United States. Congress. House. Committee on the J.

Proposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 online

. (page 19 of 24)
Online LibraryUnited States. Congress. House. Committee on the JProposals for a constitutional amendment to provide rights for victims of crime : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.J. Res. 173 and H.J. Res. 174 ... July 11, 1996 → online text (page 19 of 24)
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the amendment may amount to an empty promise.

Finally, as a structural matter, such rights as are found in
our Constitution, either enumerated or unenumerated, are invoked
ordinarily when some governmental action either proceeds without
authority (e.g., Lopez) or in violation of a recognized right
(e.g., any authorized action that implicates rights of speech or
religion) . Thus, the putative authority of the government is
pitted against the putative right of the individual or organization
(to be free from such action, or from such an application of an
otherwise authorized action) .

Here, however, we have a three-way relationship, which raises
havoc with our traditional adversarial system. How, for example,
do we resolve the potential conflicts among the authority of the
state to prosecute, the right of the accused to a speedy but fair
trial, and the right of the victim to "a speedy trial, and final
conclusion free from unreasonable delay"? If judicial "balancing"
poses serious jurisprudential problems in our adversarial system
today- -and it does- -then those problems will be only exacerbated
under this amendment. Better to leave things as they now are, with
victims entitled to civil actions against wrongdoers- -and the state
entitled to a separate criminal action in the name of the people.
Better still to place the civil action first in time and priority -
the better to truly recognize the primacy of the rights of the
victim. After all, the injury to the people pales in comparison to
the injury to the victim.


This leads quite naturally to the second concern noted above.
Many of the practical implications of this amendment are of course
unknowable without some expecience trying to operate under it. But
some problems are clear now, such as the just-mentioned potential
for conflicting constitutional rights and powers. Since testimony
in the Senate has already raised a number of such problems/ let
me conclude with but one concern.

Clearly, rights without remedies are worse than useless: they
are empty promises that in time undermine confidence in the very
document that contains them- -the United States Constitution, m
this case. But a remedy is ordinarily realized through litigation.
Before this amendment goes any further, therefore, it is incumbent
upon those who support it to show how victims will or might
litigate to realize their rights, and what their doing so implies
for other rights in our constitutional system. I can imagine
several scenarios under this amendment, none of which is clear, all
of which- -by virtue of being constitutionalized - will make the
plight of victims not better but worse. Over the course of this
century we have already made enough work for lawyers. We do not
need now to make more- -at the expense of those for whom the system
has already failed once.

^ See especially the April 23,. 1996 testimony of both Bruce
Fine and Professor Jamin B. Raskin.



FOR VICTIM ASSISTANCE' Washington. D.C. 20010

f202) 232-6682 Fax: (202) 462-2255
E-mail: [email protected]
Homepage: hnpv/www.access.digex.netz-nova

Submission ofJohnH Stem. Depun Director

Naiional Oreanizaiion lor \'iciim .Assisuncc

and Memberol ihe Executive Board

National X'lCiimsConstiiulional Amendment Nciuork

to Ihe

United Slates House of Represeniaiiv e-
The Honorable Henr> J H\dc.Chaimun


House Jomi Resolution 1 74

a proposal lo amend the Constitution ol the L nnod State -


" '" Mr ChaimianandMcmbcrsoflheCommitiee.

Z'Z Pan 01 the recent public record rcuardini: the Mciims bill olni;htsno« under ihc

.«.o. Committee sconsiderationisanopinioncolumnb\ Scott Wallace published h\ TheUash-

,„„. inj;iunonJune2S

'^°'" Mr Wallaceiscniiiledtohisopinions Aithesameiimc.oncwouldhavethouiihtthat

.".CO ThePosi s readership IS alsoentitled to a correction ol his many missijicmenisoriaci.

'^^^' Attached hereto, lor Ihc Commiltee'scons.deration isadrart"TakinuExcepiion"column

" "^ that IcadcrsoUhe National VictimsConsmuiional Amendment .\et«ork submiited loThc

■ " Posi. « hich chose not to publish it


July 1. 1996

■V jcnnscr. JD AZ
i R LP* ? JO CO

[janovom OH

• 789 Snerman Street.

To the Editor;

The public has the perception that some defense lawyers play fast and loose with the truth.
That perception will not improve after reading Scott Wallaces distoned claims that the proposed
federal Victims Rights' Amendment would mangle the Consiit\jtion (June 28)

The proposed amendment is a venerable idea that has been carefully smdied In 1982. afler
neannes around the country, the Presidents Task Force on Victims of Crime concluded that
America's treatment of cnme victims is "a national disgrace" and recommended, among other
remedies that basic victim ntihts be added to the Constitution Thereafter, victim advocates took
that idea to the great laboratory of the states, and the test results in those twenty-one stales (soon
to be joined bv seven more) have been very encouraging Their practical successes in bnnging
justice to victims put the lie to Mr Wallace's distorted reading of the Federal proposal, and recall
Justice Oliver Wendell Holmes' admonition that "cxpenence. not logic, is the life of the law

Rather than respond to victims' claims for equal justice under the Constitution. Wallace
sounds one Chicken Little alarnt afler another: the federal amendment would prcouce h-jndrcds o:
thousands of new hearings and staggering costs to the taxpayers prosecutors offices would be
tied in knots the couns would be cnppled and corrections officials wouldn't know -vhat Ini


All the words are his. All are indictable as flapdoodle, with malice aforethought.

The centerpiece of Wallace's arguments holds that greedy cnme victims will engage avan-
cious trial lawyers to sue for monev damages wt- -n their nghts are violated. Yet the lead sponsors
of the amendment. Senators Jon Kyi (R-A2) and Dianne Feinsiein (D-CA). have publicly prom-
ised to preclude civil damage actions in their final proposal Victim advocates expected thnt
concession, and know we can live with it — since vinually all state amendments prohibit civil
suits, and are enforced, where necessary, by actions for injunctive relief

Wallace says, falsely, the amendment would confer on victims a "right to protection' that law
enforcement acencies could not meet The actual language speaks of "reasonable measures to
protect the victim." which would not demand the impossible of law enforcement. But it would
have demanded Greater effons to protect people like Kristin Lardner, a young woman whose deall,
at the hands of her known stalker led her father, Washington Post reporter George Lardner, to
* wnte a heanbreaking. Pulitzer Prue-wmning repon on how preventable her death actually was.

Wallace says, falsely, that the amendment wo"ld let victims "olock a plea agreement.'
thereby sending to tnal a multitude of cases now resolved throuj-h negotiation. But the amend-
ment confers only the nght to object to a plea agreemem — a voice, not a vclc — lust as more
than a dozen states now require in their constitutions, and dozens more by statute.

Hundreds of thousands of cases have ended with negotiated guilty pleas after the victim has
been consulted, the vast majonty of whom have accepted the rationale for the plea. Victims who
remain dissatisfied can present their views to the judge, who may accept or reject them, but in
either case, the judge will make a more informed decision on whether to accept the plea.

Wallace claims, falsely, that corrections officials would be hamstrung by such requirements
as giving nonce to victims whenever they "revoke an inmate's television privileges" This is a
distortion of the plain language of the amendment's right to give victims notice of formal pro-
ceedings, a notification right which does not reach a prisoneis' entertainment privileges An even
broader standard is lound'in many state constitutions — giving victims notice of an inmate s
placement in a halfway house, for example — and in any event, new computer-assisted message
systems provide a cheap tool to notify victims of every kind of developments in their case.

Wallace assens. falsely, that the grant of a right to speedy tnal to victims "helps nobody but
the defendant. " since it would force unprepared prosecutors to throw in the towei or lose at tnal.
Swte 505 ' Denver. ColoraOo 80203 • (303) 832-1522 ' 1 800 529-8226 ■ lax 1303) 861-1265 •



Agatn. expenence matters, not to mention conimon sense: constitutional speedy tnal provisions for victims
already exist in California. Flonda. Illinois, and Michigan, among others, yet no rash of dismissals or acquittals
has matenalized there The reason is obvious: if a viciim 's new speedy tnal nghts could somehow be used to tnp
up unprepared prosecutors, surely the defendant s old speedy tnal nghts. long embedded in the Sixth Amend-
ment, would have done the same.

It never happened because the Supreme Coun holds that both the prosecution and the defense must be
accorded adequate time to prepare for tnal. "speedy tnal" or not

Funher. a defendant's nght to speedy trial was clearly needed when the Bill of Rights was adopted, and it is a
bulwark against tyranny that should be preserved for all times. But today the tactical advantage to the defense is
in delay, not speed. In Florida, for example, prosecutions of child sexual abuse cases are plagued with a dozen or
more hearings and postponements The latter are largely defense-initiated in the hope of forcing the victim's
family to become disheanened.

Can you imagine the effects of even rwo tnal postponements in the life of a child who had been brutally
sodomized'' Can you imagine the effects of 5ur'' The Victims" Rights Amenament would bnng an end to such

Wallace paints, falsely, an elaborate scenano in which Federal grams to victim assistance and compensation
programs would "dry up if the Constitution requires restitution to be fully paid " before any fines As he notes,
fines collected from Federal offenders are the lifeblood of the Crime \ictims Fund, which supports the state and
local victim services of which he is so solitilous. Making Federal offenders pay full restitution to their victims
first, he reasons, would cnpple their ability lo pay any of the fines imposed at sentencing

Whether he is ingenuous or merely ignorant on this point, the facts are these: by a statute already on the
books. Federal offenders must pay their victims restitution in full before their assets can be applied to pay the
fines that are transferred to the Crime Victims Fund Thus, the victims' amendment will have no effect — zero
— on this funding scheme Similarly, state methods of genmg financial suppon of their compensation and
assistance programs from offender penalty assessments would be fully protected under the proposed amendment.
The suggestion that victim advocates would jeopardize victim assistance on the altar of victim nghts is ofmsive.

To answer Wallace's attacks, as we have sought to do. comes at a price. We have played on his field, or
rather that of the National Legal Aid and Defender Association, of which he is special counsel, without offenng
the affirmative case for our cause.

For example, we cannot expound on last week's awfijl ruling that victims of the Oklahoma City bombing
may either observe the tnal or speak their heans at any sentencing proceeding — but not both. Nor can we
describe the pleas of a battered woman to be notified if her vengeful abuser were ever released from prison —
pleas that were faiefully ignored.

To bener describe the needs and the proposed remedies, we must defer to our Congressional allies and other
supporters — like Harvard law professor Lawrence Tnbe and Princeton professor John Dillulio. like Bob Dole
and President Bill Clinton — and uke courage from the simple injunction of Justice Benjamin Cardozo:

"Justice, while due the accused, is due the accuser also."

Paul C Cassell

Mr Cassell. a Professor of Law at the University of Utah College of Law. is a self-descnbed Reagan Republican;
Mr Stem, the Director of Public Affairs at the National Organization for Victim Assistance, is a self-descnbed
Kennedy Democrat. Both serve on the Executive Board of the National Victims Constitutional Amendment

Both can be reached Monday at the N-VCAN meeting in Washington at 202-588-1064; otherwise. Mr Stem can
be reached at the NOVA Headquarters ai 202-232-6682. and Mr, Cassell at the law school at 801-585-5202,






, .-■ k -TRTf ^v.

August 19, 1996

The Honorable Henry Hyde
Chairman. Comminee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Hyde:

A Washington Post Op-Ed I wote raising questions about the practical impact
of the proposed victims rights constitutional amendment has been criticized in a formal
submission to vour Committee by spokesmen for the National Victim Constitutional
Amendment Network and the National Organization for Victim Assistance. Since their
submission contains numerous misstatements, and there is a serious possibility ot swift
congressional action on this important measure, this response is being furnished to
provide a ftiller record to assist the Committee in its deliberations.

The National Legal Aid and Defender Association, on whose behalf] wTOte the
article does not approach the proposed amendment, as the writers suggest, simply as
defense lawvers NLADA's members span both sides of 'he debate, our defender
members represent indigent individuals accused of crime, and our civil members
represent indigent victims. As President Clinton pointed out recently in discussing
domestic violence, one out of three clients represented by legal services lawyers around
the counUT is a poor woman or child in need of protection against an abusing family
member Our commitment is to ensuring equal justice for indigents, whether defendant
or victim, and to maintaimng an effective and balanced American justice system
accessible to all. Indeed, both defendants and victims had their own spokesmen at the
recent House Judiciarv Comminee hearings (the National Association of Criminal
Defense Lawvers and vanous victims orgamzations); in accepting the Comminee
majontvs invitation to testify, we viewed our role as one of providing a broader
perspective on the practical ramifications for the justice system as a whole.

Like so manv other groups, NLADA strongly supports the proposed constim-
tionai amendment's goals of protecting victim's nghts. We have long supported
criminal sanctions which stress accountability to the vicum, such as restitution and
victim-offender mediation, as well as accountability to the community victimized,
through community service. We have worked with the Justice Department to promote
restorative justice models embraced by victims organizauons. which incorporate victims
as partners in the criminal justice process. We worked closely with Congress to
produce the historic federal victim restimtion legislation enacted this year in the
terrorism bill.

The VCAN spokesmen, Cassell and Stein, state that our concerns are nothing
but falsehoods, maliciously raised. As discussed below, our concerns are rationally


August 19. 1996
Page 2

based, and are shared by many. Even the congressional authors of the proposed amendment have
apparently respected the concerns we raised; Senators Feinstein and Kyi are currently circulating
revised drafts narrowing the amendment in each of the areas we identified.

Cassell and Stein characterize as a falsehood the possibility that the new speedy trial rights
for victims may force prosecutors to u-ial before they are ready. This is a concern that originated
not with us, but with prosecutors themselves. Justice Department officials, in discussing the
administration's support for the general concept of a victims rights constitutional amendment,
singled out the speedy trial right as one element that they could not endorse. Prosecutors fear that
it might "interfere with our ability to prosecute effectively," said Associate Attorney General John
Schmidt in a press briefing on June 25. 1996. In simations where the victim and the prosecutor
have different views about when a case should go forward, there could be two basic outcomes:
either the prosecutor would prevail over the victim's objections, or the victim would prevail over
the prosecutor's objections — which would be, said Mr. Schmidt, "to put it mildly, a ver\-
delicate matter" for prosecutors to accept. Faced with this dichotomy, and a strong administration
desire that the amendment should contain only "real rights" rather than "hortatory' language that
has no real bite to it," Mr. Schmidt explained that "we were unable, at least at this point, to come
up with a formulation that we thought was workable." Subsequently the U.S. Judicial Conference
Criminal Law Committee voiced similar concerns in a Jul}' 16 letter to the Senate Judiciary
Committee, wondering whether the speedy u-ial right would mean "forcing prosecutors to begin
tr>ing cases before they have completed their investigations." The speedy trial right has been
deleted from Feinstein/Kyl redrafts.

Cassell and Stein dismiss concerns about the impact that the notice and opportunity-to-be-
heard rights might have on correctional operations, arguing that the "plain language" of the
amendment would have minimal impact because it would not cover minor disciplinary
proceedings in prison. [They do not disagree that the amendment would apply to proceedings
such as setting a release date or deciding whether to place an electronic monitoring bracelet on
a parolee's ankle, requiring corrections officials to begin the day the amendment took effect the
process of identifying, tracking and notifying victims of every one of the 5 million criminals
currently under correctional control, including the 1.5 million who are incarcerated.] But the
amendment's language draws no such line around prison disciplinary proceedings: it extends to
"every proceeding" at which the offender is present, which according to corrections officials
would indeed include suspension of inmate privileges for a disciplinary infraction. A preliminary
impact assessment by Texas corrections officials projects that in that state alone, approximately
350,000 disciplinary proceedings per year would be covered, plus approximately 200.000 inmate
classification hearings (see enclosed). The assessment raises the concern that because of the cost
and burden of the new procedural requirements, prison administrators might cut back on
disciplinary enforcement, making management of the inmate population "more difficult and more
dangerous." It also discusses administrators' inability to guarantee the safety of victims coming
into prisons on a daily basis to attend the proceedings.

The Feinstein/Kyl redraft seeks to address such concerns by limiting the notice and


August 19, 1996
Page 3

opporUinity-to-be-heard rights to proceedings which are either "public" or "involve a release from
custody." These changes, however, are unlikely to mitigate the impact on corrections; although
prison disciplinary proceedings are not generally public, every one of them can affect an inmate's
release date, by affecting good-time credits, parole or other release determinations. And of course,
the changes leave untouched the need for notice and an opportunity to be heard in non-
correctional settings, including millions of encounters with suspects or arrestees by police or
prosecutors every year, each involving a potential release from custody.

Casseli and Stein reject the possibility that the amendment might impair existing state
victim compensation and assistance programs by requiring offenders to fully pay restitution before
paying the fines which are the primary funding source for such programs. Again, this is not a
concern that originated with us; it came from victims" advocates themselves. The amendment's
primary drafter, Steve Twist — a member of the VCAN executive board — testified in the
Senate in April that if it were made a constitutional right, the payment of restitution "would take
precedence over any other payments to the government ... such as fines." In a Senate hearing last
November on a federal statute to require restitution in all federal cases, David Beatty, Director
of the National Victim Center and another member of the VCAN executive board, warned that
giving restitution priority "may operate to seriously undercut payments to the Victims of Crime
Act Fund [which provides direct financial assistance to more than 3.000 victim assistance
organizations across the country] in cases where offenders lack the resources to fully satisfy
both." And as Judge Maryanne Trump Barry testified at the same hearing on behalf of the U.S.
Judicial Conference, more than 85 percent of all federal defendants are indigent and cannot pay
both restitution and fines, a figure which at the state level is closer to 90 percent. "We have grave
concerns," concluded Mr. Beatty, "over the possibility that full mandatory restitution in all
criminal cases may benefit individual victims in a single case at the expense of the thousands of
victims who are served by VOCA funded victim assistance programs."

Casseli and Stein argue that the proposed constitutional provision on restitution would do
nothing that has not already been done to victim-program funding by the federal restitution statute
enacted in the terrorism legislation in April. Restitution must be paid first under the new statute,
they believe, then fines. It is they who are mistaken on this point. The new statute flatly gives
fines precedence over restitution (under 18 U.S.C. §3663(c)(5), as added by §205 of P.L. 104-
132). no doubt in response to the above-quoted objections from the victims community. The
constitutional amendment would tnmip the statute. It would reverse this priority, putting
restitution first, as Mr. Twist said was the goal, and Mr. Beatty said was the problem. The
confusion of the victims community itself on this key point is a compelling demonstration of the
need for responsible study of the impact of the amendment.

The restitution provision is fundamentally altered in the Feinstein/Kyi redraft. In apparent
recognition of the futility of seeking to enforce restitution against the vast majority of offenders
who are indigent, the original unqualified right to full restitution is proposed to be changed into
a right to "an order of full restitution. Victims' interests are hurt in two ways: not only will fines
dry up as a funding source for victim assistance programs, but individual victims may well feel


August 19, 1996
Page 4

betrayed when they learn that the Constitution's reference to restitution guarantees them nothing
more than a symbolic piece of paper "ordering" it, from an offender who. nine times out of ten.
can not realistically be forced to pay it.

The latest redraft would add another fundamental insult to victims. b> containing a non-
retroactivity provision. Presimiably to cut the cost of the amendment, crimes committed before
its ratification would not be required to be covered. Every single crime victim in America toda)
who is supponing this amendment to help deal with a crime already committed would be
guaranteed absolutely nothing. It is doubtful that most victims around the countr>' will see an>
rationality in protecting only victims who don't exist yet.

Cassell and Stein dispute my suggestion that police may have reason to worry about
giving victims a constitutional right to protection from further violence or intimidation b\' their
accused or convicted attacker. They say that the amendment would not demand the impossible
of law enforcement, but simply "greater efforts" to protect people like Kristin Lardner. murdered
by her long-time stalker. My point was not that the police cannot protect a Kristin Lardner, but
that when himdreds or thousands of Kristin Lardners are equally guaranteed "greater" police
protection, a logistical and legal nightmare is set in motion for police. How do they balance their
other duties to protect the commimity with this constitutional mandate to give greater attention
to certain stalking and domestic violence cases? Victims or their survivors who attribute an attack
to the lack of "greater" police protection will understandably feel invited to seek legal redress for

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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 19 of 24)