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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

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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 23 of 24)
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Stanford Law School

Professor Gwen Thayer Hadelman
Washington and Lee University School of Law

Professor Janet Halley
Stanford Law School

Professor David Harris

University of Toledo College of Law

Professor Susan N. Herman
Brooklyn Law School

Professor Randy Hertz
NYU School of Law

Mr. Joseph Hoffinann

Professor and Associate Dean

School of Law, Indiana University-Bloomington



232



Law Professor 's Letter to Congress
August 30. 1996
Page 10

Associate Professor Sarah J. Hughes

School of Law, Indiana University—Bloomington

Associate Professor Steve Johnson

School of Law, Indiana University— Bloomington

Professor John Junker

University Washington School of Law

Professor Kenneth Karst

University of California at Los Angeles School of Law

Professor Mark G. Kelman
Stanford LawSchool

Professor Kit Kinports

University of Illinois School of Law

Professor Richard Klein
Touro College Law Center

Ms. Ellen Kreitzberg

Associate Professor and Director Trial and Appellate Advocacy Program

Santa Clara University School of Law

Mr. Paul M. Kurtz

Associate Dean and J. Alton Hosch Professor

University of Georgia School of Law

Mr. Richard Leo

Adjunct Professor, School of Law

Assistant Professor of Sociology, University of Colorado

Professor Leon Letwin

University of California at Los Angeles School of Law

Visiting Professor John Leubsdorf
Rutgers-Newark School of Law

Mr. David I. Levine
Hastings College of Law

Professor Jerome Levinson

American University, Washington College of Law



233



Law Professor s Letter to Congress
August 30. 1996
Page 11

Ms. Holly Maguigan
Professor of Clinical Law
NYU School of Law

Ms. Carolyn McAilaster

Lecmrer

Duke University School of Law

Professor Miguel A. Mendez
Stanford Law School

Mr. Roy M. Mersky

Atlas Family Centennial Professor and Director of Research

University of Texas at Austin School of Law

Professor Binny Miller

American University, Washington College of Law

Professor Elliott Milstein

American University, Washington College of Law

Mr. Ralph James Mooney

Kaapke Professor

University of Oregon School of Law

Professor Martha Morgan
University of Alabama School of Law

Professor Herben Morris

University of California at Los Angeles School of Law

Professor Robert Mosteller
Duke University School of Law

Professor Joel S. Newman

Wake Forest University School of Law

Ms. Theresa Newman

Lecturer

Duke University School of Law

Professor Nell Newton

American University, Washington College of Law



234



Law Professor s Letter to Congress
August 30. 1996
Page 12

Mr. James M O'Fallon

Frank Nash Professor

University of Oregon School of Law

Professor Charles J. Ogletree
Harvard Law School

Associate Professor David Oppenheimer
Golden Gate University School Of Law

Associate Professor Aviva Orenstein

Indiana University— Bloomington School of Law

Professor Richard L. Ottinger
Pace University School of Law

Associate Professor Victoria Palacios
SMU School of Law

Assistant Professor Margaret L. Paris
University of Oregon School of Law

Ms. Cynthia J. Reichard

Associate Dirertor, Legal Research and Writing

Indiana University—Bloomington School of Law

Professor Deborah Rhode
Stanford Law School

Professor Richard A. Rosen

University North Carolina School of Law

Professor Arthur Rosett

University of California at Los Angeles School of Law

Mr. Thomas D. Rowe, Jr.

Elvin R Latty Professor

Duke University School of Law

Judge Stephen W. Russell

Professor F. Thomas Schomhorst

Indiana University—Bloomington School of Law



235



Law Professor 's Letter to Congress
August 30. 1996
Page 13

Mr. David Schuman

Associate Dean and Associate Professor

University of Oregon School of Law

Professor Louis Michael Seidman
Georgetown University Law Center

Professor Ann C. Shalleclc

American University, Washington College of Law

Professor Gary M. Shaw
Touro Law Center

Professor Melvin Shimm
Duke University School of Law

Professor Maijorie A. Silever
Touro University Law Center

Professor William Simon
Stanford Law School

Professor Abbe Smith
Georgetown University Law Center

Professor Girardeau A. Spann
Georgetown University Law Center

Assistant Professor Susan J. Stabile
St. John's University School of Law

Professor Irwm P. Stotzky
University of Miami School of Law

Professor J. Alexander Tanford
Indiana-Bloomington School of Law

Professor David Tarbert

Assistant Professor, SMU School of Law

Director, Criminal Justice Clinic

Associate Professor Kim Taylor-Thomson
Stanford Law School



236



Lcnv Professor 's Letter to Congress
August 30. 1996
Page 14

Mr. Anthony Thompson
NYU School of Law

Professor Mary Twiichell
University of Florida College of Law

Professor William Van Alstyne
William and Thomas Perkins Professor
Duke University School of Law

Professor Eugene Voloch

University of California at Los Angeles School of Law

Associate Professor Heathcote W. Wales
Georgetown University

Professor Burton Wechsler

American University, Washington College of Law

Professor Robert Weisberg
Stanford Law School

Mr. Charles D. Weisselberg

Clinical Professor

University Southern California Law Center

Mr. Harry Wellington
Dean and Professor
New York Law School

Professor Robin West
Georgetown University Law Center

Professor Welsh S. White
University Pittsburg School of Law

Professor Stephanie Wildman

School of Law University of San Fransisco

Professor David Williams

School of Law, Indiana University— Bloomington

Professor Susan H. Williams

Indiana University—Bloomington School of Law



237



Law Professor 's Letter to Congress
August 30. 1996
Page 15



Professor Larry W Yackle
Boston University School of Law

Mr. Steven Zeidman

Assistant Professor of Clinical Law

NYU School of Law

Ms. Mary Marsh Zulach

Clinical Professor

Columbia University School of Law



cc: Members of the United States Senate

Members of the Unites States House of Representatives



238



HARVARD UNIVERSITY
LAW SCHOOL



Laurence H. Tribe

Ralph S. Tyler, Jr Profeuor
of Constitutional Law




Hauser Hall 420

Cambridge, Massachusetts 02138

(617) 495-4621



Via Fax and Federal Express



The Honorable Orrin Hatch

Chainnan
The Honorable Joseph R. Biden, Jr.

Ranking Minority Member
Committee on the Judiciary
United States Senate
Washington. D.C. 20501



September 11, 1996

The Honorable Henry Hyde

Chairman
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:

I have read the letter from law professors, dated September 4, 1996, attacking the proposed
Victim's Rights Constitutional Amendment. Although I share many of the broad views set forth
in the letter — including the views that the ConstiniQcn should not be amended without a strong
need and that the constimtional rights of persons accused of crime should not be sacrificed in order
to serve other values — I do not believe the letter makes a convincing or even a coherent case for
its uldmate conclusions. The case for the proposed amendment need not rest on some nebulous
nodon that the playing field must be balanced as between criminal defendants and crime vicdms.
It rests on the twin propositions (1) that victims have important human rights that can and should
be guaranteed protection without endangering the genuine rights of those accused or convicted, but
(2) that attempts to protect these rights of victims at the state level, or tiirough congressional
legislation, have proven insufficient (although helpful) in hght of the concern — recurring even if
misguided — that taking victims' rights seriously, even when state or federal statutes or state
constitutions appear to require doing so, will somehow be unfair to the accused or to others even
when no actual constitutional rights of the accused or of anyone else would be violated by
respecting the rights of victims in the manner requested. The proposed amendment would, in
essence, counteract this problem.

If and when the proposed amendment is reported out of committee for floor debate, I will
prepare a rejoinder to the professors' letter, taking into account the specific language that the Senate
and House Committees ultimately recommend. Indeed, I wish I had the time even now to address
in greater detail the points made in that letter — both the points explaining the authors' general
opposition to the idea of any such amendment, and the points elaborating the authors' misgivings



239



Senators Hatch and Biden,

and Representatives Hyde and Conyers
September 11, 1996

about what they evidently assume the amendment will say. But other commitments preclude my
doing so at this time; and, in any event, the professors' letter is obviously directed at a proposal that
differs in various relevant details from the latest draft of which I am aware, and it would make
much more sense for me to respond to objections that have taken into account what your respective
committees recommend to Congress than to respond to objections that quite transparently miss the
mark.

In the meantime, I am taking the liberty of attaching a brief memorandum dated Jime 27,
1996, that I prepared well before the most recent round of drafting took place, on the broad topic
of why an amendment along these lines ought to be adopted, and why the standard objections (that
states have ample authority to protect victims without this amendment, that Congress could also do
so by simple legislation, that the amendment would endanger the rights of defendants and the needs
of law enforcement, etc.) are superficially plausible but ultimately misguided. Please feel free to
make whatever use you wish of that memorandum and of this letter.

Sincerely yours,
Laurence H. Tribe



Enc.



Senator Dianne Feinstein
Senator Jon Kyi



240



HARVARD UNIVERSITY
LAW SCHOOL
Laurenc ^ H. Tribe i 1 Hauser Hau. 410

Ralph S. Tyler. Jr. Professor ffl|SS CAMBRIDGE, Nt^SACHL'SETTS OiijS

o/Constuuttonal Lrw \ jIl_T/ (t>i7) 495-4621




Victims' Rights

Laurence H. Tribe.
June 27, 1996



Beginning with the premise that the Constitution should not be amended lightly and should
never be amended to achieve short-term, partisan, or purely policy objectives, I would argue that
a constitutional amendment is appropriate only when the goal involves (1) a needed change in
government structure, or (2) a needed recognition of a basic human right, where (a) the right is one
that people widely agree deserves serious and permanent respect, (b) the right is one that is
insufficiently protected under existing law, (c) the right is one that cannot be adequately protected
through purely political action such as state or federal legisladon and/or regulation, (d) the right is
one whose inclusion in the U.S. Constitution would not distort or endanger basic principles of the
separation of powers among the federal branches, or the division of powers between the national
and state governments, and (e) the right would be judicially enforceable without creating open-
ended or otherwise unacceptable funding obligations.

I believe that a properly drafted victims' rights amendment would meet these criteria. The
rights in question — rights of crime victims not to be victimized yet again through the processes
by which government bodies and officials prosecute, punish, and release the accused or convicted
offender — are indisputably basic human rights against government, rights that any civilized system
of justice would aspire to protect and strive never to violate. To protect these rights of victims does
not entail constitutionalizing the rights of private citizens against other private citizens; for it is not
the private citizen accused of crime by state or federal authorities who is the source of the violations
that victims' rights advocates hope to address with a constitutional amendment in this area. Rather,
it is the government authorities themselves, those who pursue (or release) the accused or convicted
criminal with insufficient attention to the concerns of the victim, who are sometimes guilty of the
kinds of violations that a properly drawn amendment would prohibit

Pursuing and punishing criminals makes little sense unless society does so in a manner that
fully respects the rights of their victims to be accorded dignity and respect, to be treated fairly in
all relevant proceedings, and to be assured a meaningful opportunity to observe, and take part in,
all such proceedings. These are the very kinds of rights with which our Constimtion is typically
and properly concerned. Specifically, our Constitution's central concerns involve protecting the
rights of individuals to participate in all those government processes that direcUy and immediately
involve those individuals and affect their lives in some focused and particular way. Such rights
include the right to vote on an equal basis whenever a matter is put to the electorate for resolution
by voting; the right to be heard as a matter of procedural due process when government deprives
one of life, liberty, or property; and various rights of the criminally accused to a speedy and public



241



trial, with the assistanc of counsel, and with various other participatory safeguards including the
right to compulsory process and to confrontation of adverse witnesses. The parallel rights of
victims to participate in these proceedings are no less basic, even though they find no parallel
recognition in the explicit text of the U.S. Constitution.

Courts have sometimes recognized that the Constitution's failure to say anything explicit
about the right of the victim or the victim's family to observe the trial of the accused should not be
construed to deny the existence of such a right — provided, of course, that it can be respected
consistent with the fair-trial rights of the accused. In Richmond Newspapers v. Virginia, 448 U.S.
555 (1980), for example, the plurahty opinion, written by Chief Justice Burger, noted the way in
which protecting the right of the press and the public to attend a criminal trial — even where, as
in that case, the accused and the prosecution and the trial judge all preferred a closed proceeding
— serves to protect not only random members of the public but those with a more specific interest
in observing, and right to observe — namely, the dead victim's close relatives. See 448 U.S. at 571
("Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal
laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see
justice done — or even the urge for retribution."). Although the Sixth Amendment right to a public
trial was held inappbcable in Richmond Newspapers on the basis that the Sixth Amendment secures
that right only to the accused, and although the First Amendment right to free speech was thought
by some {see, e.g., 448 U.S. at 604-06 (Rehnquist, J., dissenting)) to have no direct bearing in the
absence of anything like government censorship, the plurality took note of the Ninth Amendment,
whose reminder that the Constitution's enumeration of explicit rights is not to be deemed exclusive
furnished an additional ground for the plurality's conclusion that the Constitution presupposed,
even though it nowhere enumerated, a presumptive right of openness and participation in trial
proceedings. See 448 U.S. at 579-80 & n.l5 ("Madison's efforts, culminating in the Ninth
Amendment, served to allay the fears of those who were concerned that expressing certain
guarantees could be read as excluding others.").

I discuss Richmond Newspapers in some detail here not Just because I argued that case but
because it illustrates so forcefully the way in which victims' rights to observe and to participate,
subject only to such exclusions and regulations as are genuinely essential to the protection of the
rights of the accused, may be trampled upon in the course of law enforcement simply out of a
concem with administrative convenience or out of an unthinking assumption that, because the
Constitution nowhere refers to the rights of victims in so many words, such rights may and perhaps
even should be ignored or at least downgraded. The happy coincidence that the rights of the
victims in the Richmond Newspapers case overlapped with the First Amendment rights of the press
prevented the victims in that case — the relatives of a hotel manager who had been found stabbed
to death — from being altogether ignored on that occasion. But many victims have no such luck,
and there appears to be a considerable body of evidence showing that, even where statutory or
regulatory or judge-made rules exist to protect the participatory rights of victims, such rights often
tend to be honored in the breach, not on the entirely understandable basis of a particularized
determination that affording the victim the specific right claimed would demonstrably violate some
constitutional right of the accused or convicted offender, but on the very different basis of a barely-



242



considered reflex that protecting a victim's rights would represent either a lux iry we cannot afford
or a compromise with an ignoble desire for vengeance.

As long as we do so in a manner that respects the separation and division of powers and
does not invite judges to interfere with law enforcement resource allocation decisions properly
belonging to the political branches, we should not hesitate to make expUcit in our Constitution the
premise that I believe is implicit in that dociunent but that is unlikely to receive full and effective
recognition unless it is brought to the fore and chiseled in constimtional stone — the premise that
the processes for enforcing state and federal criminal law must, to the extent possible, be conducted
in a manner that respects not only the rights of those accused of having committed a crime but also
the rights of those they are accused of having victimized.

The fact that the States and Congress, within their respective jurisdictions, already have
ample afBrmative authority to enact rules protecting these rights is a reason for not including new
enabling or empowering language in a constitutional amendment on this subject, but is not a reason
for opposing an amendment altogether. For the problem with rules enacted in the absence of such
a constitutional amendment is not that such rules, assuming they are enacted with care, would be
struck down as falling outside the affirmative authority of the relevant jurisdiction. The problem,
rather, is that such rriles are likely, as experience to date sadly shows, to provide too little real
protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer
inertia, or any mention of an accused's rights regardless of whether those rights are genuinely
threatened.

Of course any new constitutional language in this area must be drafted so that the rights of
victims will not become an excuse for running roughshod over the rights of the accused. Any
constitutional amendment in this field must be written so that courts will retain ultimate
responsibility for harmonizing, or balancing, the potentially conflicting rights of all participants in
any given case. But assuring that this fine-tuning of conflicting rights remains a task for the
judiciary should not be too difficult What is difficult, and perhaps impossible, is assuring that,
under die existing system of rights and rules, the constitutional rights of victims — rights that the
Framers of the Constitution undoubtedly assumed would receive fuller protection than has proven
to be the case — will not instead receive short shrift

To redress this imbalance, and to do so without distorting the Constitution's essential
design, it may well be necessary to add a corrective amendment on this subject Doing so would
neither extend the Constitution to a purely poUcy issue, nor provide special benefits to a particular
interest group, nor use the heavy artillery of constitutional amendment where a less radical solution
is available. Nor would it put the Constitution to a merely symboUc use, or enlist it for some
narrow or partisan purpose. It would instead, if the provision were properly drafted, help solve a
distinct and significant gap in our existing legal system's arrangements for the protection of basic
human rights against an important category of governmental abuse.



243



The Ste phanie Roper Committee, Inc.

14804 Pratt Street «1. Upper Marlboro. Maryland 20772
Phone; (301) 952-0063 / FAX: (301) 952-2319




July 16, 1996



Honorable Henry Hyde, Chairman
Committee on the Judiciary
House of Representatives
2138 Rayburn House Office Bldg.
Washington, DC 20515-6216

Dear Chairman Hyde:

I was honored to testify m support of the federal constitutional
amendment for crime victims' rights on July 11, 1996. Thank you
for inviting me to share my experiences, both as a victim/survivor
and as an advocate for the need for this amendment.

All of us welcomed the opportunity to have this important dialogue
before the Committee on the Judiciary. I do, however, have some
personal concerns that I wish to share with you as a result of the
questions directed to the victim panel . Because of the diversity
of our experiences and the presence and absence of statutory and
constitutional rights in our respective states, the answers we gave
may have created additional questions. In my view howeve , they
demonstrate the need for a federal amendment that will clarify and
protect certain fundamental rights for victims of crime in every
state in our nation.

I coiTunend your understanding and eloquence in regard to the nature
of a constitutional amendment. In Maryland, we succeeded with an
amendment that is a basic statement of core values that can stand
on Its own, but is implemented through enabling legislation.

Consequently, the issue of HIV testing, in my view, is one that
should be and is being addressed by statutes m many states (see
Maryland law. Article 27, Section 855). The issue of enforcement
remedies is very important: however, I believe that it is not about
the ability to sue for monetary damages. There may be several
possible remedies that include: requesting the trial judge to
determine the right; relief by leave to appeal, certiorari,
mandamus, etc.. While in Maryland, this relief has only been
utilized on behalf of victims in a couple of cases, it has enabled
the victims to test the law.

The attorney who is the lobbyist and legal counsel for our
organization and for Maryland's amendment offers his assistance as
we proceed in resolving the language of the amendment. His name is
Russell P. Butler, Esq. and he may be reached at (301) 423-7500.

'one person can make a difference and every person should try



244



In regard to previous communication with you about restitu ion, and
your request for information to improve the collection of
restitution, I am enclosing some materials we have obtained. We
believe that much can be learned from the Office of Child Support
and Enforcement. They have been successful in collecting past-due
child support through a Federal income Tax Refund Offset program
that has resulted in nationwide collections of over $685 million
dollars in FY 1994. I am enclosing pages from the CHILD SUPPORT
ENFORCEMENT ANNUAL REPORT TO CONGRESS, 1994, m regard to the
Social Security Amendments of 1994, and the Federal Parent Locator
Service. Also enclosed is a 1991 discussion draft introduced by
Maryland Congressman Hoyer who was approached at that time to
explore remedies.

We hope this information will be helpful to you. Obviously, we
need federal authority to proceed if restitution collections are to
improve .

Thank you for your assistance in this matter, and for your
leadership on behalf of the crime victims' amendment. We can have
a criminal justice system that respects and protects the rights of
crime victims, and ensures a fair trial to those accused of crime.
I look forward to hearing from you.

Sincerely ,



Roberta Roper
Director



245



Child Support
Enforcement
Nineteenth Annual
Report to Congress



For the Period Ending September 30, 1994



I



^r>l«vic,j



d\



.S. DEPARTMENT OF

EALTH AND HUMAN SERVICES

Administration for Children and Families
Office of Child Support Enforcement



246



For contested paternity cases, the regulation requires States to have a variety of


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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 23 of 24)