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 18 of 24)
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disclosure of the victim's medical records Although the court agreed that the victim is entitled
to refuse such a request under Arizona's Victims' Bill of Rights, it stated that such a refusal may
nevertheless violate the defendant's due process right to a fundamentally fair trial The court
held that when the defendant's constitutional right to due process conflicts with the Victim's Bill
of Rights, the due process is the superior right, and the due process clause of the US
Constitution prevails over the provision in the state Constitution

2. Johnson v. Texas Department of CriminalJustice, 910 F.Supp. 1208 (W.D. Texas, 1995),

on appeal to the Fifth Circuit, in which the district court found that victims' "protest" letters in
parole proceedings were precluded by the equal protection clause of the 14th amendment

Consider also the treatment of victims in the following cases:

3. Florida Juvenile Court (1995): Two individuals were sentenced for crimes concerning the
murder of a 1 5-year-old child The defendants were part of a gang of youths who beat and shot
the victim to death In spite of the notoriety which the case received in the community and the
presence of Florida statutes to the contrary, the parents of the murdered child were not notified
about and did not attend the sentencing of two of the defendants involved in their son's murder

4i People vs. Castaway (Colorado): In this recent murder case, the victim's mother was
subpoenaed and effectively kept out of the courtroom due to a sequestration order She was
never called to testify The prosecutors never once asked that she be permitted to stay in the

VI. Cost

The experience in Arizona is that the costs are modest. For example, the cost of mailing
notices to victims of various proceedings was less per year than the cost of one entry-level

Surely this is not to high a price to ensure basic justice for crime victims


Vn. Text

Before the amendment was introduced, the text was redrafted many times In April,
Senator Feinstein and I — and Chairman Hyde ~ introduced the amendment, knowing that the
language would need to be continue to be reworked In the last few months. Senator Feinstein
and I have worked closely with such diverse scholars as Professors Larry Tribe and Paul Cassell

We have also worked with the Department of Justice, law enforcement, the major
victims' rights groups And we have worked with Senator Hatch and, of course. Chairman Hyde

The introduced version — and the most recent draft — contain the nghts that we believe
victims should have

The right to be informed of the proceedings

The nght to be heard

The right to be notified of the offender's release or escape

The right to a final disposition free from unreasonable delay

The right to full restitution

The right to reasonable conditions of confinement or release to protect the victim from
violence or intimidation

And the right of victims to be notified of their rights

The language describing these rights has changed — and I continue to welcome
suggestions on ways to improve the language But it is clear that these rights are necessary
They are the core of the amendment. I believe that we are close to a version that can be voted on
by the House and Senate

The present language for each of these clauses is as follows

• Informed: "To be informed of and not to be excluded from any proceeding involving a
release from custody or any public proceeding in which those rights are extended to the
accused or convicted offender "

• Heard: "To be given the opportunity to be heard if present, or to submit a statement, at
any proceeding involving a release from custody or sentencing, including the right to be
heard regarding a previously negotiated plea"

• Notified of release or escape: "To be informed of any release or escape"


• Timely disposition: "To a final disposition free from unreasonable ciela>"

• Restitution: "To an order of full restitution from the convicted offender"

• Protection: "To reasonable conditions of confinement or release for the accused or
convicted offender"

• Notice: "To notice of their rights"

Again, I would like to thank Chairman Henry Hyde for holding these hearings and
allowing me to testify



of the


United States Post Office & Counhouse

WitoT^ Post Office Box 999

"-'^^*^ Newark. New Jersey 07101-0999

Honorable Joseph Anderson

Honorable Richard J Arcara {201iM5-2!?'

Honorable Richard H Bane>

Honorable Thomas R Bren

Honorable Monon A Brody FACSIMILE

Honorable Charles R Butler, Jr

Honorable J Phil Gilben (201iM5-66:s

Honorable George P Kazen

Honorable David D Noce

Honorable Gerald E Rosen

Honorable Stephen V Wilson

Honorable Maryanne Trump Barry

Julv 17, 1996

Honorable Henr. J. Hyde


Committee on the Judiciary

United Slates House of Representatives

2138 Raybum House Office Building

Washington. D.C. 20515

Re: Victims of Crime Constitutional Amendment

Dear Chairman Hyde:

Enclosed is a letter I sent yesterday to Senator Joseph R. Biden. Jr. in response to his
request for the views of the Committee on Criminal Law of the Judicial Conference of the United
States regarding the proposed "Victims of Crime Constitutional Amendment." The letter
specifically comments upon S.J. Res. 52. However, in view of the similarities between that
proposal and the two versions of this amendment introduced by you earlier this year,
H.J. Res. 173 and H.J. Res. 174, it appeared that many of our comments might be of use to you
and the members of the House Judiciary Committee, as well.

While the Conference has taken no position on this amendment, there are several aspects
of these proposals that the Committee encourages Congress to carefully review prior to any final
action. As our letter sets forth, the most careful review is essential because, as a modification to
the nation's fundamental criminal law, the amendment has potential implications of a substantial


Honorable Henn J. Hyde
July 17. 1996
Pace 2

If you have any questions regarding the matters discussed in the enclosed lener. please do
not hesitate to contact me. I may be reached at 201/645-2133. If you prefer, please have your
staff contact Dan Cunningham. Legislative Counsel at the Administrative Office of the L.S
Courts Dan mav be reached at 202/273-1 120.


Mary arm
United S

rump Barr>'
s District Judge


Chair, Committee on Criminal Law


Honorable Carlos J. Moorhead Honorable John Conyers. Jr.

Honorable F. James Sensenbrenner, Jr. Honorable Patricia Schroeder

Honorable Bill McCollum Honorable Barney Frank

Honorable Geroge W. Gekas Honorable Charles E. Schumer

Honorable Howard Coble Honorable Howard L. Berman

Honorable Lamar S. Smith Honorable Rick Boucher

Honorable Steven Schiff Honorable John Bryant

Honorable Elton Gallegly Honorable Jack Reed

Honorable Charles T. Canady Honorable Jerrold Nadler

Honorable Bob Inglis Honorable Robert C. Scott

Honorable Bob Goodlatte Honorable Melvin L. Wan

Honorable Stephen E. Buyer Honorable Xavier Becerra

Honorable Martin R. Hoke Honorable Zoe Lofgren

Honorable Sonny Bono Honorable Sheila Jackson Lee

Honorable Fred Heineman Honorable Maxine Waters
Honorable Ed Bryant
Honorable Steve Chabot
Honorable Michael Patrick Flanagan
Honorable Bob Barr



of the


United States Post Office & Courthouse

Post Office Box 999

Newark, New Jersey 07101 -0999


Joseph Andcnon
Richard J Arcara
Richard R Baocy
Thomu R. Brrtl
Morton A. Brody
Charles R. Buller. Jr.
J Phil Gilbert
George P. K^zcn
Oavid D Nooc
Gerald E. Roacn
Stephen V Wilion

{201)64 5.-6626

Honorable Marytnnc Trump Barry

Honorable Joseph R Biden, Jr.

Ranking Member

Committee on the Judiciary

Umted States Senate

SD-148 Dirksen Senate Office Building

Washington, DC 20510

July 16, 1996

Re: S. J. Res. 52. the Victims of Crime Constitutional Amendment

Dear Senator Biden

You have expressed interest in the views of the Committee on Criminal Law of the
Judicial Conference of the United States regarding S. J. Res 52, the proposed "Victims of Crime
Constitutional Amendment " As Chair of the Committee, I write to thank you for the opportunity
to comment upon this proposal.

We in the judiciary recognize that the weighty decision to amend the Constitution is a
policy matter of surpassing importance which must be made by Congress and the states alone
Article V of our Constitution makes no provision for the federal courts in this endeavor
However, federal judges do have a unique perspective that stems from the application of the
nation's laws in our courtrooms every day It is our hope that the observations we offer here will
be of use to you and the other members of the Senate Judiciary Committee as you consider the
proposed amendment.

While the Conference has taken no position on S. J. Res. 52, there are several aspects of
the amendment that the Cominittee encourages Congress to carefiJly review prior to any final


Honorable Joseph R Biden. Jr
July 16, 1995
Page 2

action The most careful review is essential because, as a modification to the nation s fundamental
criminal law, the amendment has potential implications of a substantial magnitude

If enacted, the amendment would represent a significant change in our cnminal justice
system, literally re-aligning the interests of defendants and victims, as well as the process bv which
cnminal cases are adjudicated Unlike the nghts and protections afforded to citizens under the
Constitution, which were largely pan of the fabric of the law well-known and understood by the
Founding Fathers, many of the concepts embodied in this amendment are wholly untned and
untested, at least in the federal system, and will inevitably take years, if not decades, to evolve
into a settled body of law and judicial administration Indeed, it is partly this uncertainty that
motivates us to urge Congress to consider, at least initially, promulgating these nghts statutorily,
as discussed below

Although some ambiguity in an amendment such as this is most probably unavoidable, this
proposed amendment contains a significant number of provisions that raise flindamental issues of
interpretation that will be extremely difficult for both federal and state courts A few examples,
essentially by way of questions, will illustrate the point.

While the amendment confers upon a "victim" a host of rights and protections, it provides
no definition for the term "victim " If a defendant is charged with distributing crack cocaine in a
housing project, are all residents "victims?" If the crime is public comiption, are all citizens
"victims';*" In the case of a corporate polluter guilty of discharging toxic chemicals into the air in
a large metropolitan city, who constitutes a "victim'^" In the case of a murder, does "victim"
include an aunt of the deceased? Would it include the deceased's life insurance company? It is
imponant to note that this issue is not merely rhetorical, as the amendment provides Congress and
the states with the authority to define any cnme as coming within its terms Additionally, the
current wordmg of the amendment automatically includes a "crime of violence" but does not
define that term, which has more than one meaning under federal law

Since the amendment, by its own terms, applies "throughout the criminal, military, and
juvenile justice processes," does the victim's right "to be informed of and given the opportunity to
be present at every proceeding in which those rights are extended to the accused or convicted
oflfender" apply to prison administrative disciplinary proceedings concerning the revocation of an
inmate's outdoor exercise privileges? If the victim resides far fi^om the forum in which the case is
heard, what is a court's obligation to coordinate its hearing schedule with the victim's availability?
Indeed, if the victim has a constitutional right to be present at each such proceeding, what
obligation has the govemmenf to provide transportation to an indigent victim?

Is the victim's "right to object to a previously negotiated plea" binding upon the court? Is
it merely advisory?


Honorable Joseph R Biden, Jr
July 16, 1995
Page 3

How can courts enforce the victim's right to a speedy tnaP Under the current Speedy
Trial Act, 18 U S C §§ 3161 - 3174, an unwarranted delay can result in dismissal of the charges
If this amendment is adopted, and a fliture tnal is not speedy, what relief would the victim
receive^ A new trial'' An intenm appeal? Could a victim file a motion to enjoin further evidence
gathenng and force the tnal to begin? Would this mean forcing prosecutors to begin trying cases
before they have completed their investigations'?

Does a victim's right to a "final conclusion fi-ee fi-om unreasonable delay" conflict with a
defendant's nght to file a motion under 28 U.S.C. § 2255 or a habeas corpus petition'' What

would be the effect of a case such as United States v Bailev. U.S. , 1 16 S. Ct. 501,

133 L. Ed. 2d 472 (1995), which overturned the convictions of persons convicted under an
erroneous interpretation of the law? If this proposed amendment is enacted, would all previously-
convicted defendants be barred fi-om invoking their rights to challenge their convictions^)ecause
of a countervailing right to a "final conclusion?"

Does the mandatory restitution clause contained in the amendment supersede the
mandatory restitution requirements recently enacted as part of the Antiterrorism and Eflfective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214'? Is the right absolute in ail
cases, unlike current mandatory restitution provisions'? How should courts interpret this clause in
cases in which the defendant is indigent?

How quickly af^er a crime does the victim's right to "notice of the victim's rights" attach?
Since the amendment applies, by its own terms, "fi-om the occurrence" of the crime and
"throughout" all the proceedings, is someone in the criminal justice system responsible fi-om the
moment the cnme is committed not only to identify but to contact all victims? Who would be
responsible for performing this fimction*? Law enforcement agencies'? United States Marshals?
Magistrate Judges? What are the rights of a victim who appears at a later stage of the
proceedings and protests lack of earlier notification'? What would the effect be on the
proceedings already concluded by that time?

Although alluded to at several points previously in this letter, the issue of victim
enforcement of the rights contained in the amendment is perplexing. If a victim believes that his
or her rights are being compromised in a case, can the victim appeal immediately, or would the
victim be required to wait until the end of the trial? At that point, what relief would the virtim
seek? What are the double jeopardy implications'? Which of the many possible violations of the
new constitutional rights will give rise to an action under 42 U.S.C. § 1983, a Bivens action, or
any other damage suit against the federal or state governments, their agents and employees?

The questions raised here give some idea of the substantial implications the amendment
would have for the courts, indeed, the terms of the amendment raise a panoply of issues which
will almost certainly result in years of vexing, difficult litigation. Moreover, the issues raised here

35-331 - 96 - 7


Honorable Joseph R Biden, Jr
July 16, 1995
Page 4

do not explore the perplexing issues presented by the amendment to law enforcement and other
governmental agencies

In light of the serious questions raised, we urge that Congress approach the consideration
of this amendment with utmost prudence and caution Such sweeping changes in our cnrrunal
justice system should not be accorded anything less than thorough, exhaustive deliberation As
part of this process, it should be noted that virtually any or all of the rights enumerated in this
amendment could be applied to the federal system by means of a statute Indeed, Congress has
already provided for certain victim rights under current law. See, e.g.. 42 U.S. C § 10606 (1995)
(passed as part of the Victims' Rights and Restitution Act of 1990, Pub L. No 101-647, 104
Stat 4820 (codified as amended in scattered sections of 42 U.S.C.)) See also Fed. R Cnm P
32(c)(3)(E), (f) Congress may wish to seriously consider initially promulgating these Rghts
statutorily as opposed to talcing immediate action by amending the Constitution Forexample,
Congress might wish to strengthen the provisions contained under 42 U S.C § 10606 (a) A
prudent step such as this would much more easily accommodate any "fine tuning" deemed
necessary or desirable by Congress. It would also allow the federal courts to gam some
experience with the rights and principles embodied in this amendment prior to the incorporation of
these rights and principles into our nation's fundamental legal document and their concomitant
application to the state systems

Once again, I thank you, on behalf of the Committee, for the opportumty to share with
you these observations regarding this amendment. If you have any questions regarding the
matters discussed herein, please do not hesitate to contact me. I may be reached at 201/645-
2133 If you prefer, please have your staff contact Dan Cunningham, Legislative Counsel at the
Administrative Office of the U.S. Courts. Dan may be reached at 202/273-1 120.


.JL^lti) P*AAy

MaiyannM"rump Barry • * ▼

United States District Judge
Chair, Committee on Criminal Law


Honorable Joseph R Biden, Jr
July 16, 1995
Page 5


Orrin G Hatch, Chair
Strom Thurmond
Alan K Simpson
Charles E Grassley
Arlen Spector
Hank Brown
Fred Thompson
John Kyi
Mike DeWine
Spencer Abraham

Honorable Edward M Kennedy
Honorable Patnck J Leahy
Honorable Howell Heflin
Honorable Paul Simon
Honorable Herb Kohl
Honorable Dianne Femstein
Honorable Russell D Femgold




Roger Pilon, Ph.D., J.D.

Senior Fellow and Director

Center for Constitutional Studies

Cato Institute

Washington, D.C.

before the

Judiciary Committee
United States House of Representatives

July 11, 1996

Mr. Chairman, distinguished members of the committee:

My name ie Roger Pilon. I am a senior fellow at the Cato
Institute and the director of Cato's Center for Constitutional
Studies .

I want to begin by thanking the committee for inviting me to
testify on H.J. Res. 174, a proposed constitutional amendment to
protect the rights of victims of crime. I am especially grateful
that you have allowed me to submit a written statement m lieu of
oral testimony as I have been unable to adjust my schedule to
appear in person.

Although I am opposed to the proposed amendment, I want to
make xt very clear at the outset that I am in complete agreement
with Its larger aims. We need to do far more than we have
traditionally done m this Nation to help the victims of crime
For both constitutional and practical reasons, however, this
amendment is not the best way to accomplish those ends.

Amending the Constitution is a serious matter. Clearly, the
provisions of Article v that enable us to do so were put there to
be used. But just as clearly, experience has taught us that those
provisions are to be used only when circumstances plainly warrant

In fact, just to be perfectly clear on that, one of my
earliest professional articles, written nearly 20 years ago, was a
piece lamenting that the crime victim was the forgotten person in
our criminal justice system and arguing, among other things, that
the victim should have the first cut at the criminal, through a
system of victim restitution, the state or public the second cut,
through a system of punishment. See Roger Pilon, "Criminal
Remedies: Restitution, Punishment, or Both?" SB Ethics 348 (1978).


it. When other, more flexible means are available to accomplish
desired ends- -especially when those means may need to be refined in
light of experience- -prudence alone sugge; ts that we not lock such
means in our basic law, the Constitution.

In the case at hand, state and local governments have been
moving for some time to better provide for the victims of crime.
And at the federal level, every aim of this amendment can be
accomplished- -with equal effect and greater flexibility- -by
statute. Thus, there is no compelling reason to accomplish such
ends through constitutional amendment. On the contrary, when they
can be better accomplished through ordinary legislation, that is
the route to take.

It is argued, however, that constitutionalizing the rights of
victims of crime will give those rights a stature they otherwise
would not have. That is true, but the argument must be weighed in
light of both the larger constitutional design and some of the
foreseeable implications of following the argument.

With regard to the first of those concerns, the Constitution,
at bottom, is a document of delegated, enumerated, and thus limited
powers. Notwithstanding the growth of federal power over the 20th
century, the federal government has only those powers that the
people, through the Constitution, have delegated to it, as
enumerated in the document. That point is made clear in the very
first sentence after the Preamble.^ It is reiterated in the very
last member of the Bill of Rights, the Tenth Amendment.^

By constitutional design, therefore, most power in this Nation
rests with the states or with the people- -even if today the design
has been seriously compromised. The power to investigate and
prosecute common law crimes- -and to secure our rights against such
crimes - is a case in point. Under our federal system, the Framers
left such power almost entirely with the states. Thus, there is no
constitutional authority for the vast growth of federal power over
crime that we have seen over the course of this century- -a point
the Supreme Court revived only a year ago in the Lopez case, ^ and
many in Congress are making, by implication, in a number of bills
they have introduced during this session.^

^ "All legislative Powers herein granted . . . . "

^ "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."

" United States v. Lopez, 115 S . Ct . 1624 (1995).

5 For example, H.R. 2270 (The Shadegg-Pombo "Enumerated
Powers Act"); H.Res. 431 (A sense-of -the-Congress resolution
regarding the constitutional duty of Congress); S. 1629 (The Dole-
Stevens "Tenth Amendment Enforcement Act of 1996").


It is not a little anomalous, therefore, to have an amendment
to the Constitution addressing the rights of victims of crime when
there is so little federal power to begin with t j address the
problem of crime. It would be one thing if the federal government,
as at the state level, were required to attend to the rights of
victims in connection with its general police power. But there is
no general federal police power, as the Lopez Court made clear.
This amendment has about it, then, the air of certain European,
especially Eastern European, constitutions, which list "rights" not
as liberties that government must respect as it goes about its
assigned functions but as "entitlements" that government must
affirmatively provide. We have thus far resisted that tradition in
this Nation. It would be unfortunate if we should begin it through
this "back door," as it were.

But if the absence of any general federal police power makes
this amendment anomalous, still other implications for federalism
are even more clear. By constitutionalizing certain "minimal"
standards in this area, for example, the amendment would preclude
states from experimenting in ways that might fall below the
minimum. Moreover, it appears from the language of section 2 of
the amendment that Congress would have the power to mandate states
to take measures to implement the provisions of section 1, which
amounts to nothing less than constitutionalizing a number of
"unfunded mandates." If Congress has no such power, however, then

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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 18 of 24)