. I think there are definitions that exist under var-
ious Federal statutes. The versions of the amendment in their cur-
rent form would leave the precise definition to implementing legis-
lation, to the extent you needed to go beyond the basic elements.

I think for most purposes today, it is defined as a person who is
the subject of the crime, or in the case of murder, other family
members. But it comes up in various contexts. There are defini-
tions that exist.

Mr. Scott. Without a definition in the constitutional amendment
itself, you could not limit its application by statute.

Mr. Schmidt. No. I think the constitutional amendment would be
self-enforcing, to the extent that the definition has certain obvious
characteristics. But I think that to the extent Congress or the
States chose to do so, they might refine the definition of a victim
in the implementing legislation. I think they might have that ca-
pacity.

There is an enforcement power comparable to what exists today
under the 14th amendment to implement the 14th amendment that
would allow Congress in the case of Federal crimes or the States
with respect to State crimes to go further in refining or defining
those terms.

Mr. Hyde. The Chair notes the gentleman's time has expired.
However, it would be my suggestion, Mr. Scott, you have had a se-
ries of important questions, that maybe you do what Mr. Conyers
is going to do, write Mr. Schmidt and get some answers which you



176

could share with us. That would be helpful, if you don't mind. Un-
less you want additional time. Do you?

Mr. Scott. Just one more question.

Mr. Hyde. Surely.

Mr. Scott. You have suggested some reservations about the two
resolutions we have before us. Would it be your suggestion that we
not go forward until we get this straight, resolve some of the ques-
tions that you have and problems that you have with the pending
legislation before us?

Mr. Hyde. If I could intervene. We don't intend to go forward
until we have exhausted our negotiations with the Justice Depart-
ment and with the Senators and everybody, because we want a
product that will sell.

Well, you too, you're an important player, Mr. Scott. You are.

Mr. Watt.

Mr. Watt. Thank you, Mr. Chairman. I understand, Mr.
Schmidt, that you and the administration and some other politi-
cians and some members of the public think that this is important,
but I am not sure I understand why it's important for us to do it
at the Federal level at this point.

There are a number of States, we've heard testimony today, ap-
proximately 20 which have passed these victims' rights statutes,
mostly fairly recently. Some other States are on the verge of pass-
ing them, such as North Carolina, I understand. Quite often, we
allow the States to be the laboratories for determining whether
things work or do not work, the cost, additional cost that is engen-
dered as a result of having victims object to plea bargains and
what have you, that might result in additional trial costs, addi-
tional necessity for judges.

I guess the question I'm asking is, why is this absolutely impera-
tive right here right now from the Federal — I mean, 6 months ago,
I hadn't heard anything about this. Actually, I started reading
about the President being in support of it about a month ago.

What is it that is impelling this urgency about amending the
Constitution of the United States?

Mr. Schmidt. Well I think to a very large extent the timing is
being driven by the victims' advocacy organizations, who have been
working in this area now for a long while, and as you say, have
been successful in some States in passing State constitutional
amendments. I think some 20 States have State constitutional
amendments. Even more have statutes of some sort.

I think one should note that this is totally nonpartisan, nonideo-
logical; it cuts across every conceivable line in terms of its political
spectrum. There is a whole network of groups that advocate on be-
half of victims' rights, ranging from Mothers Against Drunk Driv-
ing to a whole substantial number of groups that advocate on be-
half of victims of domestic violence and so forth. They came to-
gether really late last year and early this year and concluded that
they had reached a point in this process where it was clear that
the patchwork, if I can call it that, of State constitutional amend-
ments and statutes was not going to get us where they believe and
where I believe we need to go. That is a reasonable consistent rec-
ognition of why now rather than 6 months from now or a year from
now. You reach a point, and people reach a point in the process.



177

where they say we're not going to get there any other way, and
there's enough of a critical mass of support to think it's reaHstic to
go forward.

Mr. Watt. To my knowledge or to your knowledge, has any kind
of projection of increased cost and increased burden on the incar-
ceration system that might be associated with not letting people
out because victims object to their bond hearings or parole or has
anybody done any of those kinds of projections to try to figure out
what kind of additional burden we are planning to impose on the
system?

Mr. Schmidt. Well, we have at the Justice Department been try-
ing to look at what the costs would be. Although the costs that you
are referring to, that somehow this amendment would result in
keeping people in jail longer because victims object, I would have
to say if that actually happened, if victims being heard resulted in
different decisions as a result of judges hearing what victims have
to say, that would seem to me to be a cost that we would want to
pay.

Mr. Watt. Well it might and it might not, I mean, you know, it
depends. But it seems to me, we ought to at least know what the
monetary impact is before we impose this additional cost on the
public. We have some laboratories out there that will allow us to
make that kind of determination if we were inclined to take the
time to do it.

Let me ask one more question. I see my time is up, Mr. Chair-
man.

Mr. Hyde. Surely.

Mr. Watt. Given all of this urgency, I am just astonished that
the attorney general and the administration haven't already issued
a set of guidelines to every district attorney around the country,
that at least guarantees victims these rights in the Federal courts.
Has the administration done any of that?

Mr. Schmidt. There are Attorney General guidelines for victim
rights and victim protection which I think come very close to guar-
anteeing what is in this Federal constitutional amendment within
the Federal system. It would not be precisely there, and indeed

Mr. Watt. So we don't need this for the Federal?

Mr. Schmidt. Well, one of the things we are looking at currently
is whether we need to strengthen those guidelines. There's a Fed-
eral statute that deals with victims' rights in the Federal system.
It guarantees various of these rights, but puts it in terms of using
our "best efforts" to achieve them.

One of the things we are actually looking at is whether that stat-
ute, independent of the constitutional amendment process, should
be strengthened to eliminate the "best efforts" law gauge and say
flatly these rights shall be recognized.

Mr. Watt. But all of a sudden all this discretion that we said
that we were giving to the States and because they were such rea-
sonable people and could exercise the level of judgment that they
needed to exercise, independent of our directing them, we're going
to go on the other side of the fence on that now?

Mr. Schmidt. Well, to the extent a constitutional amendment is
passed, of course, three-quarters of the States will have to have
ratified it. So I do not think it's a question of directing the States,



178

so much as it's a matter of the States and the Federal Government
through the amendment process coming to the conclusion that
here's something that we are all prepared to do.

Mr. Watt. Thank you, Mr. Chairman.

Mr. Hyde. Thank you, Mr. Watt.

Well, thank you, Mr. Schmidt. In computing the additional cost
burden that this constitutional amendment might impose on our
structure, you might compare it to the cost burden of dealing with
the jailhouse lawyer suits that proliferate like a snowstorm, and
the habeas appeals that are endless, et cetera, et cetera. So it costs
a lot to have justice. A little justice for the victims to offset some
of the expenditures for the accused or the convicted doesn't seem
to me to be an unhealthy thing.

In any event, we thank you for your testimony. We'll continue to
work with you and with our colleagues to come up with a formula-
tion that as I say, is precisely what we want. Thank you.

Mr. Schmidt. Thank you.

Mr. Hyde. The committee is adjourned.

[Whereupon, at 3:53 p.m., the committee adjourned.]



f. ,



APPENDIX



Material Submitted for the Hearing

STATEMENT OF SFNATOR JON KYL

VirTTMS' Rfr.HTS AMENDMENT

RFFORE THE HOUSE niDTrTARY COMMITTE E

11 .nJLY1996

1. Introduction

I would like to thank Chairman Henry Hyde for holding this hearing, for his work on this
issue and for his strong testimony in April at the Senate Judiciary Committee's heanng on the
victims' nghts amendmem. I would also like to thank Senator Dianne Feinstein for her efforts to
advance the cause of victims' nghts and for her hard - and very valuable - work on the language
of this amendment.

n. Need to protect victims' rights - - scales of justice imbalance4

The scales of justice imbalanced The US Constitution grants those accused of cnme
many constitutional rights For example:

* the right to a speedy trial

* the right to a jury trial

* the right to counsel

■* the right against self-incrimination

* the right to be free from unreasonable searches and seizures

* the right to subpoena witnesses

* the right to confront witnesses, and

* the right to due process under the law.

The Constitution, however, guarantees no rights to cnme victims Victims have
■* No right to be present

* No right to be informed of hearings

* No right to be heard at sentencing or at a parole hearing

* No right to insist on reasonable conditions of release to protect the victim

* No right to restitution

» No right to challenge unending delays in the disposition of their case

* No right to be told if their attacker escapes

This lack of rights for crime victims has caused many victims and their families to suffer
twice, once at the hands of the cnminal, and again at the hands of our justice system

Victims and their families are often treated as inconveniences, ignored throughout the
trial proceedings.

(179)



180



m. Pollard case

Consider the case of Patricia Pollard — a woman from my home state of Anzona

In July of 1974, on a road just outside of Flagstaff, Arizona, Patncia Pollard was silenced
— first by an attacker, and then by the judicial system.

Eric Mageary used the jagged edge of a ripped beer can to inflict deep slash wounds in
her body He broke her ribs and her jaw. He choked her into unconsciousness and left her for
dead by the side of the road

Patricia survived Mageary was convicted and sent to prison Ten years short of serving
his minimum sentence, he was paroled.

No notice was given to Patricia If given the opportunity, Patricia would have wanted to
tell the judge about the crime, about how dangerous Mageary was, and how a long pnson
sentence was needed to protect the community from this vicious criminal But the law gave
Patricia no right to be heard, and society paid for its silencing of her Mageary's parole was soon
revoked for serious narcotics violations, and he was back in prison

In 1990, the people of Arizona amended their state constitution to add a Victims' Bill of
Rights, which established the right of victims to be informed, present, and heard at every critical
stage in their case

Incredibly, in 1993, in direct violation of Patricia's new constitutional rights, the parole
board voted to release Mageary — again without hearing from Patricia

But this time there was a remedy for this injustice An action was filed to stop the
release and force the board to hold another hearing in which Patricia's rights would be protected
The Arizona Court of Appeals acted swiftly and stopped the release The second time around,
after the board took the time to hear directly about the horrible nature of the crime, they voted
for public safety and for Patricia, and kept Mageary behind bars. Without constitutional rights
for Patricia, the safety of the community would have been jeopardized again

Constitutional rights restored Patricia's voice Not all Americans have these rights, and
even those that exist are not protected by the supreme law of the land, the US Constitution.
That is why we have introduced a Victims' Bill of Rights to the U.S Constitution to extend to
victims throughout the country a threshold of basic fairness. Victims must be given a voice -
not a veto, but a real opportunity to stand and speak for justice and the law-abiding in our
communities



rV. Intent of constitutional amendment

The cr;m;«a/ justice system is — as the name implies — focused on the criminal, not the
victim The system is set up to bend over backwards for the defendant The system is governed



181



by the notion that it is better to let 9 guilty people go free rather than imprisoning 1 innocent
person

But when it comes to victims, the system looks the other way

The intent of the victims' rights amendment is to right the balance — to ensure that we
have a new definition of justice . . . one that includes the victim.

State constitutional amendments and federal statutes to protect the rights of victims are
not enough Until victims' are protected by the United States Constitution, the rights of victims
will be subordinate to the rights of the defendant



V. Victims need rights in the federal constitution

(A) If the reform is to be meaningful, it must be in the U.S. Constitution

Some may say, "I'm all for victims' rights but they don't need to be in the US
Constitution The Constitution is too hard to change All we need to do is pass some good
statutes to make sure that victims are treated fairly "

But statutes have not worked to restore balance and fairness for victims The history of
our country teaches us that constitutional protections are needed to protect the basic rights of the
people

Who would be comfortable now if the right to free speech, or a free press, or to peaceably
assemble, or any of our other rights were subject to the whims of changing legislative or court
majorities?

When the rights to vote were extended to all regardless of race, and to women, were they
simply put into a statute?

Who would dare stand before a crowd of people anywhere in our country and say that a
defendant's rights to a lawyer, a speedy public trial, due process, to be informed of the charges,
to confront witnesses, to remain silent, or any of the other constitutional protections are
important, but don't need to be in the Constitution''

Such a position would be rightly subject to ridicule Yet that is precisely what critics of
the Victims' Bill of Rights would tell crime victims. Victims of crime will never be treated fairly
by a system that permits the defendant's constitutional rights always to trump the protections
given to victims Such a system forever would make victims second-class citizens. It is
precisely because the Constitution is hard to change that basic rights for victims need to be
protected in it

Our criminal justice system needs the kind of fundamental reform that can only be
accomplished through changes in our ftindamental law — the Constitution



182

(B) When a conflict occurs, the defendant wins

Consider the following two examples:

1. State ex reL Romley v. Superior Court, 836 P.2d 445, 453 (1992) (Arizona): the defendant
was charged after allegedly knifing her husband in a fight. The defendant then moved to require


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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 17 of 24)