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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 7 of 24)
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adequately punish criminals.



44

Additionally, we have an obligation to take seriously our responsibility to consider
amending the Constitution only to articulate basic and fundamental rights and not
use the amendment process to achieve insignificant or purely political objectives.

President Clinton has stated that he supports a victims rights amendment in
principle but has not focused on the particular language of such amendment.

We will hear testimony from various witnesses on two proposals, H.J. Res. 173
and H.J. Res. 174. Both proposals state that these rights would apply primarily in
the context of violent crimes and other specified crimes. Before examining those pro-
posals, we also need to examine the current state of the law with respect to the
rights of victims, particularly as it relates to violent crimes.

I am very interested in the testimony that we hear today because I believe that
both the proponents and opponents of a victims rights amendment to the Constitu-
tion are sincere in their views. I look forward to a spirited debate on this important
issue.

Ms. Jackson Lee. I too believe that we have had many occur-
rences that have tragically highlighted the sometimes inequity be-
tween those who are accused and those who are victims. In the
State of Texas, for a very long time, victims rights groups had
pressed our State leadership to allow them in instances where
there was the death penalty, to be able to view that. Of course the
debate raged on for a long period of time, for many thought that
that would be a hindrance of sorts. I think after the matter was
reviewed in the proper light, those victim groups were, if you will,
prevailed. But at the same time as they prevailed, the State recog-
nized that it must be handled in a humane manner as well, when
victims would be able to view, if you will, the taking of a life pursu-
ant to the justice system.

I am curious about this constitutional amendment, because you
have made very compelling statements and arguments today.
Needless to say, all of us come from jurisdictions where we have
interacted with victims of which we wish we had not. We would
have preferred seeing them at some charitable event or some cele-
bration like July Fourth, but we see them in their humanness.

I would only seek your, if you will, opinion or assessment, and
I'll ask all three of you, as I look at some of the States that have
constitutional amendments, I see there is one in Ohio. Did I under-
stand that one of the witnesses is from Ohio? OK. I would appre-
ciate the understanding, because you have been very kind of us
this morning. You have said these are works in progress, we want
to work with you. I appreciate that attitude. That we would not
want to do anything to a constitution that takes away its stability
and the sacredness of the document. We have faced that over the
last 2 years of the time that I've been in Congress. Many of us have
sensed that the Constitution has lasted because if its integrity.

So as I look at some of the States that have offered constitutional
amendments that deal with victims' rights, help me understand
how these provisions, which I believe are extremely credible and
fair, the notice provision, the right to be heard at sentencing, cer-
tainly the notice of an offender's escape or release so that you are
not threatened every day of your life in terms of wondering as you
look over your shoulder. The physical protection from the defend-
ant, recognizing that though we would not want to have criminal
minds and criminal actions, people do do criminal acts. There is
some psychic to that that brings about potentially a violent char-
acter.



45

I believe in rehabilitation. I believe in opportunities to invest on
the front end so that we don't get these kinds of people. Tragically,
we do have them. But if you would just comment on how the Fed-
eral constitutional amendment, the amending of the Constitution
would be more effective than what I see here has taken up in at
least a large number of States, and I understand that two others,
Connecticut and Indiana, are on the ballot.

Mrs. Roper, if you would start, I'd appreciate it.

Mrs. Roper. Well, first again, I would like to repeat what Sen-
ator Feinstein said that as good as the existing statutes and State
constitutional amendments are, thev represent a patchwork. We
need a level standard — a blanket, if you will, to cover any victim
of any crime. There isn't a better example of this need today than
the victims of the Oklahoma City blast. These victims not only
have suffered the tragedy in their personal lives, but have the in-
convenience of having to go to another State for a trial. They are
in Colorado, which has one of the strongest constitutional amend-
ments. Yet they are discovering that as Federal victims of crime,
that constitutional amendment does not apply to them.

I understand that the judge has indicated that he will exclude
even nonsubpoenaed witnesses from that proceeding, because of the
potential for their statements at sentencing.

Mr. Hyde. The gentlelady's time has expired.

Ms. Jackson Lee. Mr. Chairman, I would appreciate

Mr. Hyde. The gentleman from — I'm sorry?

Ms. Jackson Lee. Your indulgence. I had asked all three of them
to comment.

Mr. Hyde. I understand that, but we have another panel. The
gentlelady's time has expired.

Mr. Conyers. Could I ask, Mr. Chairman, that someone else

Mr. Hyde. You want a unanimous consent for another 2 min-
utes?

Ms. Jackson Lee. I would greatly appreciate it, Mr. Chairman.

Mr. Hyde. Very well.

Ms. Jackson Lee. So asked.

Mr. Hyde. Without objection, an additional 2 minutes for Ms.
Jackson Lee.

Mr. Conyers. Thank you, Mr. Chairman.

Ms. Jackson Lee. Thank you, Mr. Ranking Member and Mr.
Chairman.

Ms. Long-Wagner.

Ms. Long-Wagner. I will comment very shortly. Yes, Ohio is on
the list, but again, there are many options open or missing for vic-
tims. Again, I could not be in the courtroom if this happened to me
today. I could not and I still can not to this day be in on the parole
hearing, which is very important to me. It's coming up in a year
or so. I talk with victims from other States. We discuss what do
you have, what do I have. They don't compare at all. Some people
have no victim's compensation at all. So again, uniformity I think
is the big issue.

Ms. Jackson Lee. Thank you.

Mr. HODGIN. I think the key is your own comment that we have
20 States with existing constitutional amendments, but they are all
different. We need a standardized protection throughout tne land.



46

Ms. Jackson Lee. I thank you. Mr. Chairman, I thank you. And
I thank you for presenting it to us that we need to explore this.
We need to find the best resolution and solution. You have raised
the problems. Now we need to find the solutions.

I yield back the balance of my time. Thank you for being here.

Mr. Hyde. Thank the gentlelady. The gentleman from North
Carolina, Mr. Heineman.

Mr. Heineman. Thank you, Mr. Chairman. Let me add my wel-
come to the panel. I know this has been very stressful for you, tell-
ing us of your stories. I think as an advocacy group, not only you
but those in the audience, are a credit to advocacy groups. You are
taking your initiative to the Congress of the United States and at-
tempting to amend the Constitution of the United States. That is
the epitome of effort, in my opinion.

But let me just say that I think this is the right time for this.
This committee has dealt with Megan's law as it relates to knowl-
edge and disseminating information to neighbors about sex offend-
ers. We're about to embark, and we had a hearing on the juvenile
justice system. Hopefully we'll be able to do something about that
to cure the defects. Example, in Durham, NC — I am fi*om Raleigh,
NC, and I am a 38-year law enforcement officer, 39 years. We just
had an 18-year-old criminal cut loose from a maximum sentence he
got for murdering an 83-year-old woman with a hammer. She had
hired him to do ground work in her home. Being he was only 13
at the time, he could only be sentenced until he was 18. That in
itself is a criminal. That in itself was criminal in indicting of the
system.

But to compound that is the fact that people can now not even
know what crime he committed. We as citizens can't even know
what his name is. So you have a problem here, and we all relate
to it. Certainly law enforcement has been very supportive, because
law enforcement is at the ground level of this. Next to the victim
and the victims' families, law enforcement is there to hear the cries
and see the blood. I think the further you get away from the prob-
lem, the less sensitized you are to the problem. I think mandating
victims' rights to a constitutional amendment is the way to go. I
identify with my colleague, Mr. Bono, and you certainly know that
you can count on me and most, if not all, members of this commit-
tee to further your cause.

Thank you, Mr. Chairman.

Mr. Hyde. Thank you, Mr. Heineman. The gentlelady from Cali-
fornia, either one of you. Ms. Waters.

Ms. Waters. Thank you very much, Mr. Chairman. To the wit-
nesses, let me join with my colleagues in saying to you that no one
should have to experience what you have experienced. We all ad-
mire your courage and wish that we could put an end to violence
and violations of human beings in the way that you are describing
today. I think that most people, legislators, nonlegislators, would
like to do everything that they can to make sure that there's fair-
ness, there's justice. These laws are very complicated. The ways by
which we try to access justice are very very complicated.

Let me just ask you, do you think there is any reason that a
judge would have for excluding from trial? What about violence in
the courtroom or perceived violence in this courtroom as indicated



47

by someone very angry about what has happened to them, a threat
to a defense attorney, any of that. Do you think any of that is rea-
son, would be reason for a judge to make a decision about how they
secure the courtroom?

Mrs. Roper. Certainly it would be reason for exclusion. Victims
and survivors have to conform their behavior to the court stand-
ards just as everyone does. Again, as someone who is in the court-
room supporting victims all the time, if there is any abuse of that
privilege to be in the courtroom, it's often by the families of the de-
fendant, who will disrupt the court by their emotional outbursts.
Very often the courts don't do anything about that.

Ms. Waters. I'm sure that is true, out I guess what I'm saying,
as legislators, those who craft the law, we have to do it with an
eye toward all the possibilities. I for one, am increasingly con-
cerned about restraints that we put on judges, whether it's manda-
tory sentencing or other things.

I guess my question is, when we craft a law, if for example, this
was going to move forward, should it be so absolute that the judge
would have no discretion, or because the question was raised about
whether or not in this attempt to craft this amendment, too much
discretion was being given to a judge when you give a little out
there to say that unless there was some reason by which the judge
felt that a decision should be made to exclude.

I am trying to get you to take a look at whether or not an
amendment, should it go forward, should be crafted so that there
was no discretion, or should they have the ability to have some dis-
cretion to secure that courtroom?

Mrs. Roper. No victims' rights will ever be absolute. This pro-
posal doesn't take away the court's discretion. But it does create a
parallel right in which the victim can be respected

Ms. Waters. I'm sorry. I can't see the name of the gentleman on
the end.

Mr. HoDGEN. I am Chet Hodgin.

Ms. Waters. Hodgin.

Mr. HoDGEN. Correct.

Ms. Waters. He was the one who raised the question about the
kind of a little bit of an escape clause.

Mr. Hodgin. Exactly.

Ms. Waters. I guess maybe the question would be more appro-
priately put to you. You did raise that as a concern. Are you giving
us in this amendment you said, the right to be present and yet tak-
ing it back because you offered some discretion to the judge? I
guess I ask, should there not be some discretion or should it be so
airtight that they would not be able to do it under any cir-
cumstances?

Mr. Hodgin. Ma'am, I am not an attoiney to interpret every spe-
cific instance. But I'm saying would you jeopardize the rights of 43
million victims because one might misbehave? I would think there's
a bigger danger of the defense abusing that privilege by putting us
right back where we are now and having the right to keep us out
of the courtroom.

Ms. Waters. OK, thank you very much. I was concerned also
about the HIV testing. I was pleased that my colleague was able
to describe how that has been dealt with in his State, when he in-



48

dicated that of course I don't think most people would agree that
an accused person could arbitrarily be tested. None of us would
have any problems with a convicted person. But many of us would
have problems with one who is accused prior to conviction, being
able to be tested or have other things happen prior to that decision
being made.

But when he described that they have found a way with probable
cause to be able to test, do you think that's a reasonable solution
to it?

Ms. Long-Wagner. I think that's reasonable. In my case, I had
DNA testing done. They still, I mean he was flagged. As much as
you believe in DNA testing, I don't know, but that came across. I
was raped in August. The DNA testing was in January, came back
in January. I still couldn't get it at that time.

Ms. Waters. So probable cause probably in your case would have
worked with the DNA. If we had legislation that looked at some
of these matters in a very particular way, I think even if this
passed, that wouldn't take care of that. But some of us would be
very supportive of well-crafted legislation to deal with some of the
particulars such as the HIV, where DNA would certainly be prob-
able cause which would allow for that testing to be taking place.
I think we still maybe need that.

Mr. Hyde. The gentlelady's time has expired.

Ms. Waters. But you would support that?

Ms. Long-Wagner. Yes. I would.

Ms. Waters. Thank you very much, Mr. Chairman.

Mr. Hyde. Thank you. The gentleman from Illinois, Mr. Flana-
gan?

Mr. Flanagan. Thank you, Mr. Chairman. I thank the panel for
coming today. I think it's important to observe that in the last 20
years or so, the victim has become almost baggage to the crime.
The criminal enjoys enormous celebrity because of what he has
done. Yet, how many of us can name one of the victims of John
Wayne Gacey? How many of us can came one of the victims of Jef-
frey Dahmer? How many of us can give us the first name of the
Menendez parents? There aren't many.

But in the not very recent past, we used to concentrate on the
victim and the horrors of the crime. I mean Manson's actions were
often called the LoBianco murders. We've had a change here. The
criminal enjoys a celebrity status that is abhorrent. But worse,
with the victimization of America, bad actors believe that they are
a victim of some kind or another. Consequently, we tend to miti-
gate the actions of criminals because of their own personal cir-
cumstances. "Forgive me for killing my parents because I'm an or-
phan." It's a horrible thing, and it's a terrible place to be.

The chairman has brought a very thoughtful amendment to us
today, because what it does is once again, focus on the fact that
when a criminal acts, he not only acts against the State and con-
sequently the State acts in a retributive or deterrent fashion, but
he also acts against the personality, against someone who has been
individually and personally harmed by an action. That victim
should have some rights afforded or to the immediate family of
that person as the case may be. I applaud the chairman for his ac-



49

tion today, and I applaud you for the courage of your testimony and
the importance of your testimony.

I believe as we go through this amendment, as we discuss it fur-
ther, as we refine it, as we work on it, I trust that the committee
and the public debate in general will realize the importance of a
new emphasis upon the particular personality most directly
harmed by the actions of the criminal. With that focus in mind, I
think that if nothing else, then this amendment or at least the de-
bate about this amendment, will have the courts acting in a way
that is more responsible to the victim as opposed to the abstract
law or to the greater good served by a particular interest filing an
amicus curia brief or whatever it may be.

That it is so important in the law, that when horrible acts are
committed against people those people should not sit stone silent
because the Taw provides them no avenue to participate in telling
the full impact of the action, to fully describe the crime, apart from
its legal definition and the elements involved in there. But its scope
of impact as it has applied to the families of the victims or the vic-
tim, should he survive, I think is important testimony in a trial.
I think it's important that people know that. I think it has actual
merit and value in describing the crime itself. This amendment
would go a long way toward accomplishing that.

Many States in the union have already seen fit to include this.
As is often the case, the Federal Government is a little behind the
power curve, as the States leap ahead. But our chairman has kept
us in a position of at least staying modestly current. I applaud him
for it. I thank the chairman for his time. I thank the witnesses for
their testimony. I have no questions.

Mr. Hyde. I thank the gentleman. This panel will be excused. I
want to say before you leave, it's very difficult to deal with these
subjects. The mystery of suffering and why me, Lord, is just that.
It's beyond our understanding.

The important thing is what do you do with that suffering. Do
you retreat to self pity or do you try to make something positive
out of it. You have done that. You have taken an indescribable
grief and suffering and you turned it into trying to help your fellow
human beings. You are doing that. You are really doing that. You
are helping untold, countless people avoid the suffering that you
have endured.

This is a long torturous process, but we're moving. We're on the
way. We're on horseback and we're going ahead. But I look upon
you as authentic heros. I salute you. We're all the better for having
heard you this morning. Thank you.

Ms. Long-Wagner. Thank you for your time.

Mrs. Roper. Thank you.

Mr. Hyde. Mr. Reed, Congressman Reed of Rhode Island has
asked to introduce one of our next panel. So if our next panel
would move forward.

The Chair recognizes the gentleman from Rhode Island, Mr.
Reed, for purposes of an introduction.

Mr. Reed. Thank you, Mr. Chairman. It is a great honor for me
to welcome to the Judiciary Committee our attorney general, Jef-
frey Pine. Attorney Greneral Pine, in the last several years in Rhode
Island, has established a reputation as not only a superb law en-



50

forcement official because of his great experience as a prosecutor,
but also as an individual with unimpeachable integrity and total
dedication to public service. He makes all of us in Rhode Island
very proud of his service as attorney general.

I know he will offer a great deal in terms of his testimony be-
cause of his experience and because of his sense of justice, and be-
cause of his commitment to justice, which he exemplifies in the
State of Rhode Island. So welcome, Jeffrey.

Mr. Pine. Thank you, I appreciate it. Congressman Reed.

Mr. Hyde. Next we have Ms. Elizabeth Semel. Ms. Semel is a
private criminal defense lawyer in the San Diego law firm of Semel
& Feldman. She has written and spoken extensively on topics re-
lating to the criminal justice system. She appears here today on be-
half of the National Association of Criminal Defense Lawyers.

I hope I didn't mispronounce your name.

Ms. Semel. You pronounced it correctly, thank you.

Mr. Hyde. Thank you. Finally, we have Ms. Ellen Greenlee. Ms.
Greenlee is the chief defender in the Defender Association of Phila-
delphia, which provides criminal defense attorneys for indigent per-
sons. Ms. Greenlee has extensive experience in criminal defense
work and appears here today on behalf of the National Legal Aide
and Defender Association.

We certainly appreciate your coming here today and we look for-
ward to your testimony. We ask that you confine it, if you can. We
won't be too arbitrary, to five minutes, with the understanding that
questions will be asked and that your full statements will be made
a part of the record.

Mr. Pine.

STATEMENT OF JEFFREY B. PINE, ATTORNEY GENERAL,
STATE OF RHODE ISLAND

Mr. Pine. Thank you. Good morning. Thank you again. Congress-
man Reed.

It's an honor to have the opportunity to address the members of
this committee on a subject which is of great importance. It's im-
portant to the victims oi crime, and it's important to the integrity
of our system of justice.

I want to preface my remarks by stating that the testimony I'm
about to give reflects my own views as attorney general of Rhode
Island, and not necessarily the views of all State attorneys general
or the National Association of Attorneys General.

Throughout our history as a nation, our courts have placed great
emphasis on the constitutional rights of criminal defendants. As
Rhode Island's attorney general, I am mindful, grateful, and sup-
portive of these basic rights. But as a career criminal prosecutor,
I am also mindful of the importance of ensuring that victims of
crime be treated with fairness, dignity and respect throughout the
criminal justice system, and that our system finally recognize cer-
tain basic rights possessed by all victims of crime.

I submit to you that after careful consideration and debate, an
amendment to the U.S. Constitution which would ensure that vic-
tims of crime can participate and have their voices heard in a court
of law is both appropriate, essential, and most importantly, just. In
Rhode Island, we do have a constitutional provision specifically



51

providing that the government of our State has been established
for the protection, safety, and happiness of the people. The declara-
tion of rights contained within the Rhode Island Constitution fur-
ther provides that victims have a constitutional right to be treated
with dignity, respect, and sensitivity during all phases of the crimi-
nal justice process. And the constitution provides in Rhode Island
that these rights should be included among those that would con-
stitute the paramount obligation in all legislative, judicial, and ex-
ecutive proceedings. Rhode Island laws also have a victims' bill of
rights statute, which implement in statutory form, the constitu-
tional principles referenced earlier.

We should note that in Rhode Island, the attorney general's of-
fice prosecutes all felony cases statewide, much like district attor-
neys do in most other States. As a criminal prosecutor in Rhode Is-
land since 1979, I have personally prosecuted the most heinous of
crimes and convicted the most violent of defendants. So I therefore
say it's not only my personal view, but my professional experience
that having victims participating and involved at each stage of the
judicial process helps prosecutors do a better job from arrest
through parole.

From my perspective, the bottom line is that justice must be
done in all cases so that the system yields a result that is fair to
both the defendant and the people of the State. Part of that process
should include the voice of the victim. We're not talking about spe-
cial rights for a special class. There are all too many Americans
who are victims of crime. Forty-three million of our parents, chil-
dren, brothers, sisters and neighbors are victims each year. These
are the people we see day and night in shelters and hospitals, clin-
ics and doctors offices.

We know all too well that after the crime is committee, victims
may encounter many mental, physical, and economic challenges. As
a prosecutor and elected official, it is my job to make them feel a
little less uneasy, a little less frightened, more informed, and more
understanding of what they may encounter as a victim. In our
State, our victim witness unit sees first-hand the toll of crime upon
women, children, the elderly. We prosecute all kinds of crimes from



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 7 of 24)