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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

. (page 2 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 2 of 24)
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Need to protect victims' rights — scales of justice imbalanced

The strong bipartisan support for the amendment makes clear that the Victims'
Bill of Rights is not a partisan issue, or some election-year gimmick. The idea stems
from a 1982 President's Task Force on Victims of Crime, which concluded that "the
criniinal justice system has lost its essential balance," and that constitutional pro-
tection of victims' rights was the only way to guarantee fair treatment of crime vie-



11

tims. Since then, grass-roots citizens' organizations around the country have pushed
for amendments to their state constitutions. Twenty states have responded to the
rude treatment victims face, and have enacted constitutional amendments. Seven
more states are expected to adopt victims' rights amendments in the coming elec-
tion.

But this patchwork of state constitutional amendments is inadequate. Even in the
20 states that have victims' rights constitutional amendments, the rights of victims
are routinely overridden by the rights of defendants, which are enshrined in the Bill
of Rights of the United States Constitution, the highest law of the land. There is
no dispute that the federal constitution trumps state law in cases of conflict.

The 43 million victims of serious crimes each year, need a constitutional amend-
ment to protect their rights, and restore balance to our justice system. Those ac-
cused of crime have many constitutionally protected rights: They nave the right to
due process, right to confront witnesses; right against self-incrimination, right to a
jury trial; right to a speedy trial; right to a public trial; right to counsel; right to
be free from unreasonable searches and seizures.

Yet, despite rights for the accused, the United States Constitution, our highest
law, has no protection for crime victims. The recognized symbol of justice is a figure
holding a balanced set of scales, but in reality the scales are heavily weighed on
the side of the accused. These protections are sadly one-sided. Our proposal will not
deny or infringe any constitutional right of any person accused or convicted of a
crime. But it will add to the body of rights we all enjoy as Americans.

Victims of crimes have no constitutional rights. They are often treated as mere
inconveniences, forced to view the process from the sidelines. Defendants can be
present through their entire trial because they have a constitutional right to be
there. But in many trials, victims are ordered to leave the courtroom, such as re-
cently was the case with some of the victims of the Oklahoma City bombing.

Victims often are not informed of critical proceedings, such as hearings to consider
releasing a defendant on bail or allowing him to plea bargain to a reduced charge.
Even when victims find out about these proceedings, they frequently have no oppor-
tunity to speak. Today victims have no right to reasonable finality. It is not uncom-
mon for cases to last years and years after the jury verdict, while courts again and
again review the same issue. These lengthy delays cause terrible sufTering for crime
victims, especially the loved ones of homicide victims. What others consider as a
mere inconvenience can be an endless nightmare for the victim.

Amending the Constitution is a big step, but a necessary one

Amending the Constitution is, of course, a big step — one which I do not take light-
ly — but, on this issue, it is a necessary one. As Thomas Jefferson once said: "I am
not an advocate for frequent changes in laws and constitutions, but laws and insti-
tutions must go hand in hand with the progress of the human mind. As that be-
comes more developed, more enlightened, as new discoveries are made, new truths
discovered and manners and opinions change, with the change of circumstances, in-
stitutions must advance also to keep pace with the times."

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 chang-
ing legislative or court majorities? When the rights to vote were extended to all re-
gardless 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 defend-
ant'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 crit-
ics 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 al-
ways 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.

CONCLUSION

The American people are becoming more and more aware of the imbalance in our
system. They realize that as we continue to fight for rights for victims of crime, in
courtrooms across America, victims will be forced to sit outside while their attackers
are tried. Today, and every day, critical proceedings will be held in criminal cases
and victims will not be informed of those proceedings or given the opportunity for
their voices to be heard. Today, and every day, victims wilibe forced to endure end-
less delays. With this constitutional amendment we can cure this injustice.



12

I would note that the incredible grassroots support for the Victims' Bill of Rights:
Karen and Monte Colvin of Tucson, Arizona, whose 19-year-old son Mike was killed
in 1990, drove their three-wheel Harley Davidson across the country to Washington,
D.C., where they presented me with a 2,000-3ignature petition in support of the
amendment. The Victims' Bill of Rights is endorsed by: Mothers Against Drunk
Driving (MADD); Parents of Murdered Children; National Organization for Victim
Assistance; National Victim Center; National Victims' Constitutional Amendment
Network; National Center for Missing & Exploited Children; Victim Assistance
Legal Organization; Doris Tate Crime Victims Bureau; Citizens for Law and Order;
John Walsh, host of "America's Most Wanted"; National Coalition Against Sexual
Assault; The Law Enforcement Alliance of America.

In closing, I would again like to thank Chairman Henry Hyde for holding this
hearing, and Senator Feinstein for her hard work on this amendment. For far too
long, the criminal justice system has ignored crime victims who deserve to be treat-
ed with fairness, dignity, and respect. Our criminal justice system will never be
truly just as long as criminals have rights and victims have none. We need a new
definition of justice — one that includes tne victim.

Mr. Hyde. Well, I thank you, Senator. I certainly concur in your
optimistic assessment that we can do this. We are all working
along with you and Senator Feinstein and the Justice Department
to that end.

I gave you a very inadequate introduction, but you are someone
who needs no introduction, a former Member of the House and a
distinguished Senator from Arizona, and a stalwart champion of
victims' rights for many years.

I am very pleased now to introduce Senator Dianne Feinstein
from the State of California. She has lent her important bipartisan
support to Senator Kyi's legislation in the Senate. We certainly ap-
preciate her being here today. We appreciate her support for this
important amendment and her input.

Senator Feinstein.

STATEMENT OF HON. DIANNE FEINSTEIN, A SENATOR IN
CONGRESS FROM THE STATE OF CALIFORNIA

Mrs. Feinstein. Thank you very much, Mr. Chairman. I want to
thank you for leading this effort in the House. I want to just com-
ment that Senator Kyi has really been very wonderful to work
with. We have worked together in the spirit of bipartisanship. I
think that's one of the reasons why we are going to end up with
a constitutional amendment that will meet the tests of both politi-
cal parties. We were both very appreciative when former majority
leader Bob Dole supported this, and of course the President of the
United States has joined in his support. Since that time, the White
House and the Justice Department have played very important
roles as Senator Kyi has said.

We have a draft of our latest up until last night. I think all —
we have worked with Justice, with the White House, with Prof.
Larry Tribe, with Stephen Twist — Dr. Stephen Twist representing
the victims. I think we've got concurrence with all but perhaps one
part that Justice still has some concerns about. I'd be happy to
share that with you. You might want to discuss that with Justice
when they come in this afternoon.

Let me tell you how I got into this. There was a case in San
Francisco in 1974. The case was Frank Carlson and Annette
Carlson. They lived in Portrero Hill. A man by the name of Angelo
Pavegeau broke into their home, tied up Frank Carlson. They were
a young couple. Beat him to death with a hammer, a chopping



13

block and a ceramic vase. He then proceeded to rape Annette
Carlson. He broke several of her bones. He slit her wrists. He tried
to strangle her with a telephone cord. He then set their home on
fire and he left them.

Believe it or not, somehow, some way she lived. She testified
against him. When I was mayor, she called me every year. She
said, "I know he's going to get out. I live in fear. I have changed
my name. I live anonymously. Please help me keep him in prison."
Then I began to think.

Then there was another case called the Salarno case, Harriet and
Mike Salarno. They own a television store in the Sunset District
in San Francisco. Their daughter Catina was murdered at the Uni-
versity of the Pacific by her boyfriend, who then went in and
watched television while she bled to death in front of the dor-
mitory. They began to head a victims movement.

In 1982, California became the first of 20 States to pass constitu-
tional amendments which I supported, to protect victims' rights.
The problem with that is that they are patchwork of different
rights throughout the States. As Senator Kyi said, and you can see
here, an accused have 15 specific rights guaranteed to them by our
Constitution. Victims have none. So when the rights come up
against each other, as they are now beginning to do in a couple of
cases, in Oklahoma City, for example. The California case I de-
scribed was one, but the problem now has become nationwide.

The prosecution is underway now against two men charged with
the bombing. Their surviving victims, including families of the de-
ceased, wanted to attend the trial. Unfortunately, the judge has
forced them to make a very painful choice. If they choose to attend
the trial, they will forfeit their right to testify at the sentencing
hearing if the defendants are convicted. Despite the prosecutor's ei-
forts, the judge decided that victims' testimony at sentencing could
be affected "by just seeing the defendants in court." So attendance
at the trial will disqualify them from testifying. The judge appar-
ently had no concerns about the testimony of the defendants being
affected by their presence or even their families' presence during
the trial.

This followed on the heels of an earlier ruling by the judge, that
victims should not get priority for seats in the courtroom, because
he had constitutional concerns about giving them special treat-
ment.

Mr. Chairman, our amendment will prevent just this kind of
thing from happening in the future. I go on then and discuss in my
written remarks, a Utah rape case that's recent with some of the
same conflicts presented to the judiciary. I really believe this is an
idea whose time has come. I don't believe when our forefathers
drafted the Constitution and the Bill of Rights, that they knew
there would be 11 million victims of crimes of violence in these
United States every year, and 42 million victims overall.

People have a right to know when the trial is happening, to have
notice. They have a right to be present. The victim has a right, we
hope, to be heard. More fundamentally, a victim has a right to be
noticed if their assailant escapes. They have a right to protection
in that situation. They have a right to know and to be heard at a
parole hearing. Those are the rights that would be established by



14

this constitutional amendment. So I am hopeful, very hopeful, that
with the President's support, with the strong bipartisan support,
that we can move this this year, get it before the States, and have
it ratified by three-quarters of our States within a three-year pe-
riod. I thank you very much, Mr. Chairman.

[The prepared statement of Mrs. Feinstein follows:]

Prepared Statementt of Ho.\. Dianne Feinstein, a Senator in Congress From
THE State of California

Thank you, Mr. Chairman. I am very pleased that you are holding this hearing
on an issue that is very, very important to me, and, I know, to you as well-providing
constitutional rights for victims of crime. I also want to acknowledge the leadership
of my colleague, Senator Kyi, in bringing this important issue to the forefront.

Let me start by telling you about two cases in California which really brought
home to me the need for greater protection for the rights of victims of crime.

pavageau case

In 1974, in San Francisco, a man named Angelo Pavageau broke into the house
of Frank Carlson in Portrero Hill. He tied Mr. Carlson to a chair and murdered him
by beating him with a hammer, a chopping block, and a ceramic vase. He then re-
peatedly raped Carlson's 24-year-old wite, breaking several of her bones. He slit her
wrist and tried to strangle her with a telephone cord before setting their home on
fire and leaving them to go up in flames.

But Mrs. Carlson survived the fire. She lived to testify against her attacker. But
she has had to change her name and lives in fear that her attacker may be released
someday. When I was Mayor of San Francisco, she called me several times to notify
me that he was up for parole. But it was up to her to find out when his parole hear-
ings were.

It shouldn't have to be that way. It should be the responsibility of the state to
send a letter through the mail or make a phone call to let a victim know that her
attacker is up for parole, and she should have the opportunity to testify at that
hearing.

salarno case

In 1979 a killing occurred which really galvanized the victims' rights movement
in California. A young woman named Catina Rose Salarno was murdered on her
first day of school at the University of Pacific in Stockton. The killer was 18-year-
old Steven John Burns, Catina's high school sweetheart and a trusted family friend.

Catina had broken off her relationship with Bums, but she agreed to meet him
that night for a walk on campus. When Catina turned around, he shot her at point-
blank range, left her there on the ground, and went back to his dorm room to watch
Monday night football. He could see her as she bled to death outside his window.

Bums argued at the trial that he suffered from schizophrenia, but he was con-
victed and sentenced to life at the California Medical Facility in Vacaville. During
the trial, the family was not allowed in the courtroom and had to sit outside waiting
for news. Bums was up for parole in October of last year, but was denied because
of the gravity of the crime and his lack of remorse. He can apply for parole again
in 1998.

The murder of Catina has had a profound and lasting effect on the family. Her
mother, Harriet, and her father, Micnael, co-founded Crime Victims United — one of
California's most outspoken groups for victims rights. A year ago, her younger sis-
ter, Nina, became a deputy district attorney in Sacramento County. Together, the
family works tirelessly to educate the public about the rights of crime victims.

These cases helped California to become the first state in the nation to pass a
crime victims' amendment-Proposition 8 — to its constitution in 1982. It gave victims
the right to restitution, the right to testify at sentencing, probation and parole hear-
ings, established a right to safe and secure public school campuses, and made var-
ious changes in criminal law. It was a good start.

Since that time, 20 states have passed constitutional amendments guaranteeing
the rights of crime victims — and five more are expected to pass by the end of this
year. Most of the state amendments have won with the approval of m.ore than 80
percent of the voters.

But today, in most states of the Union, victims still are not made aware of the
victim's trial, many times are not allowed in the courtroom during the trial, and are
not notified when a convicted ofiender is released from prison.



15

OKLAHOMA BOMBING CASE

While the CaHfomia cases I described brought victims' mistreatment by the legal
system home to me, the problem is nationwide, and is as current as today's news.
Two developments in just the past two weeks demonstrate the real need for a fed-
eral constitutional amendment, right now.

The prosecution is under way against two men charged with one of the most cow-
ardly, evil and heinous acts in recent memory: the bombing of the Alfred P. Murrah
Federal Building in Oklahoma City, which killed 168 people.

The surviving victims, including families of the deceased, wanted to attend the
trial in this case. Unfortunately, the judge has forced them to make a very painful
choice: if they choose to attend the trial, they will forfeit their right to testify at
the sentencing hearing if the defendants are convicted.

Despite the prosecutor's valiant efforts, the judge decided that victims' testimony
at sentencing could be affected, quote, "by just seeing the defendants in court," un-
quote, so attendance at the trial will disqualify them from testifying. The judge ap-
parently had no such concerns about the testimony of the defendants being affected
by their presence during the trial.

This followed on the heels of an earlier ruling by the judge that victims should
not get priority for seats in the courtroom because he had constitutional concerns
about giving them special treatment.

Mr. Chairman, our amendment will prevent just this sort of miscarriage of justice.
If our amendment were law today, those victims would be allowed to attend the trial
and to testify at sentencing, and would not be shut out of one or the other proceed-
ing.

UTAH RAPE CASE

Just last Friday, another judicial decision demonstrated why state constitutional
amendments are not sufficient to solve these problems. In the case of Utah v.
Beltran- Felix, the defendant's partner raped a jewelry store employee during an
armed robbery, and then the defendant Emilio Beltran-Felix, forced this woman to
perform oral sex on him. All of this happened in front of her co-workers.

Because Utah has a victims' rights amendment, the victim asserted her right to
attend the trial. However, defense counsel objected, claiming that this violated the
Fifth Amendment of the United States Constitution.

Fortunately, the judge allowed the victim to remain, and last Friday this decision
was upheld by the Utah Court of Appeals. However, that court refused to categori-
cally assert that the presence of a non-disruptive victim did not violate the Fifth
Amendment. Instead, the court took the approach of looking at the particular facts
of the case to see whether the victim tailored her testimony to match the testimony
of other witnesses.

This case-by-case approach to determining whether victims can constitutionally be
allowed to attend the trial, like the decision in the Oklahoma bombing case, puts
victims in an unfairly difficult position. In Utah now, before deciding to attend the
trial, the victim must consider that she is taking the risk that she is giving her
attacker an argument that she tailored her testimony, which he can then use on
appeal to possibly overturn his conviction.

Our amendment would place victims on the same footing as criminals. Sequestra-
tion of witnesses is not required for the defendant, despite the same or even greater
potential for tailoring testimony, because his right to be in the courtroom is deemed
more important.

Victims' right to be in the courtroom is equally important — yes, the defendant's
liberty is at risk, but it is the victim who often has been traumatized and brutalized,
and for whom we seek justice in the trial. This constitutional amendment will give
the victim the same right to attend the trial that is as much theirs as it is the de-
fendant's.

Mr. Chairman, I believe these cases demonstrate that the time finally has come
to amend the United States Constitution to protect the rights of victims of serious
crimes.

WHY A CONCTITUnONAL AMENDMENT?

Some people question why this needs to be a constitutional amendment. The rea-
sons for this are: to give victims' rights the same legal strength that criminals'
rights have; to give these rights to victims of crime in every state of the Union; and
to establish consistent, uniform rights for the millions of crime victims in our coun-
try.



16

Our founding fathers, when they included the rights of the accused in the Con-
stitution, did not think to include the rights of crime victims. Then again, in 1776,
there weren't 43 million victims of crime every year.

Our Constitution spells out numerous rights of the accused in our society, all of
which were established by amendment to the Constitution: the ri^t to a grand jury
indictment for capital or infamous crimes; the prohibition against double jeopardy;
the right against self-incrimination; the right to due process; the right to a speedy
trial and the right to an impartial jury of ones' peers; the right to be informed of
the nature and cause of the criminal accusation; the right to confront witnesses; the
right to counsel; and the right to subpoena witnesses — and so on.

But the victims of a crime have no such rights. In fact, the U.S. Constitution guar-
antees them no rights at all. This Constitutional Amendment, as I see it, is an at-
tempt to level the playing field for crime victims. It says to the victims: You have
the fundamental right to oe informed of and given the opportunity to be present at
every proceeding in which those rights are extended to the attacker; You have the
right to be heard at any proceeding involving a release from custody or sentencing;
You have the right to be informed of any release or escape; You have a ri^t to an
order full restitution from the convicted ofTender; You have the right to reasonable
measures of protection from violence or intimidation by the accused or convicted of-
fender; and You have the right to be made aware of all of your rights as a victim.

Unless these rights are given the same constitutional status that criminals' rights
have, the rights of a criminal will always trump the rights of a victim, as the Okla-
homa City case amply demonstrates.

Support for a victims' rights constitutional amendment has continued to grow
since Senator Kyi and I joined with you, Mr. Chairman, in announcing our amend-
ment in April. Our amendment has been endorsed by: National Center for Missing
and Exploited Children; the Honorable Bob Miller, Governor of Nevada, Vice-Chair-
man. National Governors' Association; Mothers Against Drunk Driving (MADD); Los
Angeles County Sheriff Sherman Block; Victim Assistance Legal Organization; Citi-
zens for Law and Order; Parents of Murdered Children; National Organization for
Victim Assistance; National Coalition Against Sexual Assault; National Victim Cen-
ter; Alaska State Legislature; Doris Tate Victims Bureau; Law Enforcement Alliance
of America; and National Victims' Constitutional Amendment Network.

And two weeks ago, the movement for a constitutional amendment was given re-
newed momentum when President Clinton announced his support for a victims'
rights amendment. His opponent, Senator Dole, has also endorsed an amendment.

Some legitimate concerns about our amendment have been raised. For example,
I myself was concerned that prosecutors and other government officials not be sub-
ject to costly lawsuits for monetary damages for, for example, the failure to give a
victim notice of a particular proceeding. Before I agreed to co-sponsor this amend-
ment. Senator Kyi and I agreed that we would address this issue.

To address some of the legitimate concerns which have been raised, and to more
finely tune the amendment. Senator Kyi and I have prepared a re-drafl of the



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 2 of 24)