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 22 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 22 of 24)
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civilized can sustain this frightening trend.

At its best, government can help families. At its worst, it can hurt families, whether by
axing them too much or failing to deliver a quality education. But of all the wrong turns taken
by big govenimcnt. none has been a greater disaster than welfare. The system treats maniage,
work, and personal responsibility as irrelevant. It has produced a culmre of illegitimacy,
dependency, and self-destruction.

Rebuilding the family is the best juvenile crime prevention program we could hope for.
And we can start by reforming welfare. Last week, I announced a plan that will attack
illegitimacy and drag use, and give people on welfare the tools they need to work their way out
of dependency. Bill Clinton promised to "end welfare as we know it." Bob Dole is going to get
the job done.

But there is a difference between compassion for those bom into struggle and excuses for
those who choose lives of crime and violence. President Clinton's answer to juvenile crime has
included an array of social service programs. But fielding armies of well-meaning social workers
is not the way to prevent violent crime.

I have spent some time focusing on President Clinton's crime record because I believe
government has no higher responsibility than protecting its citizens. There are also few issues
where the gap between Bill Clinton's rhetoric and his record is so profound.

But I also believe that those who would lead this nation must do more than just criticize ~
we have an obligation to spell out the policies and principles we will use to guide our country
and meet its challenges.


I have already discussed my conunitment to ^>pointmg federal judges and prosecuton
dedicated to fighting crime Let me now tell you about pohcies I will implement as President to
replace crime-fighting rhetoiic with action.

Juvenile Justice Reform

Many of the rules of our juvenile justice system were designed when the worst offenses
committed by teenagers included joy-riding and truancy. Fortunately, many states are now
changing these rules, and revising their juvenile justice systems to reflect the violent realities of
our time.

The federal government can help lead by example. We must amend the federal laws to
ensure that juveniles who commit violent federal crimes are automatically prosecuted as adults.
A violent teenager who commits an adult crime should be treated as an adult in coun and should
receive adult punishment. Teenagers who rape, rob and murder should not be automatically
released when they turn 1 8 or 20. That's common sense, and it should be the law m every state
in the land.

The records of violent juvenile offenders should be available to courts, law enforcement,
and for the employment in sensitive jobs, such as daycare.

Closing the Gap Between Crime and Punishment

There are other steps we must take to protect the innocent people of this country.

We must close the gap between crime and punishment. That means ending parole for
violent offenders. We've already abolished parole at the federal level; some states have done so
as well. Now it's time to abolish parole all across America. About one in every three violent
crimes is committed by someone out on parole, probation or pretrial release. There is no excuse
for revolving-door justice. A convicted violent criminal should serve the full sentence.

As president, I will work with the governors to enstuc chat the states have the resources
they need to keep violent criminals in prison where they belong. I've been asked, how much
prison space do we need? My answer is as much as it takes to put space between hard core
criminals and law-abiding Americans.

We must work to protect the public from further harm at the hands of the criminal
population. Those now in the system — whether in prison or on parole, probation, or pretrial
release ~ should be periodically tested for drugs and penalized further if they use them. As
President, I will propose legislation requiring drug testing at every stage of the federal criminal
justice system, with appropriate sanctions for those who fail these tests. And 1 will work with the
governors to ensure that drug testing becomes the rule rather than the exception in their own state
criminal justice systems.


We must make life tougher for rapists. We passed Megan's Uw. >viuch requires the
states to establish registries and inform eomrounitie! when there are convicted child molesters
and other sex offenders in their midst. It's a good law. and it ought to be clarified to apply to all
persons convicted of statutory rape or forcible rape. This is just common sense; Rapists released
from prison are ten and a half times more likely to be arrested once again on a rape charge.

We must also crack down on those who produce and traffic in child pornography Today,
the federal penalties for child pornography are so lenient that some federal prosecutors choose to
put the defendants on trial for state charges, because the penalties are tougher. The federal
system must catch up with the tougher stote laws on child pornography. Let's have a minimum
of ten years for the first offense, 15 years for the second, and life for the third.

And we must not forget the victims of domestic violence. Men who commit violence
against women in the home must understand that their behavior is not just a "family matter." It
is our concern too. Domestic violence is as serious a crime as any crime in America today.

Ltga' Reform

Some refonns will touch the legal establishment itself I have a high regard for many
lawyers. And I do mean many - America has five percent of the worid's population but 70
percent of the worid's lawyers. But the profession has some faults, which are very clear to the
public. Despite the opposition of the American Bar Association and their liberal allies, the
Republican Congress succeeded in reforming the death penalty appeals process, so death row
inmates no longer can delay their sentences with years and years of of^en frivolous petitions. It
took more than a decade to fix the death penalty appeals process. But it was worth fighting for,
because no family should have to wait five, ten, or fifteen years until the person who killed their
loved one is finally punished. Justice delayed ia justice denied.

And, yes, there is more to do. A criminal trial should be devoted to finding the truth.
Too often trials turn into a game played by lawryers who seek to manipulate the rules and use
technicalities to hide the truth from the jury. But when key evidence is excluded from a trial on a
technicality, the victim of crime becomes a victim once again. I'm for due process, but I'm also
for due justice. Evidence should not be kept out of a trial when the police have acted tn good

Yittim'' »*?*»»'

We must spend more time looking out for the rights of victims rather than tryirvg to find
new rights to give to criminals. Everyone charged with a sex offense should be taken in for an
HIV test and the results released to the victim.

We've already tightened the federal rules of evidence to ensure that past acts of sexual
abuse are admissible in court. The stales should follow this example.

35-331 - 96 - 8


And we should pass and ratify an amendment to the Constitution giving crime victims
some basic rights, including the right to appear and stay informed of proce xiings involving their
victimizers. At least 20 states already have state constitutional amendments protecting victims'
rights. Let's extend those rights to every crime victim in America.

The president must be on the side of the victims. He must use the bully pulpit of the
White House to bring Americans together against criminals of every kind, whether it's drug
dealers, scam artists, killers on the streets, or those perpetrating new forms of terror ~ such as the
recent epidemic of fires at African American churches in the rural South. These hate crimes are
wrong, they are evil, and they have no place in the United States of America.

My friends, for years now, you and I have been told that society must bend over
backwards to defend the rights of criminals, because that's the price we have to pay for living in

Well, I know a thing or two about the price of freedom, and so do many here today. As
with most problems, I tend to view crime and violence through the eyes of a veteran. And when
I think about the violence in America, I think about the young men and women we as a nation
honored yesterday - those who went overseas to serve their country, and never had the chance to
live out their dreams and raise families of their own.

They did not go off to fight tyranny abroad so that America could one day fall under a
tyranny of violence at home. They fought for an America where people who live by the rules
could lead full lives without fear of violence.

I think also of the woman and the two men honored by this memorial, with the eloquent
reminder that "It is not how these officers died that made them heroes: it is how they lived."

They lived to fulfill a mission.^ make this community a safer place; to secure justice;
uphold the rule of law; and protect their families, friends, neighbors, and people whose names
they did not even know.

We honor their memory by continuing their mission. That's what the crime issue is all
about. It's about hard-fought freedoms we must never surrender to common criminals or
arrogant judges. It's about lives we can spare and neighborhoods we can still save. It's about a
country where justice and compassion go hand in hand. Its about an America where evil is
punished, and innocence has nothing to fear; a decent, pcacefiil country where every child can
once again play in safety - protected by the fiill majesty of the law.

Thank you very much, and God bless America.



September 4, 1996

The Honorable Orrin Hatch

The Honorable Joseph R Biden, Jr.

Ranking Minority Member
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

SEP 5 i^vo


The Honorable Henry Hyde

The Honorable John Conyers, Jr.

Ranking Minority Member
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Senators Hatch and Biden, and Representatives Hyde and Conyers:

We are law professors and practitioners who oppose the recent proposals to add a
"Victim's Rights" Amendment to the United States Constitution (S.J. Res. 52, H.J. 173 &
174, subsequent proposed "Draft Joint Resolutions"). Although we commend the desire
to help crime victims, we also believe amending the Constitution to do so is both
dangerous and unnecessary. Although there are specific proposals, our opposition is more
general as well. Our Constitution should not be amended unless there is a pressing need
to do so, and no such necessity exists in this instance.

A Victim's Rights" Amendment, if adopted, would signify a radical break with
over two hundred years of understanding and practice. It is dangerous because it would
significantly alter the balance between state and federal power over criminal justice
matters. It would drastically transform our constitutional commitment to protecting
individuals against the State. It is unnecessary because many of the specific provisions
listed in current versions of the proposed amendment already exist under statutes and state
constitutions. Further, the amendment could impose substantial costs on states and the
federal courts. Support for crime prevention, not more federal government intrusion on
the states' traditional power, is the real solution to the problem of victimization.

The amendment is completely unnecessary to give states power to give victims
rights. Law enforcement and criminal law have always been considered one of the primary
powers reserved by the Constitution to the states, subject to certain limitations imposed by
the Bill of Rights. States have not ignored the significant voice of victims in state
legislatures, which have been responsive to victims' concerns in enacting cnminal and
sentencing laws, as well as laws specifically designed to assist victims. Although "only"
about twenty states have state constitutional provisions for "victim's rights," almost aH
states already have statutes providing for some victim participation in sentencing
proceedings, and/or restitution to victims. A "Victim's Rights" amendment would subject


Law Professor s Letter to Congress
August 30. 1996
Page 2

these state laws regarding crime victims, as well as state laws defining crimes and
sentences, to federal oversight. '

The proponents of the amendment argue the need to "balance" the nghts of the
victim against the constitutional rights of the accused, but our criminal law ser\'es the
public interest in assuring justice for aH pe.ple. It is the government, not the victim,
which declares what is or is not a crime, prosecutes criminal offenses, and imprisons and
executes persons. The Bill of Rights was adopted precisely to protect individuals,
however unpopular, from governmental abuses and to preserve liberty. The vast majority
of individuals charged with a crime are at a distinct disadvantage in terms of resources,
power, and ability to defend themselves against the government. Invoking the very real
concerns of victims of crime to amend the Constitution in a manner that could
substantially undermine fundamental protections for individuals against unreasonable
governmental intrusions, including protections against arbitrary taking of liberty, property,
life, and forced confessions, threatens our commitment to individual rights. Derivative
rights, such as the presumption of innocence and the requirement of proof of guilt beyond
a reasonable doubt, have worked to ensure that only the guilty are punished. If alleged
and actual victims of crime are given a constitutional right to "justice," as under S.R. 52,
or to a "final conclusion free from unreasonable delay," as under both proposals, such
textual rights could override these historical protections against wrongful imprisonment
and conviction of the innocent.

The direct and indirect costs of an amendment could be enormous. Either version
of the amendment creates vast uncenainties and conflicts that legislatures and courts
would have to address, resulting in more, not less, uncertainty in the criminal justice
process. The courts, already overburdened with criminal cases, would need additional
judges and personnel. Crime victims who cannot afford attorneys certainly would argue
that they have a right to court-appointed counsel to assist them in exercising their rights,
just as defendants do now. If crime victims have a right to be heard in any proceeding
affecting "custody," even routine hearings could become complex and time consuming.
Conflicts between defendants' rights and victims' rights — the right to a "speedy trial" or
"final resolution free from unreasonable delay," for example — would increase litigation
and appeals.

If crime victims exercise the right to object to a plea bargain under S.R. 52, they
could force prosecutors to try cases even if the evidence cannot support the original
charges. Other victims might insist on bargains that are too lenient. Pressure for speedy
trials and final resolutions could force prosecutors to try cases before they have adequate

1 A "Viciim's Rights" amendment could invalidate numerous state laws and would require extensive law
re\ision at the local and state level. State laws regarding probauon. parole, preinal detenuon, plea
bargaining, intimidauon. and stalking, and other laws would all be subject to constituuonal challenge or
federal regulation. State victim-offender mediation programs might violate the right to full resutution, as
would state statutes that provide for restitution to the extent possible. Other flexible, local responses
meant to address specific needs or concerns could also be foreclosed if there is a consututional


Law Professor 's Letter to Congress
August 30. 1996
Page 3

evidence to convict an accused and place pressures on trial and appellate couns to reach
decisions without due deliberation. Further, both S.R. 52 and the Draft create substantial
difficulties in identifying who is properly a victim and what remedies, if any, victims have if
their rights are violated. While S.R. 52 would probably allow victims to sue for damages
for deprivation of rights under color of state law, the Draft explicitly excludes such
damages, arguably leaving victims without a meaningfiil remedy for violation of the right
to protection and few, if any, remedies for violations of other rights enumerated in the

Congress has a special historical, legal, and political responsibility to be cautious
and deliberate in amending the Constitution. Even where deep concern about a specific
issue exists, the Constitution ought not be amended without carefiil consideration of the
alternatives. Abundant alternatives exist here: Congress and the states already have
helped and can continue to help crime victims through statutes. All can demonstrate
compassion and concern for victims without an ill-advised amendment. We urge you not
to support adding a "Victim's Rights" amendment to the United States Constitution.


* Institutional Affiliations Listed for Identification Purposes Only.

Professor Lynne Henderson
Indiana University— Bloomington

Mr. Richard Abel
McConnell Professor
UCLA School of Law

Professor George J. Alexander
School of Law, Santa Clara University

Professor Larry Alexander
University of San Diego School of Law

^ Crime victims who belie\'c their rights are infringed or impaired certainly might seek injimctions
against courts, prosecutors, and legislatures to enforce their rights, causing confusion, delay, and potential
interference with the administration of justice as well as the democratic process. Under S.R. 52. if victims
do not feel that they have been treated with dignity and respect, have not been adequately proteaed by the
police, or have not received what they believe is "justice," they arguably could sue for depnvation of civil
rights under color of state law. But under the Draft, see section 2. victims have no right to damages, even
if they do nor receive "reasonable protection" from fiirther harm by the offender, nor would victims have
"grounds" . . . "to challenge a charging decision or a conviction," even though these obviously affea the
rights to be heard regarding pleas, release from custody, length of ■sentence, etc. If nothing else, these
conflicts reflect considerable confusion on why an amendment is necessary and what purpose it would


Law Professor s Letter to Congress
August 30. 1996
Page 4

Professor Ronald Jay Allen
Northwestern Universit>' School of Law

Mr. Albert W. Alschuler
Wilson-Dicicinson Professor
University of Chicago L :w School

Professor Scott Altman

University of Southern California Law Center

Mr. Alfred C. Aman
Dean and Professor
School of Law, Indiana University—Bloomington

Mr. Anthony G. Amsterdam

Judge Edward Weinfeld Professor and Direaor Lawyering Program

NYU School of Law

Assistant Professor Keith Aoki
University of Oregon School of Law

Professor Peter AreneUa

University of California at Los Angeles School of Law

Professor Barbara Allen Babcock
Stanford Law School

Professor Susan Bandes

DePaul University School of Law

Professor Stephen Bamett

University of California (Berkeley) Boalt Hall

Professor Katherine T. Bartlett
Duke University School of Law

Professor Robert Batey

Stetson University School of Law

Assistant Professor Theresa M. Beiner
University of Arkansas-Little Rock School of Law

Professor Susan Bennett

American University, Washington College of Law


Law Professor 's Letter to Congress
August 30. 1996
Page 5

Professor Curtis Berger
Columbia Law Sciiool

Professor Vivian Berger
Columbia University School of Law

Professor Barbara E. Bergman
University New Mexico School of Law

Professor Guyora Binder
SUNY-BuflFalo School of Law

Professor John Charles Boger
University North Carolina School of Law

Assistant Professor Anthony Bomstein
American University, Washington College of Law

Professor Cynthia Grant Bowman
Northwestern University School of Law

Professor Shirley Brandman

American University, Washington College of Law

Associate Professor William J. Bridge
SMU School of Law

Professor Karen B. Brown
University of Minnesota School of Law

Professor Kenneth S. Brown
University North Carolina School of Law

Professor Mark R. Brown
Stetson University School of Law

Professor Penelope Bryan
University of Denver College of Law

Professor John M. Burkoff
University of Pittsburgh School of Law

Associate Professor Scott Burris
Temple University School of Law


Law Professor 's Letter to Congress
August 30. 1996
Page 6

Professor Roben Calhoun
Golden Gate Law School

Mr. Paul D. Carrington

Harry R. Chedwick^ Senior Professor Chair

Dui 2 University School of Law

Professor Erwin Chemerinsky

Legion Lex Professor

University of Southern California Law School

Assistant Professor Donna Coker
University Miami School of Law

Professor David A. Cole
Georgetown University Law Center

Professor James E. Coleman
Duke University School of Law

Professor Daniel O. Conkle

School of Law, Indiana University— Bloomington

Professor Mary Coombs
University Miami School of Law

Professor John Copacino
Georgetown University Law Center

Professor James D. Cox
Duke University School of Law

Ms Cathy Crosson


Indiana University— Bloomington

Assistant Professor David Cruz

University of Southern California Law Center

Professor Jerome McCristal Culp
Duke University School of Law


La\v Professor's Letter to Congress
August 30. 1996
Page 7

Ms. Angela J. Davis

Visiting Associate Professor

Washington College of Law, American University

Professor Peter Davis
Touro College Law Center

Professor Connie De La Vega

School of Law, University of San Fransisco

Professor John Denvir

School of Law, University of San Fransisco

Professor AJan Dershowitz
Harvard Law School

Professor Roben Dinerstein

American University, Washington College of Law

Professor Joshua Dressier

University of the Pacific, McGeorge School of Law

Mr. Robert F. Drinan, S.J.


Georgetown University Law Center

Professor Steven B. Duke
Yale Law School

Professor M. Bruce Duthu
Vermont Law School

Professor Femand N. Dutile
Notre Dame University Law School

Professor Deborah Epstein
Georgetown University Law Center

Professor Julian Eule

University of California at Los Angeles School of Law

Professor Stephen M. Feldman
University of Tulsa School of Law


Law Professor s Letter to Congress
August 30. 1996
Page 8

Professor Catherine Fisk

Loyola of Los Angeles Law School

Professor Eric M. Freedman
Hofstra University School of Law

Professor Lawrence M. Friedman
Stanford Law School

Ms. Lynda Frost

Assistant Professor, University of Virginia Law School

Professor, Institute of Law, Psychiatry, and Public Policy, University of Virginia

Professor Mary Ellen Gale
Whinier College of Law

Ms. Barbara J. Gilchrist

Associate Clinical Professor

St. Louis University School of Law

Professor Daniel Givelber
Northeastern University School of Law

Professor Donald Gjerdingen

School of Law, Indiana University— Bloomnigton

Miye Goishi

Clinical Attorney, Civil Justice Clinic

Hastings College of the Law

Professor David Goldberger

Ohio State University School of Law

Associate Professor Phyllis Goldfarb
Boston College Law School

Professor Robert D. Goldstein
XJCLA School of Law

Professor Gary S. Goodpaster

University of California Davis School of Law

Professor Jeffrey N. Gordon
Columbia Law School


Lcnv Professor s Letter to Congress
August 30. 1996
Page 9

Professor Stephen Gottlieb
Albany Law School

Professor Kenneth W. Graham

University of California at Los Angeles School of Law

Professor Michael Green
University of Iowa College of Law

Professor Edwin Greenebaum

Lndiana University—Bloomington School of Law

Professor Tom Grey
Stanford Law School

Professor Samuel R. Gross
University of Michigan School of Law

Mr, Martin Guggenheim

Professor and Director of Clinic and Advocacy Program

NYU School of Law

Professor Gerald Gunther

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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 22 of 24)