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 20 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 20 of 24)
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violation of their constitutional rights. Will federal judges be required to second-guess
discretionary' police decisions about the allocation of manpower and resources'!' The amendment
imposes greater duties, risks and costs on law enforcement, the precise scope of which may be
in doubt but which Congress and law enforcement bodies with research capabilities should
explore before the amendment proceeds farther.

The Feinstein/Kyl redraft seeks to address this concern by diluting the right to "reasonable
measures to protect the victim" into a right to "reasonable conditions of confinement or release"
to protect the victim. As with restitution, the change is practical, but the results are purely
symbolic; victims are not guaranteed protection, they are only guaranteed a piece of paper from
a court which may or may not be enforced by overworked police or probation officers.

The newest redraft moves this provision startlingly away from the symbolic, to give
victims a right to "reasonable release conditions or confinement to protect the victim from
violence or intimidation." A "right to confinement?" This would appear to give one individual
a constitutional right to have another incarcerated, triggered by nothing more than "intimidating"
behavior. This is undoubtedly the most radical and imtested restructuring of the constitutional
balance of the criminal justice system ever attempted in a victims-rights measure; one can only
attribute it to inadvertent and inartful drafting.

Cassell and Stein correctly state that the amendment would grant victims the right to
object to plea agreements. But they incorrectly state that my article characterizes this as a veto


August 19, 1996
Page 5

right; the article clearly says that victims would be "entitled to object." (Reading it as a veto right
is not necessarily far fetched, however; the U.S. Judicial Conference Criminal Law Committee
expressed concern in its July 16 letter to the Senate Judiciary Committee about whether the
constitutional provision would make a victim's objection binding upon the court.) But my
assumption is also that the proponents expect victims" objections to defeat some proportion of
plea agreements, or else the provision would have no effect at all and would not be worth
fighting for. The practical problem is that even a modest decrease in cases disposed of b>' plea
means a very substantial mcrease in the trial workload not only of prosecutors, but of courts and
indigent defense. Even a five percent reduction in guilty pleas means a 33 to 50 percent increase
in trials, as the Federal Courts Study Committee found in its comprehensive final report in 1 990
(p. 137). If this type of workload increase is extended over the entire state and federal justice
system, there are obviously severe potential consequences both in terms of resources and the
ability of both the civil and criminal justice systems to continue functioning effectively. The point
is not that providing victims an increased voice in plea dispositions should not be tried, but
simply that more needs to be learned about its practical effect before a specific formulation of
such a right is forever enshrined in the U.S. Constitution.

Finally, Cassell and Stein express indignation at my suggestion that victims who have
been injured by a violation of their new constitutional rights might wish to have some way of
enforcing those rights which would compensate them for the harm they have suffered. The two
of them would be satisfied, they say, with an express preclusion of civil damage actions in the
constitutional amendment, since victims are not "greedy." On behalf of "victim advocates." they
say. "we can live with" such a limit.

First, the concern about civil actions for damages by victims no more connotes "greed"
on the part of the plaintiff victim than any §1983 action connotes "greed" on the part of for
example, an African American denied a state job because of his color. To equate just
compensation with "greed" reveals a simplistic misunderstanding of the entire American civil
justice system and the protections of the U.S. Constitution.

Second, concerns about public officials" exposure to lawsuits by victims are not
speculative or invented by NLADA. They have come from throughout the justice system —
including the Justice Department, the U.S. Judicial Conference, corrections officials (e.g., the
Texas report) and the American Bar Association. As Cassell himself generously conceded in April
23, 1996 testimony before the Senate Judiciary Committee on the proposed federal victims rights
amendment: "Reasonable minds can defer [sic] on whether the federal amendment should permit
civil actions for damages for violations of rights."

Third, the fact that certain "advocates" for victims organizations "can live with" stripping
fundamental constitutional rights of any meaningful remedy may not sit well with the millions
of individual crime victims who have not been a party to these inside-the-beltway drafting
negotiations. The creation of rights without remedies creates an enormous risk of public backlash
and cynicism which would undermine the amendment's basic goal of a more user- friendly justice


August 19. 1996
Page 6

system. Consider a case where 1) a victim's constimtional rights have already been violated, e.g..
lack of notice of a release or escape, or lack of opportunity to object to a plea bargain, and 2)
the victim has suffered serious harm — anything from emotional disu-ess to a physical attack or
death at the hands of the escaped or improperly released offender. Prospective relief such as an
injunction or mandamus action is not only ineffectual, but the particular victim may simpl> lack
standing to force the errant police department, prosecutor, judge or parole board to improve their
procedures in the future. The lack of a compensatory remedy will be very difficult to understand
for a victim who has incurred hundreds of thousands of dollars of medical costs, lost income, or
death/funeral expenses as a direct and foreseeable result of a government official's negligent or
reckless failure to provide notice or other constitutional protections for victims. And they will
find it difficult to accept that they cannot recover a dime for grievous injuries resulting from a
clear trampling of their constitutional rights, while the rest of the justice system doles out millions
of dollars in damages for too-hot coffee or inappropriate BMW paint jobs. It is a nonsensical
outcome, and the public's outrage will be great, forcing someone — whether the courts or the
legislatures — to graft a remedy onto the rights.

To provide federal rights without remedies violates our oldest legal traditions. Nearly two
centuries ago, in Marbury v. Madison, the Supreme Court declared that "the ver>' essence of civil
liberty certainly consists in the right of every individual to claim the protection of the laws,
whenever he receives an injury." 5 Cranch 137. 163 (1803). And as Justice Harlan noted when
the Court decided to create compensatory remedies even though none existed for a violation of
the Fourth Amendment, in Bivens \: Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 410 (1971), "some form of damages is the only possible remedy for
someone in Bivens' alleged position. It will be a rare case indeed in which an individual in
Bivens' position will be able to obviate the harm by securing injunctive relief from any court."
Clearly, he wrote, "for people in Bivens' shoes, it is damages or nothing."

The fact is that victims advocates who are willing to bargain away compensatory remedies
in order to win a federal constitutional amendment are undermining their own case. If hortatory
language is the goal, this is already available through the highly successful route of amending
state constitutions. If the unique and powerful protections of the U.S. Constitution are not desired,
such as §1983 and Bivens actions, then the argument in favor of amending the U.S. Constitution
is reduced to one of uniformity — i.e., an undermining of traditional states' rights in the criminal
law area which requires close analysis in its own right. In this regard, the National Association
of Attorneys General passed a resolution at its June 1 996 summer meeting warning that puning
a victims amendment into the U.S. Constitution is "a decision of the utmost importance which
cannot be taken without due regard for established principles of federalism" (resolution attached).

But if full rights and remedies — "real rights." as Associate Attorney General Schmidt
says — are the goal, or at least the inevitable ending point, then the practical impact must be
studied. And the primary practical impact will be on those government officials whom the
amendment would compel to act and punish for not acting: police, prosecutors, judges, probation,
parole and corrections officials. Even if enforcement is by way of injunction alone, this entails


August 19, 1996
Page 7

contempt sanctions to deal with noncompliance, including fines against the offending
governmental entity, with all the collateral costs of litigating these separate legal actions. The
secondary impact will be on the other players in the justice system, including not just defendants,
but victims, lawyers for both, users of the civil justice system, and the public at large. Distracting
the time and resources of the primary players with substantial new responsibilities and risks will
have a ripple effect on the quality of justice and protection available to the rest of society'.

The latest Feinstein/Kyl redraft proposes to limit the available remedies in a number of
ways, principally by seeking to prohibit any cause of action for damages against any governmen-
tal subdivision or public official. Aside from cutting off any meaningful relief in cases of
violations which have already occurred, this formulation raises troublesome questions for indigent
defense; though a public defender may be protected by virtue of being a public official, the same
protection would not appear to extend to their colleagues who perform exactly the same function
in different jurisdictions as private lawyers — either through individual appointments or contracts
for a set period or number of cases. Can they be sued for provoking "unreasonable delay" or
failure to notify regarding a negotiated plea? Will this simply produce a bonanza for legal
malpractice liability insurers? Will it single out defense lawyers as the only criminal justice
players subject to actions for damages?

The redraft also proposes to bar any type of relief "for an accused or convicted offender,"
presumably to limit the protections of the amendment to "innocent" victims. But the provision
is nonsensical in many ways. There is no requirement that the accusation or conviction bear any
relation to the victimization incident; a woman convicted of shoplifting would have no rights
against a battering husband. There is no staleness limitation; an accusation or conviction 30 years
earlier would remove all rights from today's victim of a vicious assault. And what is an
"accusation?" Something less than an arrest (like Richard Jewell in the Olympics bombing)? Must
it come from law enforcement, or might it also come from the media, or within the community?
Why deny rights to an "accused offender" who is actually innocent? When, if ever, does an
"accusation" fade as a disqualification for victims rights? Why no distinction between felonies
and misdemeanors or petty offenses, or violent versus nonviolent crimes? Who is responsible for
investigating and determining whether victims have any prior convictions or accusations which
would render them ineligible for all the constitutional protections? The police in the middle of
an investigation? The prosecutor juggling hundreds of cases? If it is left to victims to voluntarily
disclose their ineligibility, what recourse do police or prosecutors have if the victim has lied, and
wrongfully consumed valuable governmental time and resources accommodating the victim's
rights? Could government officials sue victims for nondisclosure of their ineligibility? Could they
recover restitution? Would the nondisclosing victim be guilty of an offense herself? Will this
provision perversely turn victims into suspects — i.e., sending police and prosecutors the message
that they can cut their costs under the amendment by uncovering some dirt in the victim's past?

On the fundamental question of whether the proposed rights cannot just as well be
established by way of stawtes, executive orders and state constitutional provisions, Cassell knows
better than most that the U.S. Constitution offers no bar to any such approach. He has been


August 19, 1996
Page 8

involved in successful litigation sustaining state constitutional provisions on victims rights against
federal constitutional attack. In his lengthy and scholarly Senate testimony in April, he stated that
his research revealed absolutely nothing in the U.S. Constitution which would conflict with the
new federal victims rights amendment. He related the many ways in which the Utah constitutional
amendment, which he helped enact, has made a "dramatic difference" in improving the treatment
of victims in the Utah criminal justice system. At the same hearing, the co-chairman of the
National VCAN described compellingly and proudly his first-hand obser\'ations of the vastly
improved treatment of victims under state constitutional amendments, including those in
Colorado. Michigan and Florida, where the treatment of crime victims before and after adoption
of the amendment "differed as night does from day."

The proponents of a federal constitutional amendment have cited only two specific areas
where defendants rights under the U.S. Constitution have frustrated state constitutional protections
for victims: the exclusion of victims from a trial courtroom if they may later be called as a
witness, and the presentation of victim impact statements at time of sentencing. The President and
his staff cited cases on both these points on June 25 to show that amending the U.S. Constitution
was the only way to protect victims rights.

But both cases have now been overruled. On the victim-exclusion issue, the authority cited
was a Utah trial court's ruling that a defendant's due process rights would be violated by letting
a victim sit in the courtroom and hear other witnesses testify before testifying herself But just
two weeks after the White House press conference, in a case in which Cassell himself submitted
an amicus curiae brief the Utah Court of Appeals unanimously rejected this argument against the
state constitutional provision allowing the victim to be present throughout the trial. Utah v
Beltran-Felix, 1996 Utah App. LEXIS 75 (July 5. 1996). The court reviewed federal
constitutional challenges to victim/witness exclusion around the countr>', and found not a single
case suggesting any constitutional problem with such victim attendance. In his Senate testimony,
Cassell strongly agreed with this finding, citing numerous cases upholding exceptions from
sequestration orders for crime victims or family members: indeed, he went further, to suggest that
the confrontation, public-trial and due process provisions already in the U.S. Constitution
affirmatively mandate allowing victims to attend criminal trials.

In fact, the exclusion of victim/witnesses from trials does happen routinely, but it is based
on the rules of evidence, such as federal rule 615, rather than the Constitution. And just as rule
615 presently contains an exception of unquestioned constitutionality allowing the law
enforcement agent most familiar with the case to remain in the courtroom throughout the trial
even if he or she will later be called as a witness, so too could Congress simply add an exception
for victims. Such an amendment to the evidence rules could be detailed enough to include
safeguards such as allowing victims to testify first (the resolution contemplated by Justice
Department officials even under a constitutional amendment) or by videotape if later testimony
is desired. Situations where new victim testimony is needed later in a trial, such as rebuttal
testimony after the victim has heard other witnesses, could be dealt with by instructions to the
jury that the possibility of tailoring the testimony is a credibility question for them to weigh.


August 19. 1996
Page 9

Likewise, the victim-impact-statement case from New Jersey cited by the President was
overruled by the New Jersey Supreme Court just three days after the White House briefing. The
court upheld the provision in the state constitution allowing victim impact evidence, used in this
case in the sentencing phase of a murder trial, against challenges under both the federal and state
constitutions. State v. Muhammad, 59 Cr.L. 1385 (June 28. 1996). The victim's mother, whom
the President had at his side and whose emotional ordeal he described vividly, has alread> had
her rights vindicated without the need for amending the U.S Constitution.

The speed with which these specific arguments for amending the U.S. Constitution have
evaporated in the courts is a sobering example of why tampering with our nation's most sacred
charter is generally considered only as a last resort, after all the litigation is over and the U.S.
Supreme Court has firmly shut the door. Here, the litigation is in its infancy, and the door to
nonconstitutional victim protections remains wide open.

In summary, NLADA emphatically stands by the concerns expressed in the Washington
Post and our testimony. All current indications are that the amendment will bring the cnmmai
justice system to its knees, and offer negligible benefit for victims. And the harm will be inflicted
primarily on the public employees whose job is to fight crime and process criminal cases, with
potentially serious consequences for public safety and expenditures. It is no accident that the more
the amendment is studied by these key players in the justice system, the more they shrink from
it. Despite broad support for the goals of the amendment, and despite the obvious possibility of
ver)' quick action in Congress, major organizations are having difficulty endorsing a constitutional
amendment until the practical ramifications are better known and other approaches are weighed.

• The National Association of Attorneys General recently had the amendment under
consideration but could not endorse it. The June 1996 resolution referred to above, while
voicing strong support for state constitutional amendments and legislation, noted that
"questions have been raised about the impact of the proposed [federal] amendment on
state criminal and juvenile justice svstems," and called for the appointment of a working
group to study its impact and the need for it and to assess other ways to accomplish its
goals. The constitutional amendment would be endorsed and modifications recommended
only if the working group "determined that a constitutional amendment is necessar>'."

• The National District Attorneys Association had the amendment under consideration at
its July 1996 annual meeting. Amid philosophical agreement with the goals of the
amendment, practical concerns were raised, and a working group was appointed to study
the proposal and the range of other ways to achieve its goals.

• The American Bar Association Section of Criminal Justice, in a resolution proposed by
prosecutor members at its August 1996 meeting, stated strong support for the concept of
victims rights but urged trying legislation first. In amending the Constitution, "extreme
caution" was recommended to avoid interference with defendants' rights, judges'
discretion to manage court proceedings, and prosecutors' discretion to charge and plead.


August 19, 1996
Page 10

and to ensure that the costs are fully known and covered by appropriation.

• A letter from scores of law professors warns that the amendment could invalidate
numerous state laws regarding probation, parole, pretrial detention, intimidation and
stalking, restitution and victim-offender mediation. All would be subject to perpetual
federal court oversight. Indigent crime victims could demand court-appointed counsel. The
preclusion of compensatory remedies "reflects considerable confusion on why an
amendment is necessary and what purpose it would serve." The Constitution "should not
be amended unless there is a pressing necessity to do so, and no such necessity exists in
this instance."

• The U.S. Judicial Conference Committee on Criminal Law, in its July 16 letter to
Senator Biden, warned of decades of litigation refining the ambiguous concepts in the
amendment. It raised the possibility that the amendment might overrule the federal
mandatory restitution and habeas corpus reforms just recently enacted in the terrorism
legislation. It urged the "utmost prudence and caution" and "thorough and exhaustive
deliberation." It suggested that Congress "seriously consider initially promulgating these
rights statutorily" — a "prudent step [which] would much more easily accommodate any
'fine tuning' deemed necessary or desirable."

The concerns of such groups echo precisely the concerns NLADA has articulated. Our
concerns are no more false, or malicious, than theirs, and such accusations demean the accuser
more than those accused.

We hope that the Congress will not let the emotionalism of the debate short-circuit
rational discourse. There are many unexplored problem areas, and no need to rush. The Republic
has survived for over 200 years without a federal victims rights constitutional amendment; indeed,
victims rights have improved dramatically in recent years through statutory and state constitution-
al means. Taking the time to study the efficacy and potential impact of federal constitutional
versus other protections would seem to be the most likely route to true victim protection with
minimal unintended collateral harm to the American justice system.

We respectfully request that this submission be made a part of the formal record of the
Judiciary Committee's hearing.


H. Scott Wallace
Special Counsel

cc: Members of the Judiciary Committees


The W«5HWCTO(«PofT

• Fumy. Jura 2LI99(


Scott Wallace

Mangling the Constitution

The folly of the victims ' rights amendment.

Bob Dole has propoaed i consotutxxuJ tmendnwnt crating orw
nghu for cnme victuni. becauM. u be uys vitboui eiabanooa. the
praxtent must be on the side of the vKrtims.' Just this week. Presxlent
Clmtoa eodoned the Klea. too. Criminal defeadaots bave plenty otf
nghu. foes the reaacaing. so wtiy shouktn t vMrtzma.'

Such an uDeodmeot m>7 ^f^ tp pofatxaDy nresaDble. bat m fact there a
somethmf m it for luit about craytotiY to object to. mdudmg vmma.

Under the leadmg Senate measure, victims id every lederai. lUte and
local furudictloa would have the ngbt to be inionDed ot and be present
at any stage of the crmimal process at wtucb the deiendant might be
pmenL TVy would be enotled to obfca to a negooaied plea or a re-
lease tnxn custody Tber would be ffuaru teed a spee^ tnal aod I coo-
Cham tree trom unreaaooabk deiar hill rescmmoc trom the ofieader
pobce protection agiAui v»ieace or anmiflation by the acotaed or coo-
victed odeoder. and — ""«p»''»« but esaentul — some viy orf eniarast

Ifiliractice. though, bow would pobce feel about givmg victirai a coo-
stitutKnal ngbt to protectxjo from tunber v>o*eoce br their accused at-
ladLcr? Nobody m the oatioo no* has a cociflDrutX)oaJ ngbt to pobce prc^
tectxn. and for good rcasoo: lawsuits. Peopte unAappy with pobce
protectioo would sue to get more of iL People tnmred because there
wiml eoough of it vouM sue for money damages.

Proaecuton' nffir*^ would be ned m kmou. They curreotiy reaolve
omeoutotf 10 cuea by ptea agreement. Letting a vKxun block a plea
agreement means a lengthy trui. and it takes away a proaecutor i best
tool for mduoDg cooperatx» agamst more serxxii cnmioaia. Forang a
case to a 'speedy* trui before the proaecutjoo la ready belpa oottody but

Gj iie ujuii s officials woukto't know what fait them. About 5 tnilliao
people are tmder correctxioal coatroL 1.5 nlboo of wbom are inoLTcer-
aied. The day Uua coostitutiaQal a m en dm ent took effect. correctioQa au-
thorities voukl have to start identifymf, tradoog down and oocifnng
vKHms at cnmea that might be d ec adea old erery time any proceedmg
Bvolvmt an odcnder occured. fnnn setnng a rckase date to deoding

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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 20 of 24)