Victims' Rights Amendment: Background & Issues Associated With Proposals to Amend the United States Constitution

Congressional research reportApr 13, 2000

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Victims’ Rights Amendment:

Background & Issues Associated

With Proposals to Amend the

United States Constitution

Updated April 13, 2000

(name redacted)

Senior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

This is an examination of historical proposals to add a victims' rights amendment to the United

States Constitution in the context of debate over issues associated with such amendments and

in light of existing state and federal victims rights laws. It is companion to Victims' Rights

Amendment Proposals to Amend the United States Constitution in the 106th Congress, CRS

Report RL30525 (April 14, 2000).

Victims’ Rights Amendment:

Background & Issues Associated

With Proposals to Amend the

United States Constitution

Summary

Thirty-three states have added a victims’ rights amendment to their state

constitutions. Similar proposals have been made to amend the United States

Constitution, including S.J. Res. 3 and H.J. Res. 64 in this Congress.

Proponents claim an amendment is necessary to balance the rights of victims with

those afforded the accused in the criminal justice system, to make protection of

victims’ rights and remedies uniformly available, and to replace inadequate

enforcement mechanisms. Opponents claim an amendment would flood the courts

with litigation, would undermine the rights of the accused (perhaps discriminatorily),

and would jeopardize effective prosecution.

S.J.Res. 3 and H.J.Res. 64, like many of the statutory and state constitutional

provisions, focus on enduring the rights of victims to be notified of, to attend, and to

be heard at judicial proceedings. Like several of those provisions, they leave to

another day the definition of “victim” for purposes of the amendment. They do

address, however, victim participation in bail proceedings, plea bargaining, trial,

sentencing hearings among others––each of which are already subject to a wide variety

of legislative regulation.

It is as yet unclear whether S.J.Res. 3 or H.J.Res. 64 will wipe the slate clean or

simply supplement existing law and whether it will trump conflicting defendant

constitutional rights or if the need to accommodate both will in rare instances preclude

prosecution in order to avoid conflict.

Appendices include references to state and federal legislation in several of the

areas touched upon by the amendment proposals.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Need for Greater Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Obligations & the Need for Victim Participation . . . . . . . . . . . . . . . . . 10

Inadequacy of Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Need for Uniformity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Who Is a Victim? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Nature of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Victim Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Once a Victim — Always a Victim . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Offender & Locus Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Juveniles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Military Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tribal and Territorial Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Unavailability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Crimes Committed Overseas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Treatment of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Notice, Attendance & Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Decision to Investigate, Arrest or Charge . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Plea Bargains . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Other Pre-Trial Motions & Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Other Post Conviction Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Release or Escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Presence at Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Legislative Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Preemptive and Amending Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Victims’ Rights Amendment:

Background & Issues Associated

With Proposals to Amend the

United States Constitution

Introduction

Victims’ rights amendments to the United States Constitution have commanded

Congressional attention at least since the 104th Congress.1 The concept has received

Presidential,2 and Justice Department support.3 This is an examination of the

Senator Kyl introduced S.J.Res. 52 for himself and Senators Feinstein, Hatch and

Craig on April 22, 1996. Congressman Hyde introduced H.J.Res. 173 and H.J.Res. 174 on

the same day. The Senate Judiciary Committee held hearings shortly thereafter at which

Congressman Hyde testified, A Proposed Constitutional Amendment to Establish a Bill of

Rights for Crime Victims: Hearing Before the Senate Comm. on the Judiciary, 104th Cong.,

2d Sess. (1996)(Senate Hearing I). Towards the close of the session, Senator Kyl introduced

S.J.Res. 65 for himself and Senators Feinstein and Exon.

Several resolutions were introduced during the 105th, H.J.Res. 71 (Rep. Hyde et al.),

H.J.Res. 129 (Rep. Paul), S.J.Res. 6 (Sens. Kyl & Feinstein), S.J.Res. 44 (Sen.Kyl et al.);

both Houses held hearings, Proposals to Provide Rights to Victims of Crime: Hearing Before

the House Comm. on the Judiciary, 105th Cong., 1st Sess. (1997)(House Hearing); A

Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the Senate

Comm. on the Judiciary, 105th Cong., 1st Sess. (1997)(Senate Hearing II); and the Senate

Judiciary Committee reported out a resolution, S.Rept. 105-409 (1998).

In the 106th Congress, both House held hearings, A Proposed Constitutional

Amendment to Protect Crime Victims: Hearing Before the Senate Comm. on the Judiciary

(Senate Hearing III), 106th Cong., 1st Sess. (1999). The hearings held before the

Subcommittee on the Constitution of the House Judiciary Committee on March 23, 2000 have

yet to be printed, but the prepared statements of the witness at the hearing are available on the

Committee’s webpage (www.house. gov/judiciary).

The text of proposals from the 104th and 105th Congresses appears in Appendix I,

infra. A discussion of more recent legislative developments appears in Doyle, Victims Rights

Amendment: Proposals to Amend the United States Constitution in the 106th Congress,

CRS Report RL30525 (April 13, 2000), which appears in abbreviated form as Vicitms Rights

Amendment: Overview of Suggestions to Amend the Constitution, CRS Report 97-736 (April

13, 2000); see also, Morgan, S.J.RES. 3, 106TH CONGRESS, A PROPOSAL TO AMEND THE

CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS, CRS

Rept. RS20404 (Nov. 22, 1999).

32 Weekly Compilation of Presidential Documents 1134 (June 25, 1996).

House Hearing at 22-39; Senate Hearing II at 40-54.

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background and some of the legal issues associated with these and other proposed

victims’ rights amendments to the United States Constitution.

Background

The victims’ rights amendments are the culmination of efforts on several fronts.

They have their origins in the confluence of drives by several groups each of whom

began with a more narrowly defined focus including:

• those seeking to reform

- drunk driving laws

- domestic violence laws

- laws covering the treatment afforded rape victims, and

- child abuse and elderly abuse laws;4

• those reacting to the Supreme Court’s extensive reidentification of the

constitutional guarantees and protection afforded the accused in both the state

and federal criminal justice systems;5

• those dedicated to greater crime prevention, law enforcement, and witness

protection;6 and

• academics.7

Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of

Issues and Problems, 11 PEPPERDINE LAW REVIEW 117, 118-20 (1984)(“Much of the initial

impetus for this [victim’s rights] movement stems from concern about rape victims generated

by feminists and women’s organizations in the 1960's. The problems of other types of victims

– those plagued by family violence, the elderly victim, the victim of drunk driving –

subsequently received similar attention”); Aynes, Constitutional Considerations: Government

Responsibility and the Right Not to Be a Victim, 11 PEPPERDINE LAW REVIEW 63, 64-5

(1984); see generally, Senate Hearing at 38-43 (prepared statement of Robert E. Preston, CoChairman of the National Victims’ Constitutional Amendment Network).

Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s

Victims’ Rights Amendment, 1994 UTAH LAW REVIEW 1375, 1381 (1994) (“In the 1960s,

defendants’ rights developed considerably as the Warren Court extensively interpreted federal

constitutional protection for criminal defendants. When the United States Supreme Court

slowed its expansion of defendants’ protection, some state courts began to interpret state

constitutions broadly to protect defendants’ rights. . . . This expanded protection of

defendants’ rights – with no apparent consideration of victims’ interests – came under

increasing criticism”).

Abrahamson, Redefining Roles: The Victims’ Rights Movement, 1985 UTAH LAW

REVIEW 517, 528; President’s Commission on Law Enforcement and the Administration of

Justice, TASK FORCE ON ASSESSMENT 80 (1967); McDonald, Toward’s a Bicentennial

Revolution in Criminal Justice: The Return of the Victim, 13 AMERICAN CRIMINAL LAW

REVIEW 649, 669-73 (1976).

The Victim’s Veto: A Way to Increase Victim Impact on Criminal Case Dispositions,

77 CALIFORNIA LAW REVIEW 417, 423 (1989)(“The origins of the Victims’ Rights Movement

can be traced to the emergence of the science of victimology in the late 1940s and 1950s. By

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State and federal legislative bodies have not been unresponsive to their concerns.

Congress and each of the states have passed victims’ rights amendments to their state

constitutions or general victims’ bill of rights statutes or both.8 Virtually every

jurisdiction has enlarged victim restitution provisions9 and established victim

compensation and assistance programs.10

Congress has enacted the Victim’s Rights and Restitution Act of 1990, which

includes the federal statutory victims’ rights act,11 the Privacy Protection for Rape

Victims Act of 1978,12 the Victim and Witness Protection Act of 1982,13 the Victims

1957, proposals for victim compensation were engendering international public debate. New

Zealand enacted the first victim compensation program in 1963, and two years later California

became the first American state to provide compensation for crime victims”).

See Appendices II and III for a sampling of and citations to state constitutional and

statutory provisions.

See Appendix IV for citations to the federal and state restitution provisions.

Restitution is the only victim specific provision found in recently adopted amendment to the

Montana Constitution, MONT.CONST. Art.2, §28(1) (“Laws for the punishment of crime shall

be founded on the principles of prevention, reformation, public safety, and restitution for

victims”).

Victim compensation and victim assistance programs are eligible for federal

assistance, 42 U.S.C. 10601 to 10607; see Appendix V for a sample state statute and the

citations to pertinent state statutes.

42 U.S.C. 10606 Rights of Crime Victims

(a) Best efforts to accord rights

Officers and employees of the Department of Justice and other departments and agencies

of the United States engaged in the detection, investigation, or prosecution of crime shall make

their best efforts to see that victims of crime are accorded the rights described in subsection

(b) of this section.

(b) Rights of crime victims

A crime victim has the following rights:

(1) The right to be treated with fairness and with respect for the victim’s dignity

and privacy.

(2) The right to be reasonably protected from the accused offender.

(3) The right to be notified of court proceedings.

(4) The right to be present at all public court proceedings related to the offense,

unless the court determines that testimony by the victim would be materially affected if

the victim heard other testimony at trial.

(5) The right to confer with [the] attorney for the Government in the case.

(6) The right to restitution.

(7) The right to information about the conviction, sentencing, imprisonment, and

release of the offender.

This section does not create a cause of action or defense in favor of any person arising

out of the failure to accord to a victim the rights enumerated in subsection (b) of this section.

92 Stat. 2046, F.R.Evid. 412.

96 Stat. 1248 (1982). The Act (1) amended the Federal Rules of Criminal Procedure

to include victim impact and restitution information as part of federal presentence reports,

F.R.Crim.P. 32(c); (2) recast the witness protection and retaliation sections of the federal

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of Crime Act of 1984,14 the Mandatory Victims Restitution Act of 1996, the Justice

for Victims of Terrorism Act of 1996,15 the Victims Rights Clarification Act,16 the

Torture Victims Relief Act of 1998,17 and dozens of other more anonymous

provisions.18

Victims’ rights legislation has occasionally come under constitutional attack. For

example, the Supreme Court found contrary to the First Amendment the so-called

“Son of Sam” laws enacted so that victims might receive the proceeds of a serial

killer’s literary exploitation of his crimes.19 Although it later overturned the decision,20

the Court initially held that victim impact statements during the sentencing stage of a

death penalty case violated the Eight Amendment.21 At first, some of the lower federal

courts have been troubled by ex post facto problems raised by the federal restitution

obstruction of justice law; (3) established explicit restitution provisions applicable in air

piracy cases; (4) directed the Attorney General to establish guidelines for notification and fair

treatment of victims and witnesses in the federal criminal justice system; and (5) enacted a

federal “Son of Sam” law.

Enacted as chapter XIV of the Comprehensive Crime Control Act of 1984, 98 Stat.

2170, the Act established the federal victim compensation and assistance programs.

Enacted as subtitles IIA and IIC of the Antiterrorism and Effective Death Penalty Act

of 1996, 110 Stat. 1227, 1243.

111 Stat. 12 (1997).

112 Stat. 3016 (1998).

For example, Congress established a death benefits program for police officers killed

in the line of duty in 1968, 82 Stat. 98; the Omnibus Crime Control and Safe Streets Act of

1968 created a cause of action for the victims of illegal wiretapping and electronic

eavesdropping, 18 U.S.C. 2520; the Organized Crime Control Act of 1970 included a treble

damage provision for the victims of RICO violations (racketeer influenced and corrupt

organizations), 18 U.S.C. 1964, and also established the federal witness protection program,

84 Stat. 933; the Comprehensive Crime Control Act of 1984 authorized the preventive

detention of suspects who pose a danger to the safety of victims, witnesses or the community,

18 U.S.C. 3142, and includes the Missing Children’s Assistance Act, 98 Stat. 2125; the

Violent Crime Control and Law Enforcement Act of 1994 created a cause of action for

gender-motivated violence, amended the federal rules of criminal procedure establishing a

victim’s right of allocution at sentencing, and included the Morgan P. Hardiman Task Force

for Missing and Exploited Children and Jacob Wetterling Crimes Against Children and

Sexually Violent Offender Registration Acts, 108 Stat. 1941, 2077, 2038, 2043.

Simon & Schuster, Inc. v. New York, 502 U.S. 105 (1991).

Payne v. Tennessee, 501 U.S. 808 (1991).

Booth v. Maryland, 482 U.S. 496 (1987); South Carolina v. Gathers, 490 U.S. 805

(1989).

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provisions22 and by community notification provisions of various state “Megan’s

Laws.”23

The history of a victims’ rights amendment to the United States Constitution

begins with the 1982 President’s Task Force on Victims of Crime recommendation

which would have simply appended the following sentence to the Sixth Amendment,

“Likewise, the victim, in every criminal prosecution shall have the right to be present

and to be heard at all critical stages of judicial proceedings.”24 Proponents

subsequently floated free-standing variants.25 Questions over the impact of the

United States v. Edwards, 162 F.3d 87, 89-92 (3d Cir. 1998)(retroactive application

of the Mandatory Victims Restitution Act violates the ex post facto clause), citing in accord,

United States v. Siegel, 153 F.3d 1256, 1259-261 (11th Cir. 1998); United States v. Bapack,

129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241

(8th Cir. 1997); United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997); and United

States v. Thompson, 113 F.3d 13, 14 n.1 (2d Cir. 1997); contra, United States v. Bach, 172

F.3d 520, 522-23 (7th Cir. 1999) and United States v. Nichols, 169 F.3d 1255, 1279 (10th

Cir. 1999).

Often with an eye to Kansas v. Hendricks, 521 U.S. 346 (1997)(uphold the civil

commitment procedures in the Kansas sexually violent predator law), the more recent

appellate decisions have generally rejected early district court decisions raising ex post facto

and other constitutional concerns in the registration area, compare, Rowe v. Burton, 884

F.Supp. 1372 (D.Alaska 1994); Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y. 1996); E.B. v.

Portiz, 914 F.Supp. 85 (D.N.J. 1996); Artway v. Attorney General, 876 F.Supp 666 (D.N.J.

1995), with, Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999); Roe v. Office of Adult

Probation, 125 F.3d 47 (2d Cir. 1997); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997);

but see, Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997)(due process precludes officials,

without a hearing, from classifying as a sexual offender with attending adverse consequences

a prisoner against whom sex offense charges had been dropped).

The reaction in state courts has been much the same. Registration and notification

statutes have generally survived constitutional attacks, but have occasionally encountered due

process or similar constitutional obstacles, e.g., Commonwealth v. Williams, 557 Pa. 437,

733 A.2d 593 (1999)(state procedure for classifying an individual a sexually violent predator

violated due process); Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007

(1997)(same); State v. Scott, 24 Kan.App.2d 480, 947 P.2d 466 (1997)(classification of the

defendant under the state sexual offender registration law constituted grossly disproportionate

punishment in violation of the state constitutional proscription against cruel and unusual

punishments).

President’s Task Force on Victims of Crime, Final Report 114 (1982). Had the

amendment been added to the Constitution, the Sixth Amendment of the Bill of Rights would

have read as follows: “In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence. Likewise, the victim, in every criminal prosecution

shall have the right to be present and to be heard at all critical stages of judicial proceedings.”

In 1985, the National Organization of Victim Assistance Task Force offered this

language as a proposed amendment to the United States Constitution, “Victims of crime are

entitled to certain basic rights, including but not limited to the right to be informed, to be

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amendment proposals upon defendants’ rights threatened to splinter the movement and

the effort was redirected towards the states.26 More than half of the states have now

amended their state constitutions to include victims’ rights amendments.27

Issues

Proposals to add a victims’ rights amendment to the United States Constitution

raise two basic issues: why and what — why should the Constitution be amended and

what should be included in any such amendment.

Purpose

Why a victims’ rights amendment to the United States Constitution? Proponents

have historically offered several reasons:

present, and to be heard at all critical stages of federal and state criminal justice processes to

the extent that these rights do not interfere with existing constitutional rights,” reprinted in The

Rights of Crime Victims in the Criminal Justice System: Is Justice Blind to the Victims of

Crime?, 16 NEW ENGLAND JOURNAL ON CRIMINAL & CIVIL CONFINEMENT 241, 266 (1990).

Two years later the Victim’s Constitutional Amendment Network suggested another version,

“The victim of crime or his or her representative shall have the right to be informed of, to be

present at, and to be heard at all criminal justice proceedings at which the defendant has such

rights, subject to the same rules of evidence which govern the defendants rights,” reprinted ID.

at 267.

Karmen, Who’s Against Victims’ Rights? The Nature of the Opposition to ProVictim Initiatives in Criminal Justice, 8 ST.JOHN’S JOURNAL OF LEGAL COMMENTARY 157,

170 (1992) (“When the victims’ movement launched a campaign in the 1980's to reform the

Sixth Amendment to the Constitution, some were alarmed that basic civil liberties enshrined

in the Bill of Rights could come under attack. Part of the movement sought to add language

to the Sixth Amendment to the effect that victims were entitled to certain basic rights. Among

these rights were the right to be informed, and the right to be present and heard at all critical

stages of the criminal justice process. These rights were to be tailored so as to not conflict

with existing constitutional guarantees extended to accused persons. However, others in the

movement formulated the proposed constitutional amendment in a more contentious way.

They sought to match defendants’ rights with victims rights. Currently [in 1992] the drive for

an amendment to the United States Constitution is being redirected in favor of efforts to codify

victims rights into state constitutions. Some of the sharpest battle have broken out over

proposals to strengthen the hand of the state in the name of the victim. Some proposals

include legislation to make it easier for the police to effect an arrest, for a defendant to be kept

in jail rather than released on bail, to change the rules of evidence or limit the crossexamination of complainants, or lastly, for the government to keep convicts behind bars by

shutting off avenues of appeal and review”).

Although the state constitutional amendments tend to be individualistic, they share

common themes. One of the first, the California constitutional amendment, for example,

contains specific provisions for safe schools, exclusionary rule limitations, bail restrictions,

and recidivist sentencing, features rarely replicated in other states On the other hand, it also

calls for victim restitution, a component common to those of several states, CAL.CONST.

Art.1, §28.

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• the criminal justice system is badly tilted in favor of criminal defendants and

against victims’ interests and a more appropriate balance should be restored;

• the shabby treatment afforded victims has chilled their participation in the

criminal justice system to the detriment of all;

• society has an obligation to compensate victims;

• existing statutory and state constitutional provisions are wildly disparate in their

coverage, resulting in uneven treatment and harmful confusion throughout the

criminal justice system; and

• existing state and federal law is inadequate and likely to remain inadequate.28

The Need for Greater Balance

The due process clauses and other defendants’ rights components of the

Constitution supplied the foundation for the defendant-focused jurisprudence of the

‘50's and ‘60's. It has also served as one of the catalysts for the early victims’ rights

movement. A call for greater constitutional protection of victims’ rights seems a

predictable feature of the belief that the criminal justice system must involve a greater

balance between the rights of victim and those of the defendant.29

These contentions can be variously parsed and arranged, see e.g., Hudson, The

Crime Victim and the Criminal Justice System: Time for a Change, 11 PEPPERDINE LAW

REVIEW 23, 29-33 (1984)(“1. There are serious injustices in the present system, because it

ignores victim interests and often treats victims unfairly. . . .2. The present system harbors the

inequity of elaborate procedural rights for the accused, but denies the victim standing in the

criminal justice process and grants him very few procedural rights. . . .3. Enhancement of the

rights and privileges of crime victims will encourage victim cooperation within the criminal

justice system. . . .4. If legislators are to find more funds for law enforcement, corrections, and

other criminal justice system programs, it is politically important for the public to feel that the

system is working for them, not just for the rights of the accused, convicted, or institutional

interests. . . .5. What can be collectively termed humanitarian and social welfare rationales

are often cited for the establishment of state-funded victim compensation, victim/witness

assistance, and counseling programs. Such rationales generally describe the government

service as a benefit bestowed as a matter of legislative or executive grace, rather than a right

or entitlement. . . .6. . . . [T]he government’s monopoly on the use of force carries with it the

duty to protect its citizens from attack and theft. . . .7. Victim rights reforms are largely nonpunitive, non-repressive, constitutional, politically popular, and fiscally inexpensive. . . .8.

The `we-have-tried-everything-else’ argument. . . .9. Some victim reforms have correctional

value in themselves and are more cost-effective than the alternative of longer incarceration.

. . .10. The time has come after twenty years of judicial decisions and statutory enactments

fully implementing the constitutional rights of criminal defendants for the theoretical remedies

of crime victims to receive practical implementation.”).

145 Cong.Rec. S707 (daily ed. Jan. 19, 1999)(remarks of Sen. Kyl) (“statutory and

State constitutional provisions are always subservient to the Federal Constitution; so, in cases

of conflict, the defendants’ rights – which are already in the U.S. Constitution — will always

prevail. Our amendment will correct this imbalance”); 145 Cong.Rec. S709 (daily ed. Jan.

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The balance argument is hardly new. Close to three quarters of a century ago, the

Supreme Court observed that “[t]he law, as we have seen, is sedulous in maintaining

for a defendant charged with crime whatever forms of procedure are of the essence of

an opportunity to defend. . . . But justice, though due to the accused, is due to the

accuser also. The concept of fairness must not be strained till it is narrowed to a

filament. We are to keep the balance true,” Snyder v. Massachusetts, 291 U.S. 97, 122

(1934).

Critics might suggest that victims already enjoy equal constitutional rights with

the accused. The victim who repels an unlawful assault with excessive force may find

himself criminally charged. In that case, he is entitled to exactly the same

constitutional rights as his attacker.30

Moreover, many of the constitutional rights afforded the accused benefit the

victim as well. They are designed to ensure that the guilty are convicted and that the

innocent are not. The accused benefits when the innocent are not convicted; the victim

benefits when the guilty are.31

19, 1999)(remarks of Sen. Feinstein (“nowhere in the text of the U.S.Constitution does there

appear any guarantee of rights for crime victims. To rectify this disparity, Senator Kyl and

I are putting forth is Crime Victims’ Rights Amendment”).

The Victims’ Bill of Rights: Are Victims All Dressed Up With No Place to Go? 8 ST.

JOHN’S JOURNAL OF LEGAL COMMENTARY 251, 276 (1992)(“It is necessary to provide

constitutional protection to the crime victim in order to correct the imbalance in the criminal

justice system. . . . The defendant is afforded many rights in the Constitution, but the victim

is not. . . . [F]ederal legislation, while a step in the right direction, does not transcend state

legislation and fails to adequately meet the need for enforceable victims rights. A

constitutional victims’ rights provision will equalize the grossly unbalanced treatment of the

victims and the defendants in the criminal justice system”). Young, A Constitutional

Amendment for Victims of Crime: A Victim’s Perspective, 34 WAYNE LAW REVIEW 51, 6465 (1987)(“From a victim’s perspective, mere privileges are not sufficient. Because victims

endure extensive pain and suffering in the wake of victimization, victims want and deserve the

criminal justice system to afford them equal access, equal treatment, and equal justice as

provided for the accused. . . . [A]s a result of both the lack of remedies and the vulnerability

of existing legislation to constitutional challenges, the victims contend that it is necessary to

pass an amendment that ensures them a place `equal’ to the accused’s in the criminal justice

system”).

Eikenberry, Victims of Crime/Victims of Justice, 34 WAYNE LAW REVIEW 29, 48

(1987)(“The . . . victims’ rights amendment is not merely one group’s view of social policy.

It is instead a way of balancing the grossly unbalanced criminal justice system; it is a way of

returning victims to their rightful position in the criminal justice system; and it is consistent

with the purpose and effect of other amendments to the Constitution”).

Cf., Carter, When Victims Happen to Be Black, 97 YALE LAW JOURNAL 420

(1988)(discussing the case of Bernhart Goetz charged with attempted murder and assault and

ultimately convicted for possession of an unlicensed handgun following a subway

confrontation with muggers).

Logic might suggest that the victim also suffers when the guilty escape unpunished

because an innocent individual has been accused instead, but this view is rarely heard.

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More often, however, the response has been that the balance argument

“represents a fundamental misunderstanding of the nature and purpose of individual

constitutional rights,”32 and of the nature and purpose of a criminal prosecution.33 The

law provides a field which it tries to keep level and upon which a victim may seek

vindication of his or her rights at the expense of an accused. In most instances, the

victim of a crime enjoys the right of a civil cause of action against the perpetrator for

damages, injunctions and other forms of equitable relief, as well as punitive damages

in some cases. It is here, not on the criminal side, opponents contend, that the victim’s

interests are relevant.34

In the same vein, one of the motives critics attribute to victims’ rights advocates

is a rejection of the basic premise under the American criminal justice system. They

suggest victims believe the criminal justice process constitutes an unjustifiable waste

of time in a procedure that should be reduced to identifying and then punishing

suspects; they consider “suspect”, “accused”, “defendant”, and “guilty” synonymous

terms. No process is too quick; no punishment sufficiently severe; acquittals are an

injustice.35 Critics say that no investment of rights short of allowing the victim to

Dolliver, Victims’ Rights Constitutional Amendment: A Bad Idea Whose Time

Should Not Come, 34 WAYNE LAW REVIEW 87, 91 (1987)(“The Bill of Rights was designed

to protect personal liberties from governmental infringement, not to protect private individuals

from each other. No personal liberty of a victim is infringed upon by the government at any

time during the criminal prosecution. The victim has not been arrested, is not being tried, is

not in danger of being fined or imprisoned — as is the defendant — and is not being deprived

of any alternative legal remedies against a defendant. Any rights the victim seeks to secure

are not of a constitutional character; thus, a victims’ rights amendment is an inappropriate

means of securing victims’ rights”).

Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARVARD JOURNAL

OF LAW AND P UBLIC P OLICY 357, 381 (1986)(“The prosecution of one charged with a

criminal offense is an adversary proceeding. The prosecuting attorney . . . represents the

State. It is not only his right, but his duty, to present the State’s case and to argue for and to

seek to obtain the State’s objective in the proceeding. That objective is not conviction of the

defendant regardless of guilt, nor punishment disproportionate to the offense or contrary to

the State’s policy. It is the conviction of the guilty, the acquittal of the innocent and

punishment of the guilty, appropriate to the circumstances, in the interest of the future

protection of society. In the discharge of his duties the prosecuting attorney is to required to

be, and should not be, neutral. He is not the judge but the advocate of the State’s interest in

the matter”)(quoting, State v. Westbrook, 279 N.C. 18, 36-7, 181 S.E.2d 572, 583 (1972)).

On the other hand, time, costs and the prospect of a judgment-proof defendant may

render civil justice less than fully satisfactory in many instances.

E.g., House Hearing, 86-7 (prepared statement of Elisabeth A. Semel, on Behalf of

the National Association of Criminal Defense Lawyers)(“[T]he father . . . whose daughter’s

killing provided the necessary political impetus for the rapid-fire enactment of `three strikes’

has become an omnipresent commentator on a gamut of criminal justice issues. The jury in

the trial of Richard Allen Davis, the man charged with [the little girl’s] murder, had the initial

task of deciding whether Davis was actually guilty of the offense, and, if so, whether the

prosecution had proved four special circumstances, each of which, if found true, could lead

to a death sentence for Davis. The jury took but a few days to discharge its sworn

responsibility to consider the evidence with due deliberation, but that was not fast enough for

[the victim’s father]. Soon after they had retired to deliberate, [the father] went on national

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personally inflict punishment upon those he or she considers guilty is ever likely to

balance the scales for these victims — if in fact such victims exist.

Finally, the debate over an amendment to the United States Constitution

introduces an issue that need not have previously been considered. No state victims’

rights constitutional amendment or state or federal statute may intrude upon the rights

the United States Constitution affords the criminally accused. No federal statute or

state constitutional provision can roll back the demands of due process or any of the

other rights granted by the Bill of Rights. An amendment to the United States

Constitution can. A federal victims’ rights amendment, if so intended, by definition

amends any prior inconsistent provision in the Constitution.36 Unless the proposed

rights are made sub-ordinate to defendant rights in case of conflict, either defendant

rights must be subordinate or a prosecution in which they are in conflict must be

avoided, abandoned, or repudiated.37

Obligations & the Need for Victim Participation

There seems to be little dispute that shabby treatment of victims makes them less

inclined to report crimes, to step forward as witnesses, or to otherwise participate in

television to chastise these twelve citizens for `failing’ to instantly bring in the verdict he

demanded”).

Abrahamson, Redefining Roles: The Victims’ Rights Movement, 1985 UTAH LAW

REVIEW 517 (“Jim Brandt reported that his store had been held up three times in the last four

years. Brandt was quoted as saying, `The last time, the police caught the guy but the court

let him go’”).

See e.g., Lamborn, Victim Participation in the Criminal Justice Process: The

Proposals for a Constitutional Amendment, 34 WAYNE LAW REVIEW 125, 182, 185

(1987)(“[A] right established by the United States Constitution is the supreme law of the land,

paramount to conflicting federal and state statutes, judicial opinions, and administrative

regulations. Thus, the victim’s constitutional right under the proposal to be present and to be

heard would supersede the defendant’s common law or statute right to the exclusion of

witnesses. Of course, if two provisions of the Constitution conflict with each other resolution

of the issue is not so simple. For example, the defendant’s right to the exclusion of witnesses

may have a basis in the confrontation clause of the sixth amendment and the due process

clauses of the fifth and the fourteenth amendments, which would conflict with the victim’s

right to be present under the proposed amendment. . . . In such cases of conflict, generally the

newer provision prevails over the older, and the specific provision prevails over the general.

Thus, the victim’s rights to be present and to be heard — being both new and specific —

would supersede the defendant’s rights to the exclusion of . . . witnesses”).

In the Lamborn example just cited where the victim’s right to be present conflicts

with the defendant’s constitutional right to have witnesses sequestered (barred from hearing

the testimony of other witnesses), if the victim’s right is subordinate, the victim/witness may

be sequestered; if the defendant’s right is subordinate, the victim/witness may be allowed to

be present throughout the trial; if neither is subordinate and the conflict cannot be avoided

(e.g., by having the victim not testify or by calling the victim as the first witness), there can

be no trial.

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the process.38 But here and with respect to the third justification of an amendment —

society’s obligation to compensate for its failure to protect its citizenry — the quarrel

is not as much with the identification of the problem as with the selection of a solution.

Inadequacy of Alternatives

The adequacy of alternatives, now and in the future, lies at the heart of the

dispute. Proponents find present law wanting.39 Opponents find present law workable

The Victim’s Veto: A Way to Increase Victim Impact on Criminal Case

Dispositions, 77 CALIFORNIA LAW REVIEW 417 (1989)(“Despite the importance of victim

participation to the operation of the criminal justice system, commentators have observed that

crime victims are largely excluded from the system and that those victims who do participate

suffer a `second victimization’ at the hands of that system. The victims themselves have

become increasingly dissatisfied with a process that denies them a prominent role in bringing

an accused offender to justice. They show their dissatisfaction by removing themselves from

the system: They fail to report crimes; they fail to appear in court; and at times they resort to

vigilantism. Victim withdrawal from the criminal justice process creates a public impression

that the system is inefficient and unresponsive, and thus exponentially increases the likelihood

that more victims will be deterred from reporting crimes and testifying in court”).

Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 MISSISSIPPI LAW

JOURNAL 515, 518 (1982)(“A key assumption underlying the victims’ movement is that the

failure of victims to cooperate with the criminal justice system has reached epidemic

proportions. Recent statistical studies of victimization confirm what we have known for some

time. Victims often do not report to the police the crimes that have been committed against

them. And the more crime we have, the larger this `dark figure’ of unreported crime becomes.

Even when they report crimes, a remarkably large proportion of victims later refuse to testify,

which leads prosecutors to dismiss or reduce charges. conversely, victims often find police

unwilling to investigate and prosecutors unwilling to charge. In short, each — authorities and

victims — finds the other uncooperative, resulting in a reciprocal cycle of decline. Confidence

in justice is eroded, enforcement efforts are impeded, and conviction rates, when measured

against crimes actually committed, tumble downward”).

Young, A Constitutional Amendment for Victims of Crime: The Victims’

Perspective, 34 WAYNE LAW REVIEW 51, 52 (1987)(“Since. . . 1975, Congress and the

various state legislatures have enacted some 1500 statutes and programs designed to address

the full range of concerns raised by victims. . . . However, the current reports indicate that in

state after state the duty to give victims’ interests decent consideration is a rhetorical facade

behind which it is bureaucratic business as usual”).

The Victims’ Bill of Rights: Are Victims All Dressed Up With No Place to Go? 8

ST.JOHN’S JOURNAL OF LEGAL COMMENTARY 251, 273-74 (1992)(“A constitutional

amendment appears to be desirable. It would be a more forceful way of ensuring that victims,

in fact, do have rights, since it would be part of our Constitution. It would present a minimum

standard to the states, and would guarantee effects victims at least that degree of protection.

Victims would be shielded from the negative effects of legislative whim, and could benefit if

a state legislature set out to provide victim with greater rights than the Constitution would

require. A victims’ rights amendment, if drafted properly, would also create a liberty interest

in victims’ rights. As a result, victims would be able to enforce those rights against, and

obtain relief from, state prosecutors and judges pursuant to Section 1983 of the Civil Rights

Act. Victims might also be able to similarly redress these wrongs against federal officials.

By providing such a remedy to aggrieved victims, a victims’ rights amendment would serve

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and fear an amendment would make matters worse.40 The specifics of the proposal

to close a significant gap which currently plagues the area of victims’ rights”).

Eikenberry, Victims of Crime/Victims of Justice, 34 WAYNE LAW REVIEW 29, 48-49

(“Even though some statutes . . . grant victims substantial rights, the rights are still

subordinate to those of the defendant. . . . [T]he rights of victims should be protected from the

shifts in political priorities. From year to year different issues emerge that are popular with

elected officials and the public. But elected officials change, new constituencies arise, and

new issues replace the old. Crime victims should not have to hope for a favorable political

climate for their rights to be recognized. This is the very reason that the framers of the

Constitution thought it proper to include in [the very first amendments to the Constitution,]

the Bill of Rights, protection for those accused of crimes. As the Supreme Court stated: `The

very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach of majorities and officials, and to

establish them as legal principles to be applied by the courts.’ Board of Educ. v. Barnette, 319

U.S. 624, 638 (1943)”).

Kyl & Feinstein, Victims’ Rights: Do We Need a Constitutional Amendment to Ensure

Fair Treatment — Yes: Victims Deserve Justice No Less Than Defendants, 82 AMERICAN

BAR ASSOCIATION JOURNAL 82 (Oct. 1996)(“The federal government has well-written

statutes intended to establish victims’ rights; [more than half of the] states have amended their

constitutions to protect victims. But, as case after case, shows, a state law or amendment —

or even a federal statute — does not equal the weight of the Bill of Rights”).

Senate Hearing II at 12 (prepared statement of Prof. Laurence H.Tribe, Harvard

University Law School)(“The problem, rather, is that such [victims right] rules [apart from

an amendment to the United States Constitution] 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”).

House Hearing at 143-45 (prepared statement of Ellen Greenless, President National

Legal Aid and Defender Association)(“Prosecutors’ offices will be tied in knots. . . . the

judicial system will be particularly crippled. . . . Indigent defense systems will also find

workloads massively increased by the reductions in pleas and the increase in trials. . . . By

consuming the time and resources of society’s crime-fighting institutions, including

prosecutors, police, courts and probation officers, the public is made less safe. . . . Victims

themselves may wonder whether all these costs bring much benefit to them. In fact, the

changes will damage the best assistance program victims currently have: the compensation

funds around the country that provide quick monetary help, counseling and support services

to victims in the traumatic aftermath of a violent crime. . . . In fact, the only clear winners .

. . would be the trial lawyers”).

Senate Hearing II at 99 (prepared statement of Robert J. Humphreys, President of the

Virginia Association of Commonwealth’s Attorneys)(“So I would respectfully suggest that

the adoption of this amendment would result int he Nation’s prosecutors facing the Hobson’s

choice of either violating the constitutional rights of victims and exposing them to potential

prosecution under 18 U.S.C. 242 [relating to the deprivation of civil rights under color law],

or the more likely event would be that they would divert staff and resources from the

prosecution of cases to the provision of these mandated victim services”).

Senate Hearing II at 162-63 (prepared statement of the National Clearinghouse for the

Defense of Battered Women)(“The proposed amendment’s real benefit to crime victims is

speculative at best and, in fact, may end up hindering, rather than helping, victims. . . .By

forcing restitution to a constitutional level, restitution payments will be given priority over the

payment of federal fines. This will certainly end up seriously undercutting payments to the

Victims of Crime Act Fund (VOCA) in cases where defendants lack the resources to fully

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provide the specifics for much of the debate. The more robust the amendment, the

more civil libertarians and the states are likely to object; the more restrained the

amendment, the more victims’ rights advocates are likely to question its sufficiency.

The Need for Uniformity

Victims’ rights are different in every jurisdiction in the United States. Some find

this diversity a reason for an amendment to the United States Constitution.41 There is

the implication that the presence of many individual standards contributes to the failure

of existing provisions. Diversity breeds uncertainty that leads to a failure to comply

and a failure to claim. More recently, advocates have spoken of the need for a “floor”

or baseline; sometimes with and sometimes without an indication that diversity above

the line is to be encouraged.42

Critics argue that this would essentially federalize the state criminal justice

process, denying the people of a particular state and their elected officials the right to

decide the range of victim rights and services that should be a part of their state

criminal justice systems.43

Uniformity obviously requires compliance to a single standard imposed by the

amendment to the United States Constitution. Some victims’ advocates may join the

satisfy both. VOCA currently provides funds to more than 3,000 local victims’ services

organizations, including many domestic violence and sexual assault programs. If the

Amendment passes there will ironically be less money available for victims’ services”).

House Hearing at 15 (prepared statement of Senator Feinstein)(“Some people

question why this needs to be a constitutional amendment. The reasons for this are:. . . to

establish consistent, uniform rights for the millions of crime victims in our country”).

Senate Hearing II at 64 (prepared statement of Attorney General Reno) (“significant

state efforts simply are not sufficiently consistent, comprehensive, or authoritative to

safeguard victims’ rights. Rather than form a minimum baseline of protections, the state

provisions have produced a hodgepodge of rights that vary from jurisdiction to jurisdiction.

. . . . Rights that are guaranteed by the federal Constitution receive greater recognition and

respect. If a victims’ rights amendment is adopted, a permanent, uniform baseline of rights

for crime victims will be in force in each and every state”); House Hearing at 61 (prepared

statement of Jeffrey B. Pine, Attorney General of Rhode Island)(“A carefully designed

amendment would complement successful amendments and statutes already in place in many

states and which are under consideration in many others”).

S.Rept. 105-409 at 48 (minority views of Sen. Thompson)(“There is no general

Federal police power. Accordingly, it seems incongruous to have a Federal constitutional

amendment addressing victims’ rights when the Constitution itself left only a relatively small

role for the Federal Government to address the issue of crime. It is all the more troubling that

this proposal co-opts the States by directing them how to run their criminal justice systems”).

On the other hand, some consider a constitutional amendment that requires the approval of

three quarters of the states less offensive to the principles of federalism than a federal statute

of equal breath, cf., Senate Hearing II at 87 (testimony of James E. Doyle, Wisconsin

Attorney General).

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ranks of critics if the price of a constitutionally enthroned victims’ rights amendment

is the loss of more generous treatment under the law of a particular state.

Who Is a Victim?

What would a proposed victims’ right amendment to the United States

Constitution do? A large part of the answer depends upon how “victims” are defined

for purposes of the amendment. The breadth of a proposal may vary according to the

class of individuals and entities whose rights it seeks to protect. In common parlance,

a victim of crime is one who is adversely affected by crime. The concept is fairly

broad. It encompasses the appealing and not so appealing victim — the rape victim

and the “ripped off” drug dealer; the casualties of gang warfare, both participant and

bystander; the middleman in a pyramid scheme,44 the defendant who is acquitted or

whose conviction is overturned,45 and the elderly person defrauded the savings of a

lifetime.

The term often contemplates parents and other members of the family of a

deceased, incapacitated, or juvenile victim. In the case of property crimes, it may

include anyone with an interest in the property, e.g, an owner, a tenant, a mortgage

holder, insurer. In a commercial setting, it embodies those who are economically

disadvantaged by a crime even if they suffered no direct injury to an identifiable

property interest. In the case of civil rights violations, hate crimes, and terrorism, any

member of the group targeted for intimidation may correctly be counted a victim. In

the case of public solicitation for prostitution, public drug trafficking, and other crimes

with elements of environmental nuisance, anyone who lives in, does business in, or has

occasion to visit any affected geographical area might be listed among the victims.46

The various “Megan’s Law” efforts seem to suggest that at least in the public mind,

the concept of victim also may encompass potential victims under some

circumstances.47 Finally, the concept of criminal law is based upon the premise that a

A scheme involving an enterprise whose only income generating activity is the

solicitation of successive layers of investors, each layer paid out of the investments of their

successors.

E.g., Dr. Sam Shepard’s conviction for the murder of his wife was only overturned

after he had served nine years in prison, Shepard v. Maxwell, 384 U.S. 333 (1966); DNA and

other evidence, corroborating his innocence, was only fully developed after his death,

Pittsburgh Post-Gazette, A8 (March 30, 1997).

House Hearing at 90 (prepared statement of Elisabeth A. Semel on behalf of the

National Association of Criminal Defense Lawyers)(“Just last week, three men were released

from Illinois’ death row, having spent 18 years in prison for a double murder they did not

commit. As one of the men, Kenneth Adams, rightly said: `We are victims of this crime too

. . . I want people to know that this could happen to anybody and that’s a crime’”).

Community Input at Sentencing: Victim’s Right or Victim’s Revenge? 75 BOSTON

UNIVERSITY LAW REVIEW 187 (1995).

See also, Abrahamson, Redefining Roles: The Victims Rights Movement, 1985

UTAH LAW REVIEW 517, 526 (“The victim has become middle class America. We are all

potential victims. Beginning in the 1960s, there has been an increase of crime — or at least

a perception of an increase of crime. More and more people began to see themselves and their

family members as victims of crime or as potential victims”).

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criminal act is a transgression against the social order, against the commonweal, the

body politic; a crime is a wrong committed against all the rest of us. In this logic, we

are all victims of any crime committed.

Almost no one advocates a victims’ rights constitutional amendment or

implementing legislation quite this all-inclusive, but the exact reach of an amendment

and the legislation bringing it into effect appear to still be a matter of debate. At the

state level, the term has been fairly narrowly drawn, imposing limitations based upon

the nature of the crime, the victim characteristics, offender characteristics, and/or

locality of the offense.48

Nature of the Crime

The concept of “victim” can be limited by the seriousness of the crime. Some

state victims’ rights provisions exclude victims of crimes other than felonies, and some

are limited primarily to the victims of crimes of violence.49 States that limit notification

and other victims’ rights to victims of felonies or violent crimes, nevertheless, often

permit restitution for the victims of property crimes.50

The proposals offered in the 104th Congress to amend the United States

Constitution spoke in terms of “crimes of violence” or “crimes of violence and

felonies,” but essentially left the task of defining “victims” to implementing

legislation.51 S.J.Res. 6 of the 105th Congress protected victims “of a crime of

The definitions of various state victims’ rights statutes and constitutional provisions

appear in Appendix IV. Note that most of the state constitutional amendments leave the

definition of “victim” either expressly to the legislature or implicitly to the legislature and the

courts.

In several instances, the definition of “victim” may be different for purposes of different

rights; so that, for example, a corporate entity might be considered a victim for purposes of

restitution within a particular jurisdiction but not for purposes of victim compensation.

E.g., W.VA. CODE §61-11A-2 (“`victim’ means a person who is a victim of a felony,

the fiduciary of a deceased victim’s estate or a member of a deceased victim’s immediate

family”); CONN.GEN.STAT.ANN. §54-201 (“victim’ means a person injured or killed as a

result of [criminal conduct]”); FLA. STAT.ANN. §960.03 (“`victim’ means a person who

suffers personal physical injury or death as a direct result of a crime [commission by any

person, including a juvenile offender, of a felony or misdemeanor offense punishable under

the laws of this state, which results in physical injury or death]”).

E.g., FLA.STAT.ANN. §775.089 (“the term `victim’ as used in this section and in any

provision of law relating to restitution means each person who suffers property damage or

loss, monetary expense, or physical injury or death as a direct or indirect result of the

defendant’s offense or criminal episode, and also includes the victim’s estate if the victim is

deceased, and the victim’s next of kin if the victim is deceased as a result of the offense”);

IDAHO CODE §19-5304 (“`victim” shall mean a person or entity . . . who suffers economic

loss or injury as the result of the defendant’s criminal conduct. . .”).

H.J.Res. 174/S.J.Res. 52 (“crime of violence and other crimes as may be defined by

law”); H.J.Res. 173 (“a crime either involving violence or for which the defendant can be

imprisoned for a period longer than one year”).

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violence, and other crimes that Congress may define by law,” a definition that seemed

to provide a threshold but one that permitted Congress to adjust the amendment’s

reach beyond that point. Congress, or in the absence of implementing legislation the

courts, would be called upon to define the threshold as well.52 Existing law suggested

several options for the definition of a crime of violence.

A “crime of violence” might include only those crimes during which a victim

sustained physical injury — murder, manslaughter, rape, assault and battery.53 A more

expansive definition would encompass crimes which include within their elements the

use of physical force or the threat of physical force against the person of another —

bringing in robbery and, under some statutes, kidnapping, arson, burglary, extortion,

conspiracy, attempt, solicitation, and facilitation.54 A more expansive version yet

would embrace crimes which include within their elements the use of physical force or

the threat of physical force against the person or property of another, adding malicious

mischief and other property crimes to the list.55 Finally, a “crime of violence” might

The Committee Report on S.J.Res. 44 indicates a somewhat different reading of

implementing authority. Although the Committee deleted a provision that would have given

the federal and state governments parallel implementing authority (“The Congress and the

States shall have the power to enforce this article within their respective jurisdictions by

appropriate legislation . . .”), it declared, “The Committee anticipates that Congress will

quickly pass an implementing statute defining `victim’ for Federal proceedings. Moreover,

nothing removes from the States their plenary authority to enact definitional laws for purposes

of their own criminal system. . . . Since the legislatures define what is criminal conduct, it

makes equal sense for them to also have the ability to further refine the definition of `victim,’”

S.Rep.No. 105-409 at 23 (emphasis added). This might be seen to permit a state to negate

the amendment by limiting the definition of “victims of violent crime” to coincide with preexisting state victims right coverage and no more. The Report’s subsequent description of

Congress’s implementing authority argues for a slightly less sweeping construction: “. . . the

Federal Government and the States will retain their power to implement the amendment. For

example, the States will, subject to the Supremacy Clause, flesh out the contours of the

amendment by providing definitions of `victims’ of crime and `crimes of violence,’” S.Rept.

105-409 at 35.

E.g., FBI, UNIFORM CRIME REPORTS: 1995, 5 (1996) that classifies murder,

nonnegligent manslaughter, forcible rape, robbery, and aggravated assault as violent crimes.

E.g., 28 U.S.C. 2901(c)(“`Crime of violence’ includes voluntary manslaughter,

murder, rape, mayhem, kidnaping, robbery, burglary or housebreaking in the nighttime,

extortion accompanied by threats of violence, assault with a dangerous weapon or assault with

intent to commit any offense punishable by imprisonment for more than one year, arson

punishable as a felony, or an attempt or conspiracy to commit any of the foregoing offenses”).

E.g., 18 U.S.C. 16 (“`crime of violence’ means — (a) an offense that has as an

element the use, attempted use, or threatened use of physical force against the person or

property of another, or (b) any other offense that is a felony and that, by its nature, involves

a substantial risk that physical force against the person or property of another may be used

in the course of committing the offense”); 18 U.S.C. 924(c)(3)(“`crime of violence’ means an

offense that is a felony and — (A) has as an element the use, attempted use, or threatened use

of physical force against the person or property of another, or (B) that by its nature, involves

a substantial risk that physical force against the person or property of another may be used

in the course of committing the offense”).

The Senate Report in the 105th Congress thought burglary and sexual offenses against

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be described to include those crimes that do not themselves necessarily involve the use

or threat of physical force but with which violence is often associated, e.g., drug

trafficking, gambling, gun running, or usury.56

Victim Characteristics

Victim characteristics may be used to either expand or contract the reach of a

victims’ rights proposal. Where the victim is killed, incapacitated, incompetent, or a

child, it is common to enlarge the concept of victim to include his or her spouse, parent

or other family member.57

On the other hand, the states also limit their victims’ rights provisions according

to the characteristics of the victim. Thus in several jurisdictions, only the innocent may

claim victims’ rights;58 participants in a brawl or in a “victimless” crime do not qualify,

nor do prisoners under some provisions.59 A final victim characteristic of limitation is

children might reasonable be considered crimes of violence, S.Rep.No. 105-409, at 24.

E.g., 18 U.S.C. 3156(4)(“`crime of violence’ means — (A) an offense that has an

element of the offense the use, attempted use, or threatened use of physical force against the

person or property of another; (B) any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the person or property of another may

be used in the course of committing the offense; or (C) any felony under chapter 109A

[relating to sexual abuse] or chapter 110 [relating to relating to sexual exploitation of

children]”); 42 U.S.C 3796ii-2(“`violent offender’ means a person who — (1) is charged with

or convicted of an offense, during the course of which offense or conduct — (A) the person

carried, possessed, or used a firearm or dangerous weapon; (B) there occurred the death of

or serious bodily injury to any person; or (C) there occurred the use of force against the

person of another, without regard to whether any of the circumstances described in

subparagraph (A), (B), or (C) is an element of the offense or conduct of which or for which

the person is charged or convicted; or (2) has one or more prior convictions for a felony crime

of violence involving the use or attempted use of force against a person with the intent to

cause death or serious bodily harm”).

E.g., IOWA CODE ANN. §910A.1 (“victim” . . . also includes the immediate family

members of a victim who died or was rendered incompetent as a result of the offense or who

was under eighteen years of age at the time of the offense”); MINN.STAT.ANN. §611A.01 (“if

the victim is a natural person and is deceased, `victim’ means the deceased’s surviving spouse

or next of kin”).

In some states, victims who are children are afforded additional rights. E.g.,

N.D.CENT.C ODE §§12.1-35-01 to 12.1-35-06 (child victim and witness fair treatment

standards); WASH.REV.CODE ANN. §§7.69A.010 to 7.69A.040 (child victims and witnesses);

WIS.STAT.ANN. §950.055 (child victims and witnesses: rights and services).

E.g., UTAH CODE ANN. §77-38-2 (“`victim of crime’ means any natural person . .

. unless the natural person is the accused or appears to be accountable or otherwise criminally

responsible for or criminally involved in the crime or conduct or a crime or act arising from

the same conduct, criminal episode, or plan”); COLO.REV.STAT. §24-4.1-302 (same).

E.g., ARIZ.CONST. art.2, §2.1 (“`victim’ means a person . . . except if the person is

in custody for an offense or is the accused); ALA.CODE §15-23-60 (“[A] victim is a person

against whom an offense has been committed . . . except if the person is in custody for an

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humanity. Under many provisions victims must be human beings; corporations, unions,

governments, and other legal entities cannot be considered victims for their purposes,60

again often with an exception for restitution.61

Once a Victim — Always a Victim

One of the principal sponsors of the amendment throughout the years, Senator

Kyl, during testimony before the House Judiciary Committee, highlighted one of the

difficulties associated with this task. Once rights have been triggered with respect to

a particular victim do they continue through all subsequent proceedings involving the

same offender including those otherwise unrelated to the victim?62

offense or is the accused”).

Some statutes specifically limit victims to “natural persons” or “individual.” Others

accomplish the same result by limiting their application to crimes that require a human victim

(homicide, rape, assault, etc.), e.g., ALA.CODE §15-23-60 (“a person against whom the

criminal offense [i.e., “a felony involving physical injury, the threat of physical injury, or a

sexual offense, or any offense involving spousal abuse or domestic violence] has been

committed”); KY.REV. STAT. §421.500 (“individual”); MASS. GEN.LAWS ANN. ch.258B

§1(“natural person”); MINN.STAT.ANN. §661A.01 (“natural person”); MO.ANN.STAT.

§595.200(“natural person”); N.D.CENT.CODE §12.1-34-01 (“natural persons”);

N.M.STAT.ANN. §31-26-3(“individual”); TEX.CODE OF CRIM.PRO. art.56.01 (“`victim’

means a person who is the victim of sexual assault, kidnapping, or aggravated robbery or who

has suffered bodily injury or death as a result of the criminal conduct of another”); UTAH

CODE ANN. §77-38-2(“natural person”); WYO.STAT. §1-40-202(“individual”).

ME.REV.STAT.ANN. tit.17-A §1322 (“`Victim’ means a government that suffers

economic loss or a person who suffers personal injury, death or economic loss as a result of

a crime or the good faith effort of any person to prevent a crime”), State v. Hudson, 470 A.2d

786, 788 (Me. 1984)(society for the protection of animals recognized as a “person” for

purposes of the Maine restitution statute); MICH.COMP.LAWS ANN. §780.765 (“For purposes

of this section only, `victim’ means an individual who suffers direct or threatened physical,

or emotional harm as a result of the commission of a crime. For purpose of [various

restitution subsections] victim includes a sole proprietorship, partnership, corporation,

association, governmental entitle, or any other legal entity that suffers direct physical or

financial harm as a result of a crime”).

House Hearing, 8 (testimony of Senator Kyl)(emphasis added)(“Patricia Pollard was

brutally attacked, left by the side of the road to die. Her attacker was found, was convicted.

But 10 years short of fulfilling his minimum sentence, he was paroled. His victim, Patricia

Pollard, was given no notice. . . . But because he was a bad actor, not long after he was

paroled, he was back under arrest again, this time for narcotics violations. But again, he was

to be released. The parole board had considered a release again, prior to the time he served

his minimum sentence, and again without notice to her. This time, however, the Arizona

Constitution had provided, in the interim, an opportunity for victims to be heard at such

proceedings. Someone found out about it, even though no notice was given to Patricia

Pollard. She was ultimately given the opportunity to persuade the parole board not to parole

her assailant. As a result, he remained in jail. I asked her about this. I said, `Did you fear for

your life?’ She said,`More importantly, I feared what he would do to others. I would not have

been able to live with myself if I had not gone down to the parole board, and told them what

he did to me and what he might do to others’”). It seems likely that the offender in this

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Offender & Locus Characteristics

Juveniles

The category of “victims” for purposes of victims’ rights can be narrowed simply

by failing to explicitly include victims of misconduct committed by juveniles which

would be crimes if committed by adult. Affording victim participation rights in juvenile

proceedings runs contrary to the tradition of nonadversarial inquiry and confidentiality

that attends juvenile proceedings. In recent years, however, that tradition has yielded

in the interest of protecting victims’ rights in some states.63

Historically, some proposals like S.J.Res.6 in the 105th Congress have provided

that “the rights established by this article shall apply in all Federal and State

proceedings, including . . . juvenile justice proceedings,” but have also empowered the

states “to enact exceptions when required for compelling reasons of public safety or

for judicial efficiency in mass victim cases.” This language clearly anticipates that the

victims’ rights amendment will apply in federal and state juvenile proceedings. It

would appear to preempt the field except for subsequently enacted provisions based

on public safety or judicial efficiency. More difficult to predict is the resolution of any

conflicts between the rights contemplated by the amendment and constitutionally based

rights of a juvenile. A clear statement in the amendment would be dispositive.64 In the

absence of a clear statement, the courts would endeavor to construe the two rights to

avoid conflict. In the course of doing so, it is uncertain whether statements in the

legislative history disavowing any intent to reduce defendant rights65 would be given

example had his original parole revoked on the basis of the second crime (rather than that he

was convicted of the second offense). Some might conclude the distinction makes no

difference.

E.g., ARIZ.REV.STAT.ANN. §§8-281 to 8-290.27 (victims’ rights for juvenile

offenses); MO.ANN.STAT. §595.200 (victim [is] a natural person who suffers direct or

threatened physical, emotional or financial harm as the result of the commission or attempted

commission of a crime. The term `victim’ also includes the family members of a minor,

incompetent or homicide victim.” “`Crime’ [is] an act which would constitute a violation of

any criminal statute including any act which may result in an adjudication of

delinquency”(emphasis added)); VT.STAT.ANN. tit.13 § 5301 (“`Victim’ means a person who

sustains physical, emotional or financial injury or death as a direct result of the commission

or attempted commission of a crime or act of delinquency and shall also include family

members of a minor, incompetent or a homicide victim” (emphasis added)).

In many other jurisdictions, however, the rights of victims of juvenile misconduct are

more limited than would be the case had the misconduct been committed by an adult, see e.g.,

Appendix XIV (victim attendance at juvenile proceedings).

The Committee defeated an amendment offering such language during the course of

its consideration of S.J.Res. 44 in the 105th Congress, S.Rept. 105-409 at 38 (“Nothing in

this article shall be construed to deny or diminish the rights of an accused as guaranteed by

this Constitution”).

143 Cong.Rec. S560 (daily ed. Jan.21, 1997)(“Our proposal will not deny or infringe

any constitutional right of any person accused or convicted of a crime”).

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greater weight than statements that defendant’s constitutional rights should not trump

victims’ interests.66

Military Personnel

The proposed amendments commonly apply to “military proceedings to the extent

that Congress may provide by law,” S.J.Res. 6 (105th Cong). Military tribunals

already have a victims’ rights regulatory requirement in place,67 but not all victims’

rights advocates are impressed with its effectiveness.68 The Committee Report has

explained that the extent of the application has been left to Congress because “of the

complicated nature of military justice proceedings, including proceedings held in times

of war,” S.Rep.No. 105-409, at 37.

Tribal and Territorial Courts

If an amendment explicitly defined victims of crime in terms which encompassed

those victimized by misconduct subject to adjudication in juvenile or military tribunals,

would any implications be drawn with respect to misconduct subject to adjudication

in tribal courts, or territorial courts, or the courts of the District of Columbia? Would

application turn upon the similarity of those courts to state courts or federal courts?

Past proposals called for application in “proceedings in any district or territory of

the United States not within a state,” e.g., S.J.Res. 6 (105th Cong.). This appears to

extend the amendment to the District of Columbia and the territories, but not to tribal

courts.

143 Cong.Rec. S561 (daily ed. Jan.21, 1997)(“victims of crime will never be treated

fairly by a system that permits the defendant’s constitutional rights always to trump the

protection given to victims. Such a system forever would make victims second-class citizens.

It is precisely because the Constitution is hard to change that basic rights for victims need to

be protected in it”).

Pischnotte & Quinn, The Victim and Witness Assistance Program, 39 AIR FORCE

LAW REVIEW 57 (1996).

Senate Hearing II at 38 (prepared statement of Marlene A. Young, Executive

Director, National Organization for Victim Assistance)(“It is time now to address the

frustration of victims in the military justice system who still are unable to receive restitution

for crimes committed against them”).

Senate Hearing II at 56 (prepared statement of Beverly Harris Elliot, President, National

Coalition Against Sexual Assault)(“The military criminal system is especially in need of

radical reform. In this system, victims/survivors may never find out what happens to their

case because, unlike civilian procedures, all records in miliary courts are closed, thus, the

victim/survivor has no way to obtain information. Perhaps most disturbing is the fact that if

the offender is military personnel, the case may be directed to a commanding officer as a

matter of individual discipline rather tan criminal prosecution. With the constitutional

amendment, a victim/survivor who files a criminal report on a military base would have the

right to be informed of decisions relating to the crime. These rights would greatly shift the

balance from secrecy to open information and accountability”).

CRS-21

Unavailability

Cases, where an accused is processed out of the criminal justice system due to

physical or mental incapacity or to some other circumstance that renders the accused

unavailable, supply another limitation by omission of the definition of “victim.” Thus,

for example, “victims” may feel their rights frustrated by policies, practices or

programs that prevent entry, result in removal, or otherwise divert suspects from the

criminal justice process such as those involving prosecutorial discretion, a grand jury’s

refusal to indict, a refusal to seek or grant extradition, civil commitment, incapacity to

stand trial, and programs of diversion.

In 105th Congress, S.J.Res. 6 extended to “all public proceedings relating to the

crime . . . . including . . . collateral proceedings such as habeas corpus.” Since grand

jury proceedings are not public, it would not extend to them. The status of victims’

rights with respect to civil commitment proceedings was less certain, particularly of an

accused found not guilty by of reason of insanity of committing a crime violence

against the victim.69 On the other hand, it probably reached extradition hearings, since

they are public, relating to the crime, and collateral to its prosecution.70

Crimes Committed Overseas

A surprising number of federal criminal laws apply overseas.71 Thus, for example,

acts of terrorism committed against Americans outside of the United States may

nevertheless be subject to prosecution under our laws, 18 U.S.C. 2332. For practical

reasons, Congress might decide to limit the definition of victims to exclude the victims

of crimes committed overseas, to include only the victims of those crimes prosecuted

The Committee Report on S.J.Res. 44 relies on the fact its version of S.J.Res. 44

extends rights to proceedings involving conditional release to answer the question. In

discussing the right to notice, attend and be heard, the Report notes that the “amendment

extends the right to be heard to proceedings determining a `conditional release’ from custody.

. . .It would . . . include a release from a secure mental facility for a criminal defendant or one

acquitted on the grounds of insanity. . . .” and that in the case of the notice due upon a release

or escape from custody related to the crime that the phrase “related to the crime” would

include “not only a release after a criminal conviction but also, for example, a release of a

defendant found not guilty of a crime by reason of insanity and then hospitalized in custody

for further treatment. . . .” S.Rept. 105-409 at 27, 30.

S.J.Res. 44, as reported, dropped the reference to “collateral proceedings” and

limited victims’ rights in custodial proceedings to those involving “conditional” custody,

S.J.Res. 44, §§5, 1. As a consequence, the result here too is the opposite under its provisions,

S.Rept. 105-409 at 27 (“A victim would have a right to speak, by virtue of this amendment,

at a hearing to determine `unconditional’ release. For example, a victim could not claim a

right to be heard at a hearing to determine the jurisdiction of the court or compliance with the

governing statute of limitations, even though a finding in favor of the defendant on these points

might indirectly and ultimately lead to the `release’ of the defendant”).

Doyle, Extraterritorial Application of American Criminal Law, CRS Report 94166S (Mar. 13, 1999).

CRS-22

in the United States, or to limit the definition to Americans. The options follow the

pattern the states have followed with respect to victim compensation for crimes

committed outside of the state. Some permit compensation for violations of their laws

even in those instances where the violations occur out-of-state;72 some allow

compensation for their citizens even under some circumstances when they are

victimized outstate;73 and some limit compensation to the victim of crimes committed

within their borders.74

Treatment of Victims

More than a few victims’ rights schemes contain a pledge that crime victims shall

be treated with dignity and respect by members of the criminal justice system.75 It is,

presumably, merely a restatement of the obligation that all public servants owe every

member of the public. But such a clause can be a source of consternation when it also

promises that victims will be given “fair” treatment, since there has been considerable

disagreement as to minimum requirements and the outer limits of “fair” both in this

context and in the context of the meaning the Constitution’s due process clauses. The

clause could lead to unintended results when future courts happen upon it in an

UTAH CODE ANN. §63-25a-402 (“`Victim’ means a person who suffers personal

physical or psychological injury or death as a direct result of criminally injurious conduct. .

.”; “`criminally injurious conduct’ . . . means conduct that: (a) is or would be subject to

prosecution in this state under Section 76-1-201 [relating to criminal liability for conduct

committed outside the State, inter alia] or (f) is an act of terrorism, as defined in 18 U.S.C.

2331 committed outside of the United States against a resident of this state. . .”).

OKLA.STAT.ANN. tit.21 §142.3 (“`Victim’ means a person who suffers personal

injury or death as a result of criminally injurious conduct,” “Criminally injurious conduct’

means an act which occurs or is attempted in this state, or against a resident of this state in

a state that does not have an eligible crime victims compensation program. . . “); TENN.CODE

ANN. §29-13-104 (“Payment of compensation shall be made to the claimant . . . for personal

injury to death of the victim which resulted from . . . (5). . . acts committed or taken in another

state if the victim was a resident of this state at the time the crime or act occurred and the

claimant’s request for compensation from the state in which the crime or act occurred is not

honored”).

MINN.STAT.ANN. §611A.52 (“`Victim’ means a person who suffers personal injury

or death as a direct result of: (1) a crime. . . .” “`Crime’ means conduct that (1) occurs or is

attempted anywhere within the geographical boundaries of this state, include Indian

reservations and other trust lands. . . .”); R.I.GEN.LAWS §12-25-2 (“`victim’ means a person

who is injured or killed by any act of a person or persons which is with the description of any

of the offenses specified in §12-25-4 and which act occurs in the state of Rhode Island”).

CONN.CONST. Art.1, §8[b]: “In all criminal prosecutions, a victim, as the General

Assembly may define by law, shall have the following rights: (1) the right to be treated with

fairness and respect throughout the criminal justice process. . . .”

S.C.CODE §16-3-1530(A): “Victims and witnesses have a right to be treated with dignity

and compassion. . . . (2) A victim or witness has a right to be treated with dignity by human

service professionals who provide basic assistance. (3) A victim or witness has a right to

receive courteous assistance as they cooperate with criminal justice personnel.

For citation to other state provisions see Appendix V.

CRS-23

interpretative search for legislative intent. On the other hand, it is very difficult to

refuse to promise to be fair.

Federal law now assures the victims of federal crimes, the right “to be treated

with fairness and with respect for the victim’s dignity and privacy,” 42 U.S.C.

10606(b)(1).

Notice, Attendance & Participation

The right of victims to be notified of, to attend, and to be heard at criminal

proceedings lies at the heart of most state and federal victims’ rights provisions —

constitutional and statutory. They are, however, enormously diverse.

Decision to Investigate, Arrest or Charge

The decisions to investigate, arrest and charge are ordinarily made by public

officials based on their assessment of the seriousness of the case, the strength of the

evidence suggesting that a crime has occurred and that a particular individual

committed it, the alternatives available, and the relative allocation of resources required

to investigate, arrest and/or prosecute.

Other than as complainants and witnesses, victims are not ordinarily involved in

these decisions. The decisions are thought of as being made in the public interest

rather than in the private interest of a victim. Preservation of private interests are

considered the domain of the civil side. For virtually every act of misconduct

prosecutable as a crime in the name of the public, there exists a cause of action for the

vindication of individual victims. But a private cause of action is expensive, carries no

threat of capital punishment or imprisonment under ordinary circumstances, and is of

little avail against a judgment-proof defendant.

If the police will not investigate, if they will not make an arrest following an

investigation, or if the public prosecutor will not agree to go forward with a

prosecution, as the law stands now no one may compel them to so. 76 Even in the

Lamborn, Victim Participation in the Criminal Justice Process: The Proposals for

a Constitutional Amendment, 34 WAYNE LAW REVIEW 125, 137-39 (1987) (speaking of

victims’ rights prior to the enactment of victims’ rights legislation in several states)(“The

victim of crime does not, by virtue of his victimization, automatically lose his rights as a

member of the general public. A member of the general public, however, does not have

extensive right of participation in the criminal justice process. . . . [H]is report of a crime to

the police may determine whether any official action is taken. However, after making a

report, his role in the criminal justice process as a matter of right is for the most part limited

to that of mere observer. Although the police may be influenced by his wishes, he has no right

to participate in their decision to investigate his report or to make an arrest. He may present

a complaint to a magistrate as the basis for issuance of an arrest warrant. Yet, although the

prosecutor too may be influenced by his wishes, he has no right to participate in that official’s

decision to bring charges, reduce or dismiss them, or enter into a plea agreement. Unless he

is called as a witness by the prosecutor or the accused, he has no right to be heard by either

CRS-24

federal system and those few states in which prosecution of serious crimes still requires

community approval in the form of a grand jury indictment, victims have no right to

make a presentation directly to the grand jury and, unless the grand jury chooses to call

them as witnesses, are permitted to do so only under extraordinary circumstances.77

This is not to say that victim participation is unknown. Victims can and do assist.

The laws of most states permit individual citizens to make arrests for crimes committed

in their presence, that constitute felonies, and/or for which they have probable cause;78

the jury or the judge at the criminal trial. Although the judge may be influenced by his wishes,

he has no right to be heard regarding the acceptance of the plea of the accused pursuant to a

plea agreement or regarding the sentence to be imposed. Moreover, he has no right to be

informed regarding the criminal justice process”).

There are a limited number of circumstances under which private efforts re-enforce those

of public authorities. Merchants, insurance companies and others hire investigators and

security personnel to protect their property and assist in the investigation of crimes against

their interests.

In re Wood, 833 F.2d 113, 116 (8th Cir. 1987); Simpson v. Reno, 902 F.Supp. 254,

257 (D.D.C. 1995); 1 BEALE & BRYSON, GRAND JURY LAW AND PRACTICE §6.05 (1986 &

1995 Supp.); Individual’s Right to Present Complaint or Evidence of Criminal Offense to

Grand Jury, 24 ALR 4TH 316.

Some states provide the target of a grand jury investigation the right to appear, 1 BEALE

& BRYSON, GRAND JURY LAW AND PRACTICE §6.05 (1986 & 1995 Supp.). If the United

States Constitution were amended to give victims the same rights afforded suspects, the

amendment might be construed as creating a right of victims to appear before the grand jury

in those jurisdictions which afforded the right to grand jury targets. S.J.Res.6 does not appear

to present this difficulty.

ALA.CODE §15-10-7; ALASKA STAT. §12.25.030; ARIZ.REV.STAT.ANN. §13-3884;

ARK.CODE ANN. §16-81-106; CAL. PENAL CODE §837; COLO.REV.STAT.ANN. §16-3-201;

CONN.GEN.STAT.ANN. *§53a-22(f); State v. Hodgson, 57 Dela. 383, 386, 200 A.2d 567,

569 (1964); State v. Furr, 723 So.2d 842, 844 (Fla.App. 1999); GA.CODE ANN. §17-4-60;

HAW. REV.STAT. §803-3; IDAHO CODE §19-604; ILL. COMP.LAWS ANN. ch.725 §5/107-3;

IND.CODE ANN. §35-33-1-4; IOWA CODE ANN. §804.9; KAN.STAT.ANN. §22-2403;

KY.REV.STAT. ANN. §431.005; LA.CRIM.PRO. CODE ANN. art.214; ME.REV.STAT.ANN.

tit.17-A §16; MD.CODE ANN. art.27 §594C; Commonwealth v. Claborne, 423 Mass. 275,

667 N.E.2d 873 (1996); MICH. COMP.LAWS ANN. §764.16; MINN.STAT .ANN. §629.37;

MISS.CODE ANN. §99-3-7; MO.ANN.STAT. *§563.051, Ash Grove v. Christian, 949 S.W.2d

259, 261 n.4 (Mo.App. 1997); MONT.CODE ANN. §46-6-502; NEB.REV.STAT. §29-402;

NEV.REV. STAT. §171.126; N.H.REV.STAT.ANN. *§627:5; N.J.STAT.ANN. §2A:169-3; State

v. Johnson, 122 N.Mex. 696, 699, 930 P.2d 1148, 1150 (1996); N.Y.CRIM.PRO. LAW

§140.30; N.C.GEN.STAT. §15A-404; N.D.CENT.CODE §29-06-20; OHIO REV. CODE ANN.

§2935.04; OKLA.STAT. ANN. tit.22 §202; ORE.REV.STAT. §133.225; Commonwealth v.

Corley, 507 Pa. 540, 491 A.2d 829 (1985); Monteiro v. Howard, 334 F.Supp. 411 (D.R.I.

1971); S.C.CODE ANN. §17-13-10; S.D.COD.LAWS ANN. §23A-3-3; TENN.CODE ANN. §407-109; TEX.CRIM.PRO.CODE ANN. art. 14.01; UTAH CODE ANN. §77-7-3; State v. Barber,

157 Vt. 228, 596 A.2d 337 (1990); Byrd v. Commonwealth, 158 Va. 897, 164 S.E. 400

(1932); State v. Bonds, 98 Wash.2d 1, 12-3, 653 P.2d 1024, 1031 (1982); State v. Gustke,

516 S.E.2d 283, 289-91 (W.Va.1999); Radloff v. National Food Stores, Inc., 20 Wis.2d 224,

237, 123 N.W.2d 570, 571 (1963); WYO.S TAT. §7-8-101. (*Creates defense for a private

citizen’s use of force to make an arrest; does not explicitly authorize arrest).

CRS-25

and many permit private sources to supplement the efforts of public prosecutors.79

There are campus police,80 insurance investigators,81 and private security guards,82 to

name a few. A number of federal and state laws encourage crime victims to bring civil

actions for treble damages as “private attorneys general.” The antitrust and

racketeering (RICO) statutes are perhaps the best known of these.83 Private law

enforcement efforts can be a mixed blessing; they are sometimes beneficial84 and

sometimes obstructive.85

But the fact remains, official investigations and prosecutions are ultimately subject

to the control of public officials.86 They may have political force on their side, but as

E.g., Tenn.Code Ann. §8-7-401: “(a) A victim of crime or the family members of

a victim of crime may employ private legal counsel to act as co-counsel with the district

attorney general or the district attorney general’s deputies in trying cases, with the extent of

participation of such privately employed counsel being at the discretion of the district attorney

general. The district attorney general or a deputy shall make the final and concluding

argument. The privately retained counsel shall immediately inform the district attorney general

of such counsel’s employment.” See generally, Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors, 47 ARKANSAS LAW REVIEW 511 (1994);

Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARVARD JOURNAL OF LAW &

PUBLIC POLICY 357 (1986).

See e.g., The Model Campus Police Jurisdiction Act: Toward Broader Jurisdiction

for University Police, 29 COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS 39 (1995).

See e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989).

See, Inbau, Farber, Arnold, PROTECTIVE SECURITY LAW (2d ed. 1996).

15 U.S.C. 15 (antitrust); 18 U.S.C. 1964 (RICO); state RICO statutes with civil

cause of action components include: ARIZ.REV.STAT.ANN. §§13-2312 to 13-2317;

COLO.REV.STAT. §§18-17-101 to 18-17-109; DEL.CODE tit.11 §§1501 to 1511;

FLA.STAT.ANN. §§895.01 to 895.09; GA.CODE ANN. §§16-14-1 to 16-14-15; HAWAII

REV.STAT. §§842-1 to 842-12; IDAHO CODE §§18-7801 to 18-7805; IOWA CODE ANN.

§§706A.1 to 706A.5; MISS.CODE §§97-43-1 to 97-43-11; NEV.REV.STAT. §§207.350 to

207.520; N.J.STAT.ANN. §§2C:41-1 to 2C:41-6.2; N.M.STAT.ANN. §§30-42-1 to 30-42-6;

N.Y.PENAL LAW §§460.00 to 460.80; N.C.GEN. STAT. §§75D-1 to 75D-14;

N.D.CENT.CODE §§12.1-06.1-01 to 12.1-06.1-08; OHIO REV.CODE §§2923.31 to 2923.36;

ORE.REV.STAT. §§166.715 to 166.735; R.I.GEN.LAWS §§7-15-1 to 7-15-11; UTAH CODE

ANN. §§76-10-1601 to 76-10-1610; WASH.REV.CODE ANN. §§9A.82.010 to 9A.82.170;

WIS.STAT.ANN. §§946.80 to 946.88.

Evidence developed through private investigations may not be subject to the same

level of Fourth Amendment scrutiny, for instance, see 1 LAFAVE, SEARCH AND SEIZURE §1.8

(2d ed. 1987 & 1994 Supp.).

See e.g., State v. von Bulow, 475 A.2d 995 (R.I. 1984) holding that the conduct of

an attorney-investigator employed by the children of the victim — selectively disclosing

incriminating evidence and withholding exculpatory evidence — denied Claus von Bulow a

fair trial on charges he had attempted to murder his wife. A subsequent trial ended in his

acquittal.

In the federal system, counsel for victims may not assume or be afforded control of

a prosecution, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787

(1987)(holding that while federal courts may under some circumstances appoint a prosecutor

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far as the law is concerned, victims have no legal authority to overthrow impartial

prosecutorial discretion.87

Consequently, most state and federal laws do not anticipate an active role for the

victim until a suspect has been formally accused.88 Concern for the victim between the

time of the commission of a crime and the time when a suspect is charged is limited to

making sure that any emergency medical needs are addressed and to advising victims

of the rights and services available to them.89

Occasionally, a commentator will suggest that police or prosecutorial discretion

might be adjusted;90 that, for example, victims might be empowered to compel a

judicially reviewable justification for a failure to investigate or prosecute,91 that private

to try cases of contempt for failure to comply with its orders, counsel for the beneficiary of

an order may not be appointed to prosecute failure to comply); cf., Morrison v. Olson, 487

U.S. 654 (1988)(upholding judicial appointment of Independent Counsel in light of the fact

that the Attorney General must request the appointment, that the powers of Counsel are

limited, and that Counsel is subject to removal by the Attorney General).

In states, even where private assistance is permitted due process requires that the public

prosecutor remain in control of a state prosecution once it reaches the trial stage, East v.

Scott, 55 F.3d 996, 999-1002 (5th Cir. 1995); Person v. Miller, 854 F.2d 656, 664 (4th Cir.

1988).

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)(“[I]n American jurisprudence,

at least, a private citizen lacks a judicially cognizable interest in the prosecution or

nonprosecution of another”).

But see, N.J.STAT.ANN. §52:4B-44(15)(permitting victims to submit impact

statements to the prosecutor’s office before any final decision on the charges to be filed).

E.g., N.MEX.STAT.ANN. §31-26-8 (“the law enforcement agency that investigates

a criminal offense shall: A. inform the victim of medical services and crisis intervention

services available to victims; B. provide the victim with the police report number for the

criminal offense and a copy of the following statement: `If within thirty days you are not

notified of an arrest in your case, you may call (telephone number for the law enforcement

agency) to obtain information on the status of your case’; and C. provide the victim with the

name of the district attorney for the judicial district in which the criminal offense was

committed and the address and telephone number for that district attorney’s office).

Some states postpone notification until after a suspect has been charged; others have

adopted a scheme that calls for notification of some rights and services by the police after the

commission of the crime and notification of other rights and services after a suspect has been

charged. See Appendix VIII.

Senate Hearing at 43 (prepared statement of Robert E. Preston, Co-Chaiman of the

National Victims’ Constitutional Amendment Network) (“Perhaps the most important reason

for a federal amendment protecting crime victims is the fact that victims are the inured parties

of crime, and thus should have a voice (not a veto) in the management of the investigation

and prosecution of the accused, and in the sanctioning of the convicted offender”)(emphasis

added).

Aynes, Constitutional Considerations: Government Responsibility and the Right

Not to Be a Victim, 11 PEPPERDINE LAW REVIEW 63 (1984)( also raising the prospect, inter

alia, of suit and/or prosecution of the prosecutor and an action against the government for

failure to prosecute). Note that separation of powers, due process and other constitutional

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prosecutors might be expressly authorized and afforded greater latitude,92 or that the

cultures of the police and prosecutor might be recast so they understand themselves

to be the agents of the victim.93

In response, critics recall the unattractive features that characterized private

prosecutors in the past.94 The proposals might, however, have the unintended although

not necessarily unfortunate result of bolstering the protection of the less popular

segments of society. Police and prosecutors are publicly accountable; they are

popularly elected or directed and paid by those who are popularly elected. The last

decade stands as living proof that public officials will respond to those who speak for

the battered spouse, the raped woman, or the abused child. Who would want it

otherwise? Public officials, however, may be far less likely to take up the cudgel for

the member of an unpopular minority group — the prostitute, the drug dealer, or the

prison inmate — who fall victim to crime. Such victims might be among the true

concerns that might confine such proposals in the legislative or state constitutional arena are

of little consequence when the proposals take the form of an amendment to the

U.S.Constitution.

Gittler, Expanding the Role of the Victim in Criminal Action: An Overview of Issues

and Problems, 11 PEPPERDINE LAW REVIEW 117 (1984)(raising the possibility of a modified

private prosecutor system).

Hudson, The Crime Victim and the Criminal Justice System: Time for a Change,

11 PEPPERDINE LAW REVIEW 23, 34 (1984)(“Some observers have suggested that police and

prosecutors should think of victims as their `clients’ or `customers.’ Another possibility is to

view the crime victim as a `consumer’ (along with the criminal perpetrator) of criminal justice

services provided by the government. These analogies, while not perfectly fitted to the

criminal justice process, are useful in defining an appropriate new role for the crime victim

in the criminal justice system. Another traditional idea that must be discarded in order to

make the criminal justice system work for the victim is the legal fiction that the state, rather

than the victim, is the injured party in a criminal case. As stated by victims themselves: `The

State of New York was not kidnapped, beaten, and raped. I was.’”).

Dolliver, Victims’ Rights Constitutional Amendment: A Bad Idea Whose Time

Should Not Come, 34 WAYNE LAW REVIEW 87, 90 (1987)(“By constitutionally emphasizing

the conflict between the victim and the accused and placing the victim in the role of a quasiprosecutor or co-counsel, the victims’ rights amendment represents a dangerous return to the

private blood feud mentality. The original purpose of establishing the public prosecutor’s

office was to insulate the victim from the accused and to relieve the victim of the burdens of

private prosecution – the time, money, and risk of life inherent in the private blood feud. Any

attempt to use the Constitution to enhance a victim’s rights by placing the victim in direct

conflict with the accused in court reverts to a process that history has shown to be less than

fully civilized”).

Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARVARD JOURNAL OF

LAW AND PUBLIC POLICY 357, 384 (1986)(“Assigning the prosecutorial function entirely to

the district attorney is done for indisputably good reasons. The power to prosecute is an

enormous power, which, if abused, can subject innocent citizens to great harms and costs.

Entrusting this power to a trained public official sworn to do impartial justice is arguably the

best means to ensure liberty of the innocent and punishment of the guilty. Additionally, by

centralizing prosecutorial power in the public prosecutor, norms of public policy are more

likely to be established, thereby breeding uniformity in the law and its process”).

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beneficiaries of a return to private prosecutors, particularly if they are publicly funded.

In any event, the proposals have not been favorably received, as least thus far.

In fact, under the amendments to the United States Constitution proposed to date,

rights would not attach until after a formal accusation. The decisions not to investigate

or not to initiate a prosecution would seem to rest beyond their reach.95

Bail

Bail decisions stand on a different footing. Victims’ rights to have their interests

considered, to be notified, to attend, and in some instances to make presentations at

bail proceedings now appear more frequently in state statutes and courts rules.96 This

is a relatively recent development. At one time, the victim was not only not considered

a legitimate participant in the bail hearing, but neither the safety nor any other interest

The Sixth Amendment grants various rights “in all criminal prosecutions,” a phrase

construed to mean only those conducted after the adversarial process against a particular

individual has begun “whether by way of formal charge, preliminary hearing, indictment,

information or arraignment,” Kirby v. Illinois, 406 U.S. 682, 689 (1972). Consequently, it

does not apply where there has been no such formal charge in some form. Similarly, a victim

rights amendment establishing rights “in all criminal prosecutions” would seem to embrace

the same construction and could not be construed to apply in cases where authorities had

refused to investigate, arrest or prosecute. Among the amendments presented during the 104th

Congress, the proposal circulated at the American Bar Association convention in fact used the

phrase “in all criminal prosecutions.” H.J.Res. 173 used comparable language: “in each

prosecution . . . any victim of the crime shall have the rights to. . .” The references in

H.J.Res. 174/S.J.Res.52 to the criminal, military, and juvenile justice processes” seem to yield

the same result — the amendment does not attach until after the process has begun. S.J.Res.6

and S.J.Res. 44 of the 105th Congress employed different terminology with the same apparent

result. They afforded participation rights for public proceedings relating to the crime; there

are no such proceedings prior to formal accusation of a defendant.

Even after charges are brought against a particular defendant, much the same can be

said of charges that are subsequently dropped or of charges that might have been brought but

are not. Senator Hatch addressed this point in his remarks on the Senate Report: “It is

important to note that the proposed amendment does not specify at what point the rights

attach, or in other words, at what point a person becomes a `victim’ . . . . This is particularly

important to the issue of dropped or uncharged counts against a defendant who has committed

multiple wrongs. Frequently, criminal defendants are suspected to have committed crimes for

which they are never charged or for which charges are dropped . . . . Do the victims of these

crimes have rights under the proposed amendment? If so, are they the same as the rights of

the victims of charged counts or of the defendant? Such victims, of course, would have the

same rights of notice and allocution relating to conditional release, the acceptance of

negotiated pleas (perhaps substantially complicating plea bargains), and sentencing. While

the exercise of these rights is unlikely to collide with any defendant rights, the exercise of the

right to an order of restitution for the victim of an uncharged count may indeed collide with

the rights of the defendant,” S.Rept. 105-409 at 42-43 (additional views of Senate Hatch).

See Appendix IX for a summary of state laws calling for victim notification,

attendance, and allocution at bail hearings.

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of the victim were thought to be relevant considerations. Bail was a guarantee against

suspect flight. That was all. The amount of security required and the conditions

imposed for pre-trial release were calculated solely to insure the courtroom presence

of the accused at the appointed hour.97 Most states had, and still have, right to bail

clauses for noncapital offenses in their state constitutions.98 Those jurisdictions that

did not have a right to bail clause had and have a prohibition against excessive bail,99

like that found in the United States Constitution, that some read to include or herald

a constitutional right to bail even where none was explicitly granted.100

In many jurisdictions, this view slowly gave way to a recognition that public and

individual safety were legitimate concerns for a judicial officer to consider when

deciding whether an accused should be released on bail, or more often, the conditions

placed upon the release of the accused. In some instances, the right to bail clause was

amended;101 in some, the state courts interpreted the right to bail to include a witness

At both state and federal law, the presumption of bail was so strong that even after

conviction when the defendant sought bail pending appeal most shared the opinion of Justice

Jackson, who sitting on the circuit with a court of appeals panel, declared, “Imprisonment to

protect society from predicted but unconsummated offenses is so unprecedented in this

country and so fraught with danger of excesses and injustice that I am loathe to resort to it,

even as a discretionary judicial technique to supplement conviction of such offenses as those

of which defendants stand convicted,” Williamson v. United States, 184 F.2d 280, 282-83 (2d

Cir. 1950), quoted in National Conference on Bail and Criminal Justice, BAIL IN THE UNITED

STATES: 1964, 5 (1964).

ALA.CONST. art.I, §16; ALASKA CONST. art.I, §11; ARIZ.CONST. art.2, §22;

ARK.CONST. art.2, §8; CAL.CONST. art.1, §12; COLO.CONST. art.II, §19; CONN.CONST.

art.I, §8; DEL.CONST. art.I, §12; FLA.CONST. art.1, §14; IDAHO CONST. art.I, §6; ILL.CONST.

art.1, §9; IND.CONST. art.1, §17; IOWA CONST. art.1, §12; KAN.BILL OF RTS. §9; KY.BILL

OF RTS. §16; LA.CONST. art.1, §18; ME.CONST. art.I, §10; MICH.CONST. art.1, §15;

MINN.CONST. art.1, §7; MISS.CONST. art.3, §29; MO.CONST. art.1, §20; MONT.CONST.

art.II, §21; NEB.CONST. art.1, §9; NEV.CONST. art.1, §7; N.J.CONST. art.I, ¶11;

N.MEX.CONST. art.II, §13; N.D.CONST. art.I, §11; OHIO CONST. art.I, §9; OKLA.CONST.

art.2, §8; ORE.CONST. art.I, §14; PA.CONST. art.1, §14; R.I.CONST. art.1, §9; S.C.CONST.

art.I, §15; S.D.CONST. art.VI, §8; TENN.CONST. art.1, §15; TEX. CONST. art.1, §§11, 11a;

UTAH CONST. art.I, §8; VT.CONST. ch.II, art.40; WASH.CONST. art.1, §20; WIS.CONST.

art.1, §8; WYO.CONST. art.1, §14.

GA.CONST. art.I, §1 ¶17; HAW. CONST. art.I, §12; MD.DECL.OF RTS. art.25;

MASS.CONST. pt.1, art.26; N.H.CONST. Pt.I, art. 33; N.Y.CONST. art.I §5; N.C.CONST. art.I,

§27; VA.CONST. Art.I, §9; W.VA.CONST. art.III, §5.

100

101

Huihui v. Shimoda, 64 Haw. 527, 530-39, 644 P.2d 968, 971-76 (1982).

ARIZ.CONST. art.2, §22: “All persons charged with crime shall be bailable by

sufficient sureties, except for . . . 3. felony offenses if the person charged poses a substantial

danger to any other person or the community, if no conditions of release which may be

imposed will reasonably assure the safety of the other person or the community and if the

proof is evident or the presumption great as to the present charge.”

CAL.CONST. Art.1, §12: “A person shall be released on bail by sufficient sureties, except

for: . . . (b) Felony offenses involving acts of violence on another person, or felony sexual

assault offenses on another person, when the facts are evident or the presumption great and

the court finds based upon clear and convincing evidence that there is a substantial likelihood

the person’s release would result in great bodily harm to others; or (c) Felony offenses when

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protection and judicial integrity exception;102 courts in still other states held that the

right to bail clauses permitted imposing victim or public safety conditions103 and

allowed revocation of bail if the conditions were broken.104

Finally, the United States Supreme Court removed the cloud formed by the

contention that a refusal to grant pretrial bail, because of the threat to public or

individual safety posed by the accused, might violate either the United States

the facts are evident or the presumption great and the court finds based on clear and

convincing evidence that the person has threatened another with great bodily harm and that

there is a substantial likelihood that the person would carry out the threat if released”).

COLO.C ONST. art.II, §19(1)(b): “All persons shall be bailable by sufficient sureties

pending disposition of charges except: . . . (b) When, after a hearing held within ninety-six

hours of arrest and upon reasonable notice, the court finds that proof is evident or

presumption is great as to the crime alleged to have been committed and finds that the public

would be placed in significant peril if the accused were released on bail and such person is

accused in any of the following cases: [a crime of violence alleged to have been committed

while the accused was on bail, probation or parole in connection with the prior crime of

violence, or when the accused has two prior felony convictions at least one of which is for a

crime of violence].”

FLA.CONST. Art.1, §14: “Unless charged with a capital offense or an offense punishable

life imprisonment and the proof of guilt is evident or the presumption is great, every person

charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial

release on reasonable conditions. If no conditions of release can reasonably protect the

community from risk of physical harm to persons, assure the presence of the accused at trial,

or assure the integrity of the judicial process, the accused may be detained.”

ILL.CONST. Art.1, §9: “All persons shall be bailable by sufficient sureties, except for

the following offenses where the proof is evident or the presumption great: capital offenses;

offenses for which a sentence of life imprisonment may be imposed as a consequence of

conviction; and felony offenses for which a sentence of imprisonment, without conditional and

revocable release, shall be imposed by law as a consequence of conviction, when the court,

after a hearing, determines that release of the offender would pose a real and present threat

to the physical safety of any person.”

MICH.CONST . Art.1, §15: “. . . All persons shall, before conviction, be bailable by

sufficient sureties, except that bail may be denied for the following persons when the proof

is evident or the presumption great: . . . (c) A person who is indicted for, or arraigned on a

warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping

with the intent to extort money or other valuable thing thereby, unless the court finds by clear

and convincing evidence that the defendant is not likely to flee or present a danger to any other

person. . . .”

See also, LA.CONST. Art.1, §18; MISS.CONST. Art.3, §29; N.MEX.CONST. art.2, §13;

OKLA CONST. Art.2, §8; TEX.CONST. art.1, §11a; UTAH CONST. Art.I, §8; VT.CONST. ch.II,

art.40; WIS.CONST. Art.1, §8(2).

102

People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 79-80, 322 N.E.2d 837, 840-41

(1985); State v. Mecier, 136 Vt. 336, 339, 388 A.2d 435, 438 (1978); In re Humphrey, 601

P.2d 103, 106 (Okla. Crim.App. 1979).

103

104

Henley v. Taylor, 324 Ark. 114, 115-16, 918 S.W.2d 713, 714 (1996).

State v. Dodson, 556 S.W.2d 938, 945 (Mo.App. 1977); Mello v. Superior Court,

117 R.I. 578, 583-85, 370 A.2d 1262, 1264-265 (1977).

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Constitution’s excessive bail clause or its due process clauses or both.105 The Court

declared that neither clause bars legislative creation of a system that conditions pretrial

release upon public safety as well as preventing flight.106

When victim safety had become a more clearly permissible consideration, the

justification for victim participation in bail proceedings became more obvious.107

105

“Excessive bail shall not be required . . .” U.S.CONST. Amend.VIII; “ . . . [N]or

shall any person . . . be deprived of life, liberty, or property, without due process of law. . .

U.S.CONST. Amend.V; “. . . [N]or shall any State deprive any person of life, liberty, or

property, without due process of law. . . . U.S.CONST. Amend.XIV, §1. For many years,

resolution of the question of whether a right to bail had been guaranteed by the United States

Constitution was confounded by seemingly conflicting dicta in two Supreme Court decisions

announced within months of each other, compare Carlson v. Landon, 342 U.S. 524, 545

(1951)(“The [excessive] bail clause was lifted with slight changes from the English Bill of

Rights Act. In England that clause has never been thought to accord a right to bail in all

cases, but merely to provide that bail shall not be excessive in those cases where it is proper

to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that

indicated any different concept”), with, Stack v. Boyle 343 U.S. 1, 5 (1951)(“Like the ancient

practice of securing the oaths of responsible persons to stand as sureties for the accused, the

modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture

serves as additional assurance of the presence of an accused. Bail set at a figure higher than

an amount reasonably calculated to fulfill this purpose is `excessive’ under the Eighth

Amendment), and 342 U.S. at 7-8 (Jackson & Frankfurter, JJ.)(“The practice of admission

to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail

upon mere accusation until it is found convenient to give them a trial. On the contrary, the

spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.

Without this conditional privilege, even those wrongly accused are punished by a period of

imprisonment while awaiting trial and are handicapped in consulting counsel, searching for

evidence and witnesses, and preparing a defense”).

106

United States v. Salerno, 481 U.S. 739, 755 (1988)(“The Act [being challenged on

excessive bail and due process grounds] authorizes the detention prior to trial of arrestees

charged with serious felonies who are found, after an adversary hearing, to pose a threat to

the safety of individuals or to the community which no condition of release can dispel. The

numerous procedural safeguards detailed above must attend this adversary hearing. We are

unwilling to say that this congressional determination, based as it is upon that primary concern

of every government — a concern for the safety and indeed the lives of its citizens — on its

face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail

Clause of the Eighth Amendment”).

107

Eikenberry, Victims of Crime/Victims of Justice, 34 WAYNE LAW REVIEW 29, 3940 (1987)(“Initially, the defendant is brought into court, informed of his rights and the charges

against him, and allowed to enter a plea. . . . If he pleads not guilty, the case is set for trial.

The judge then sets bail and other conditions for the defendant’s release. The victim has a

vital interest in participating in this phase of the proceedings, particularly with respect to

setting bail and the conditions of the defendant’s release. The victim has a vital interest in

participating in this phase of the proceedings, particularly with respect to setting bail and the

conditions for the defendant’s release. The victim may have real concerns about his own or

his family’s safety if the defendant is released. . . . Because the defendant is more likely to be

dangerous to his victim than to other members of the community, . . . consideration of the

victim’s concerns is appropriate”); see also, The Rights of Crime Victims in the Criminal

Justice System: Is Justice Blind to the Victims of Crime? 16 NEW ENGLAND JOURNAL OF

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Opponents of victim participation in bail determinations, by and large, do not object

to the victims appearing as witnesses who have been threatened by the accused. They

tend to object to punishing an accused immediately or to preventive detention based

on a presumption of future lawlessness of an unconvicted individual.108

Only a few states expressly grant the victim the right to be heard at the

defendant’s bail hearing either specifically or under a general right to be heard at all

proceedings.109 A few more permit consultation with the prosecutor prior to the bail

CRIMINAL AND CIVIL CONFINEMENT 241, 247 (1990).

108

Henderson, The Wrongs of Victim’s Rights 37 STANFORD LAW REVIEW 937, 973

(1985)(“Preventive detention denies free will or choice and rests on a deterministic, wicked

person theory of crime. The accused become `criminals,’ and as such, they may be removed

from society for society’s protection. The transformation of human beings into criminals

justifies incarcerating them whether or not they have formally been found guilty of an offense.

Moreover, if arrest is taken as sufficient evidence of guilt, the question of punishing the

innocent never arises under this rationale”); United States v. Salerno, 481 U.S. at 764

(Marshall, J., dissenting)(“[O]ur fundamental principles of justice declare that the defendant

is as innocent on the day before his trial as he is on the morning after his acquittal. Under this

statute an untried indictment somehow acts to permit a detention, based on other charges,

which after an acquittal would be unconstitutional. The conclusion is inescapable that the

indictment has been turned into evidence, if not that the defendant is guilty of the crime

charged, then that left to his own devices he will soon be guilty of something else. `If it

suffices to accuse, what will become of the innocent?’”).

109

S.D.COD.LAWS ANN. §23A-28C-1(“Consistent with §23A-28C-4 [defining

victims], victims of the crime, including victims of driving under the influence vehicle

accidents, have the following rights: . . . (3) to testify at scheduled bail or bond hearings

regarding any evidence indicating whether the offender represents a danger to the victim or

the community if released”).

IDAHO CODE §19-5306(1)(“Each victim of a crime or juvenile offense shall be: . . . (e)

Heard, upon request, at all criminal justice proceedings considering . . . incarceration or

release of the defendant unless manifest injustice would result”).

See also, ALA.CONST. Amend. 557; ALASKA CONST. Art.I, §24; ARIZ. CONST. Art.2,

§2.1, ARIZ.REV.STAT. ANN. §13-4421; COLO.CONST. Art.II, §16a, COLO.REV.STAT.ANN.

§§24-4.1-302, 24-4.1-302.5(victims have a right to be heard on questions of bail modification

or reduction); MO.CONST. art.1, §32; S.C.CONST. Art.I, §24, S.C.CODE ANN. §16-3-1520;

UTAH CONST. art.I, §38, UTAH CODE ANN. §77-38-4; VA.CODE ANN. §19.2-11.01;

WASH.CONST. Art.1, §35.

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hearing.110 Most allow victims to attend.111 And virtually all provide either that victims

should be notified of bail hearings or that victims should be notified of the defendant’s

release on bail or both.112

Under federal law, victims of alleged acts of interstate domestic violence or

interstate violations of a protective order have a right to be heard at federal bail

proceedings concerning any danger posed by the defendant.113 In other federal cases,

victims’ prerogatives seem to be limited to the right to confer with the prosecutor,

notification of, and attendance at, all public court proceedings.114

110

GA.CODE ANN. §17-17-7(d)(“Whenever possible, the prosecuting attorney shall

offer the victim the opportunity to express the victim’s opinion on the release of the accused

pending judicial proceedings”).

VT.STAT.ANN. tit.13 §5308 (“If practicable the victim of a listed crime shall be given

notice of the defendant’s arraignment by the law enforcement agency that issued the citation

or made the arrest. The victim of a listed crime shall have the right to be present at the

defendant’s arraignment. The prosecutor’s office shall inform the victim about the issues

concerning bail and the prosecutor shall advise the court of the victim’s position regarding

bail”).

See also, FLA.STAT.ANN. §960.001(g); KY.REV.STAT.ANN. §421.500; MONT. CODE

ANN.§46-24-104; W.VA. CODE §61-11A-6.

111

OHIO REV.CODE ANN. §2930.09 (“A victim in a case may be present whenever the

defendant in the case is present during any stage of the case against the defendant that is

conducted on the record, other than a grand jury proceeding, unless the court determines that

exclusion of the victim is necessary to protect the defendant’s right to a fair trial. At any stage

of the case at which the victim is present, the court, at the victim’s request, shall permit the

victim to be accompanied by an individual to provide support to the victim unless the court

determines that exclusion of the individual is necessary to protect the defendant’s right to a

fair trial”). See Appendix IX for citation to further examples.

112

NEB.REV.STAT. §81-1848 (“Victims as defined in section 29-119 shall have the

following rights: . . . (b) to receive from the county attorney advance reasonable notice of any

scheduled court proceedings and notice of any changes in that schedule”).

S.D.COD.LAWS §23A-28C-1 (“. . . [V]ictims of the crime, including vicitms of driving

under the influence vehicle accidents, have the following rights: (1) Notification of scheduled

bail hearings and release from custody . . . “). See appendix IX for the citation to further

examples.

113

18 U.S.C. 2236 (“In any proceeding pursuant to section 3142 [relating to the release

or detention of a defendant pending trial] for the purpose of determining whether a defendant

charged under this chapter shall be released pending trial, or for the purpose of determining

conditions of such release, the alleged victim shall be given an opportunity to be heard

regarding the danger posed by the defendant”).

114

42 U.S.C. 10606(b)(“A crime victim has the following rights: . . . (3) the right to

be notified of court proceedings, (4) the right to be present at all public court proceedings

related to the offense, unless the court determines the testimony by the victim would be

materially affected if the victim heard other testimony at trial, (5) the right to confer with [the]

attorney for the Government in the case. . .”).

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S.J.Res. 6 (105th Cong.) gave victims the right “to be heard and to submit a

written statement at a public pretrial . . . proceeding to determine a release from

custody.”115

Privacy

The concern for victims’ safety and protection from harassment evidenced in the

evolution of state bail laws in some jurisdictions surfaces in victim protection and

victim privacy sections in the victims’ rights provisions as well.116 None of the early

proposals to amendment the United States Constitution included such a provision.

Plea Bargains

Negotiated guilty pleas account for over ninety percent of the criminal convictions

obtained.117 Plea bargaining offers the government convictions without the time, cost

or risk of a trial, and in some cases a defendant turned cooperative witness; it offers

a defendant conviction but on less serious charges, and/or with the expectation of a

less severe sentence than if he or she were convicted following a criminal trial,118

and/or the prospect of other advantages controlled, at least initially by the prosecutor

— agreements not to prosecute family members or friends, or to prosecute them on

115

The Committee amended version of S.J.Res. 44 contained a like provision (“A

victim of a crime of violence . . . shall have the rights: . . . to be heard, if present, and to

submit a statement at all proceedings to determine a conditional release from custody. . .”).

116

ILL.CONST. Art.1, §8.1 (“(a) Crime victims, as defined by law, shall have the

following rights as provided by law: . . . (7) the right to be reasonably protected from the

accused throughout the criminal justice process”).

IDAHO CONST. Art.I, §22 (“a crime victim, as defined by statute, has the following

rights: . . . (8) to refuse an interview, ex parte contact, or other request by the defendant, or

any other person acting on behalf of the defendant, unless such request is authorized by law”).

See Appendix VIII for other examples.

117

Karmen, CRIME VICTIMS: AN INTRODUCTION TO VICTIMOLOGY 189 (3d ed.

1996)(out of every 100 felony arrests, 54 result in convictions, 52 of those 54 by guilty plea,

citing a 1992 Department of Justice study of 30 jurisdictions); Administrative Office of the

United States Courts, Judicial Business of the United States Courts, 228 (1999)(only 3,629

of 59,885 of the defendants convicted of federal crimes in the fiscal year ending in September,

1998 were found guilty by a judge or jury following a criminal trial; the rest pled guilty or

nolo contendere).

118

In additional to extraordinarily broad discretion to initiate or abandon a prosecution,

Wayte v. United States, 470 U.S. 598 (1985); Town of Newton v. Rumery, 480 U.S. 386

(1987), prosecutors play an important role in sentencing, see e.g., 18 U.S.C. 3553(b)(federal

court may depart from the federal sentencing guidelines upon the motion of the prosecutor);

18 U.S.C. 3553(e)(federal court may sentence a defendant below an otherwise mandatory

minimum term of imprisonment upon the motion of the prosecutor).

CRS-35

less serious charges than might be otherwise be filed;119 forfeiture concessions;120

testimonial immunity;121 entry into a witness protection program;122 and informant’s

rewards,123 to mention a few.

For the victim, a plea bargain may come as an unpleasant surprise, one that may

jeopardize the victim’s prospects for restitution, one that may result in a sentence the

victim finds insufficient,124 and/or one that changes the legal playing field so that the

victim has become the principal target of prosecution.125

As in the case of bail, victims entering the debate over whether practices involving

plea bargaining should be changed to more effectively accommodate their interests may

initially find allies in those already critical of the process.126 So, for example, the victim

who feels the accused should be brought to trial and suffer the full punishment of the

119

E.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959

F.2d 1011 (D.C.Cir. 1992).

120

Cf., Libretti v. United States, 116 S.Ct. 356 (1995)(government agreed to limit

charges and make a favorable sentencing recommendation in exchange for the defendant’s

guilty plea and his agreement to transfer all property that would have been subject to criminal

forfeiture upon his conviction).

121

See e.g., 18 U.S.C. 6001-6005 (witness immunity).

122

E.g., 18 U.S.C. 3521 (witness relocation and protection).

123

E.g., 18 U.S.C. 3059 (rewards); 18 U.S.C. 3059A (rewards for crimes against

financial institutions); 18 U.S.C. 3071-3077 (rewards for information relating to terrorism).

124

“The victim has two interests in the plea bargain decision. One interest is financial:

the victim is interested in restitution being imposed as part of the sentence. Thus in a charge

bargaining, the victim wants to insure that the defendant pleads to a charge sufficiently serious

to allow restitution; and in a sentence bargain, the victim wants to advocate an award of

restitution. The victim’s second interest is retribution, or revenge: the victim feels he or she

has been violated and that the criminal’s punishment should be severe. Therefore, in a charge

bargain, the victim would want the defendant to plead guilty to a serious charge, and in a

sentence bargain, the victim would want a significant sentence imposed,” Walling, Victim

Participation in Plea Bargains, 65 WASHINGTON UNIVERSITY LAW QUARTERLY 301, 307-8

(1987).

125

E.g., The Proper Standard for Self-Defense in New York: Should People v. Goetz

Be Viewed as Judicial Legislation or Judicial Restraint, 39 SYRACUSE LAW REVIEW 874

(1988)(discussing prosecution of subway rider who shot the four young men he claims

attempted to rob him; Goetz was subsequently prosecuted and convicted for unlawful

possession of a handgun).

126

Misner, Recasting Prosecutorial Discretion, 86 JOURNAL CRIMINAL LAW &

CRIMINOLOGY 717, 751 (1996)(“Until recent times, opponents of plea bargaining tended to

view it as unnecessarily compromising rights of the defendant. Recently, however, plea

bargaining has come under attack from those who believe it has resulted in insufficient

punishment for offenders. Critics now include members of the victims’ rights movement who

have seen plea bargaining as failing to extract justice from defendants, i.e., the victim’s

preferences are not always followed by the prosecutor. Critics of plea bargaining spearheaded

the Proposition 8 reform in California and successfully campaign for the `Victims’ Bill of

Rights’”).

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law would find himself in full accord with those who urge that plea bargaining be

abolished or drastically curtailed.127

Victims’ advocates and the traditional critics of plea bargaining, however, rarely

agree on solutions. Only a few proponents of more extensive victims’ rights have

argued that victims should have a right to participate in plea negotiations; they would

prefer that the court give serious consideration to rejecting the bargains to which they

object.128

Opponents argue that increased victim involvement in the plea negotiation process

will reduce the number of plea bargains and thus result in increased costs and delays

in criminal proceedings.129

127

See, Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx

County, New York Case Study, 64 FORDHAM LAW REVIEW 987 (1995) (discussing and citing

commentary that discusses plea bargain abolition in Alaska, El Paso, Texas and Bronx

County, New York).

128

Welling, Victim Participation in Plea Bargaining, 65 WASHINGTON UNIVERSITY

LAW QUARTERLY 302 (1987)(“Presented with the alternative of implementing victim

participation in plea bargains through the prosecutor or through the court, participation

through the court is preferable for three reasons. First, the prosecutor’s role, in the plea

bargain as well as throughout the prosecution, is to represent society. In contrast, the victim

represents only himself. The interests of society and of the victim are not always identical,

and it is unwise to confuse the prosecutor’s function by obliging him or her to consider the

victim’s interests. Unlike the prosecutor, the court has already assumed the role of

adjudicating competing interests to achieve justice, and simply injecting one additional interest

for consideration would not conflict with the court’s previously defined role. Second, victim

participation through the court is preferable to participation through the prosecutor because

recent empirical evidence indicates that institutional disincentives exist for prosecutors to

consider victim’s interests. One disincentive is that victim participation diminishes the

prosecutor’s power. Thus, consultation through the prosector may be ineffective as a

practical matter. Third, victim participation through the court is better than through the

prosecutor because one of the interests that participation protects is the victim’s feeling of

importance. This feeling is more effectively fostered when the victim addresses the court

directly rather than merely addressing one of the litigants”).

129

House Hearing at 144-45 (prepared statement of Ellen Greenlee, President, National

Legal Aid and Defender Association)(“Prosecutors’ offices will be tied in knots. They

currently resolve nine out of ten criminal cases by plea agreement. It is an indispensable way

of managing the overwhelming crush of cases, and of inducing cooperation by low-level

offenders against their higher-ups. Letting a victim block a plea agreement turns a case that

would take a few days into a trial that could take a few months. Yet a victim’s understandable

focus on just their own case could confound prosecutors’ ability to simultaneously juggle the

thousands of other cases that they are expected to bring to satisfactory disposition. . . . the

judicial system will be particularly crippled. Blocked plea agreements will mean a massive

increase in the current 10 percent of criminal cases which require a full-blown and time

consuming trial. . . . Indigent defense systems will also find their workloads massively

increased by the reductions in pleas and the increase in trials. . . . Exacerbating this will be

demands under the new amendment for lawyers to represent indigent victims to vindicate their

new rights in the criminal system”).

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Some states victims’ rights provisions are limited to notification of the court’s

acceptance of a plea bargain.130 More often, however, the states permit the victim to

address the court prior to the acceptance of a negotiated guilty plea131 or to confer with

the prosecutor concerning a plea bargain.132

130

CAL.PENAL CODE §679.02 (“(a) The following are hereby established as the

statutory rights of victims and witnesses of crimes: . . . (12) To be notified by the district

attorney’s office where the case involves a violent felony,as defined in subdivision (c) of

Section 667.5, or in the event of a homicide, the victim’s next of kin, of a pending pretrial

disposition before a change of plea is entered before a judge. (A) A victim of any felony may

request to be notified, by the district attorney’s office, of a pretrial disposition. (B) If it is not

possible to notify the victim of the pretrial disposition before the change of plea is entered, the

district attorney’s office or the county probation department shall notify the victim as soon as

possible. (C) The victim may be notified by any reasonable means available”).

See also, IOWA CODE ANN. §915.13; MD.CODE ANN. Art.27, §770; MINN.STAT.ANN.

§§611A.03; NEB.CONST. Art.1, §28; NEV.CONST. Art.1, §8; N.D.CENT.CODE §12.1-3402; ORE.CONST. Art.1, §42; OKLA.STAT.ANN. tit.19 §215.33; WYO.STAT. §1-40-204.

131

R.I.GEN.LAWS §12-28-4.1(a) (“Prior to acceptance by the court of a plea

negotiation and imposition of sentence upon a defendant who has pleaded nolo contendere or

guilty to a crime, the victim of the criminal offense shall, upon request, be afforded the

opportunity to address the court regarding the impact which the defendant’s criminal conduct

has had upon the victim. The victim shall be permitted to speak prior to counsel for the state

and the defendant making their sentencing recommendations to the court and prior to the

defendant’s exercise of his or her right to address the court”).

See also, ARIZ.CONST. Art.2, §2.1, ARIZ.REV.STAT.ANN. §§13-4419, 13-4423; COLO.

CONST. Art.II, §16a, COLO.REV.STAT.ANN. §24-4.1-302.5; CONN.CONST. art.I, §8[b.];

FLA.CONST., Art.I, §16(b), F LA.S TAT.ANN. §960.001; IDAHO CONST. Art.1, §22, IDAHO

CODE §19-5306; ME.REV.STAT.ANN. tit.17-A §1173; MISS.CODE §§99-43-33, 99-43-27;

MO.CONST. Art.1, §32; S.D.COD. LAWS ANN. §§23A-28C-1; UTAH CONST. Art.I, §28;

WASH.REV.CODE ANN. §§9.94A.080, 9.94A.090.

132

DEL.CODE ANN. tit.11 §9405 (“Consistent with the duty to represent the interests

of the public as a whole, the prosecutor shall confer with a victim before amending or

dismissing a charge or agreeing to a negotiated plea or pretrial diversion. Failure of the

Attorney General to confer with the victim does not affect the validity of an agreement

between the state and the defendant or of an amendment, dismissal, plea, pretrial diversion or

other disposition of the case”).

See also, ALA.CODE §§15-23-64, 15-23-71; ALASKA CONST. Art.I, §24;

FLA.STAT.ANN. §960.001; GA.CODE ANN. §17-17-11; HAW. REV.STAT. §801D-4; IDAHO

CONST. Art.1, §22, IDAHO CODE §19-5306; ILL.CONST. Art.1, §8.1, ILL.COMP.LAWS ANN.

ch.725 §120/4.5; IND.CONST. Art.1, §13(b), IND. CODE ANN. §35-40-5-3; KAN.STAT.ANN.

§§22-3436, 74-7333; KY.REV.STAT.ANN. §421.500; LA.REV.STAT.ANN. §46:1844; MASS.

GEN.LAWS ANN. ch.258B §3; MICH.CONST. Art.1, §24, MICH.COMP.LAWS ANN. §780.756;

MO.ANN.STAT. §595.209; MONT.CODE ANN. §46-24-104; N.H.REV. STAT.ANN. §21-M:8-k;

N.J.STAT.ANN. §52:4B-44; N.MEX. CONST. Art.II, §24, N.MEX.STAT.ANN. §31-24-5; N.Y.

EXEC.LAW §§642, 647; OHIO REV.C ODE ANN. §2930.06; PA. STAT.ANN. tit.18 §11.201;

S.C. CONST. Art.I, §24, S.C.CODE ANN. §16-3-1545; TENN.CONST. Art.I, §35; TEX.CONST.

Art.I, §30; VA.CONST. Art.I, §8-A; W.VA.CODE §61-11A-6(5); WIS.CONST. Art.1, §9m.

CRS-38

S.J.Res.6 (105th Cong.) required that victims be allowed to address the court

before a plea bargain was accepted in any state or federal criminal or juvenile

proceeding.133

Speedy Trial

The United States Constitution guarantees those accused of a federal crime a

speedy trial;134 the due process clause of the Fourteenth Amendment makes the right

binding upon the states,135 whose constitutions often have a companion provision.136

The constitutional right is reenforced by statute and rule in the form of speedy trial

laws in both the state and federal realms.137

133

“Each victim of a crime of violence, and other crimes that Congress may define by

law, shall have the right . . . to be heard, if present, and to submit a written statement at a

public pretrial or trial proceeding to determine . . . an acceptance of a negotiated plea. . . .”

See also, S.J.Res. 44 (105th Cong.) §1. The Committee Report emphasized that the right did

not embody the right to participate in plea negotiations, S.Rept. 105-409 at 27-8 (“As the

language makes clear, the right involves being heard when the court holds its hearing on

whether to accept a plea. Thus, victims do not have the right to be heard by prosecutors and

defense attorneys negotiating a deal”).

134

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial. . . . U.S.Const. Amend. VI.

135

Klopfer v. North Carolina, 386 U.S. 213 (1967).

136

ALA.CONST. art.I, §6; ALASKA CONST. art.I, §11; ARIZ.CONST. art.2, §24;

ARK.CONST. art.2, §10; CAL.CONST. art.1, §15; COLO.CONST. art.II, §16; CONN. CONST.

art.I, §8; DEL.CONST. art.I, §7; FLA.CONST. art.1, §16(a); GA.CONST. art.I, §1 ¶11(a);

HAW.CONST. art.I, §14; IDAHO CONST. art.I, §13; ILL.CONST. art.1, §8; IND.CONST. art.1,

§12; IOWA CONST. art.1, §10; KAN.BILL OF RTS. §10; KY. BILL OF RTS. §11; LA.CONST.

art.1, §16; ME.CONST. art.I, §6; MD. DECLARATION OF RTS. art.21; MASS.CONST. pt.1,

art.XI; MICH.CONST. art.1, §20; MINN.CONST. art.1, §6; MISS.C ONST. art.3, §26;

MO.CONST. art.1, §18(a); MONT. CONST. art.II, §24; NEB.CONST. art.1, §11; N.J.CONST.

art.I, ¶10; N.MEX.CONST. art.II, §14; N.D.CONST. art.I, §12; OHIO CONST. art.I, §10;

OKLA.CONST. art.2, §20; PA.CONST. art.1, §9; R.I.CONST. art.1, §10; S.C.CONST. art.I, §14;

S.D. CONST. art.VI, §7; TENN. CONST. art.1, §9; TEX.CONST. art.1, §10; UTAH CONST. art.I,

§12; VT.CONST. ch.I, art.10; VA.CONST. art.I, §8; WASH.CONST. art.1, §22; W.VA.CONST.

art.3, §14; WIS.CONST. art.1, §7; WYO.CONST. art.1, §10.

137

State: ALA.R.CRIM.P. 8; ALASKA R.CRIM.P. 45; ARIZ.R.CRIM.P. 8.1 to 8.7;

ARK.R.CRIM.P. art.VIII; CAL. PENAL CODE §§1381 to 1387.2; COLO.REV.STAT. §18-1-405;

CONN.SUPER.CT.R. §§956B to 956F; DEL.SUPER.CT.CRIM.R. 48 (b); FLA.R.CRIM.P. 3.191;

GA.CODE ANN. §§17-7-170 to 17-7-171; HAW.R. PENAL PRO. 48; IDAHO CODE §§19-3501

to 3506; ILL.COMP.STAT.ANN. ch.725 §5/103-5; IND.R.CRIM.P. 4; IOWA CODE ANN. §813.2,

R.27; KAN.STAT.ANN. §22-3402; LA. CODE CRIM.PRO. arts. 578 to 583; ME.R.CRIM.P.

48(b); MD.CODE ANN. art. 27, §591; MASS.R.CRIM.P. 36; MICH.R.CRIM.P. 6.004;

MINN.R.CRIM.P. 11.10; MISS. CODE ANN. §99-17-1; MO.ANN. STAT. §545.780; NEB.

REV.STAT. §§29-1205 to 29-1209; NEV.REV.STAT. §178.556; N.J.R.CRIM.P. 3:25-3;

N.M.R.CRIM.P. 5-604; N.Y. CRIM.PRO.LAW §§30.10 to 30.30; N.C.GEN.STAT. §15A-701

to 704; N.D.R.CRIM. PRO. 48(b); OHIO REV.CODE ANN. §§2945.71 to 73; OHIO.R.CRIM.P.

48(b); OKLA. STAT.ANN. tit.22 §§811 to 817; ORE.REV.STAT. §§135.747 to 765;

PA.R.CRIM.P. 1100; R.I.GEN.LAWS §12-13-7; S.C.CODE ANN. §17-23-90; S.D.COD.LAWS

CRS-39

“Ironically, however, the defendant is often the only person involved in a criminal

proceeding without an interest in a prompt trial. Delay often works to the defendant’s

advantage. Witnesses may become unavailable, their memories may fade, evidence

may be lost, changes in the law may be beneficial, or the case may simply receive a

lower priority with the passage of time.”138

Until recently, victims had no comparable rights, although their advocates

contended they had a very real interest in prompt disposition. Some victims sought to

put a traumatic episode behind them; some wanted to see justice done quickly; some

hoped simply to end the trail of inconveniences and hardship that all too often fell to

their lot as witnesses.139 Or so they were portrayed.

Not everyone accepted this picture, or more precisely not everyone agreed that

the picture as portrayed was complete.140

ANN. §23A-44-3 to 23A-44-5.1; TENN.R.CRIM.P. 48(b); TEX.CRIM.PRO.CODE ANN.

arts.32A.01 to 32A.02; UTAH R.CRIM.P. 25; VT.R. CRIM.P. 48(b); VT.S.CT.ADMIN. ORD.

5; VA.CODE ANN. §§19.2-241 to 19.2-243; WASH.SUPER.CT.R.CRIM. 3.3; W.VA.CODE §623-1; WIS.STAT.ANN. §971.10; WYO. R.CRIM.P. 48(b).

Federal: 18 U.S.C. 3161-3174.

138

Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s

Victims’ Rights Amendment, 1994 UTAH LAW REVIEW 1373, 1402.

139

See e.g., Kelly, Victims’ Perceptions of Criminal Justice, 11 PEPPERDINE LAW

REVIEW 15, 19-20 (1984)(“Postponements were particularly difficult to tolerate. Studies

show that witnesses’ opinions of the court deteriorate as the number of postponements

increases. Sixth percent of the victims interviewed had their court date postponed at least

once. Delay in court hinders the victim’s recovery. As one woman stated: `Your life is on

hold until it’s over.’ Victims believed continuances were granted with little consideration of

their feelings. Additionally, decisions on case dispositions and sentencing were usually made

regardless of victims’ interest. It is these imbalances that victims seek to correct”).

140

Henderson, The Wrongs of Victim’s Rights, 37 STANFORD LAW REVIEW 937, 97477 (1985)(“A second major victim’s rights proposal gives victims a `right’ to oppose

continuances. Victim’s rights advocates frequently blame defense lawyers for obtaining

continuances that unduly prolong the agony of the crime victim by rendering it impossible for

victims `to put their experience behind them.’ Proponents of the crime control model view socalled stalling tactics of defense attorneys to be an overwhelming block to both efficiency and

swift and sure punishment, two hallmarks of this model.

“While defense abuse of continuances occurs, the development of both the prosecution

and the defense in a serious case can, and does, take time. Investigation, forensic tests,

interviews, and visits to crime scenes, among other things, are often time-consuming. And in

many cases, motions must be researched, prepared, and argued. Although many of those

accused of a crime turn out to be guilty, investigation and preparation in even the most

seemingly impossible cases occasionally do demonstrate that the accused is in fact innocent.

Moreover, rushing to a judgment because of presumption of guilt serves neither the victim nor

society, particularly if the real culprit remains at large.

“Victims are likely to want a psychological `resolution’ of the matter, but this kind of

resolution does not ultimately depend on the outcome of the criminal case. It is simplistic to

assert that the rituals of condemnation will erase so profound an experience for an individual.

Continuances and delays may cause a victim to relive the event, but a victim is likely to relive

portions of the event whether or not there is a delay. Issues raised by victimization do not

CRS-40

Most of the states have since enacted statutory or constitutional provisions

establishing a victim’s right to “prompt” or “timely” disposition of the case in one form

or another.141 Many have also made efforts to minimize the adverse impact of the

delays that do occur by either providing for employer intercession services142 and/or

resolve themselves quickly: A reintegration and understanding of such questions as mortality,

meaning, and responsibility take time. Therefore, delay may be of great benefit to a victim’s

psychological state, and time is necessary to heal the psychic wounds created by victimization.

Only for those victims who completely deny or repress their experience is a delay likely to be

traumatizing, because in having to recover the experience, they will be without defenses or

understanding.

“Sometimes a delay enables victims to be better prepared for the evidence that will be

introduced at trial. . . . Endless delays and confusion can harm victims, but rushing towards

a conclusion can be equally harmful. Temporal distance from the event is important to

healing, and treating the victim with respect may ultimately benefit the victim more than rapid

process”).

141

LA.REV.STAT.ANN. §46:1844 [J.] (“The victim shall have the right to a speedy

disposition and prompt and final conclusion of the case after conviction and sentencing”).

N.H.REV.STAT.ANN. §21-M:8-k (“To the extent that they can be reasonably guaranteed

by the courts and by law enforcement and correctional authorities, and are not inconsistent

with the constitutional or statutory rights of the accused, crime victims are entitled to the

following rights . . . (g) the right to have inconveniences associated with participation in the

criminal justice process minimized”).

UTAH CODE ANN. §77-38-7 (“(1) In determining a date for any criminal trial or other

important criminal or juvenile justice hearing, the court shall consider the interests of the

victim of a crime to a speedy resolution of the charges under the same standards that govern

a defendant’s or minor’s right to speedy trial. (2) The victim of a crime has the right to a

speedy disposition of the charges free from unwarranted delay caused by or at the behest of

the defendant or minor and to prompt and final conclusion of the case after the disposition or

conviction and sentence, including prompt and final conclusion of all collateral attacks on

dispositions or criminal judgments. (3)(a) In ruling on any motion by a defendant or minor

to continue a previously established trial or other important criminal or juvenile justice

hearing, the court shall inquire into the circumstances requiring the delay and consider the

interests of the victim of a crime to a speedy disposition of the case. (b) If a continuance is

granted, the court shall enter in the record the specific reason for the continuance and the

procedures that have been taken to avoid further delays”). See Appendix XII for citations and

capsulized descriptions of other examples.

142

ARK.CODE ANN. §16-21-106 (“(a) The several prosecuting attorneys and deputy

prosecuting attorneys may provide the following services to victims of crimes and witnesses

of crimes and the family members of all homicide victims, whether or not they are witnesses

in criminal proceedings: . . . (7) Intercede with such persons’ employers to assure that the

employers cooperate with the criminal justice process in order to minimize loss of pay and

other benefits resulting from court appearances”).

MONT.CODE ANN. §46-24-205(“(1) The law enforcement agency or prosecuting

attorney in a criminal case shall assist a victim or witness who requests assistance in

informing an employer that the need for victim and witness cooperation in the prosection of

the case may necessitate absence of the victim or witness from the place of employment. (2)

A law enforcement agency or prosecuting attorney shall assist a victim or witness who, as a

direct result of a crime or because of cooperation with the law enforcement agency or

prosecuting attorney, is subjected to serious financial strain. The agency or prosecuting

attorney shall assist the victim or witness by explaining to creditors the reason for the serious

CRS-41

by prohibiting employers from penalizing victim/witnesses for attending court

proceedings.143 And most call for the prompt return of a victim’s property, taken for

evidentiary purposes, as soon as it is no longer needed.144

financial strain”). See Appendix XIII for capsule summaries of other examples.

143

OHIO REV.CODE ANN. §2930.18 (“No employer of a victim shall discharge,

discipline, or otherwise retaliate against the victim, a member of the victim’s family, or a

victim’s representative for participating, at the prosecutor’s request, in preparation for a

criminal or delinquency proceeding or for attendance, pursuant to a subpoena at a criminal

or delinquency proceeding if the attendant is reasonably necessary to protect the interests of

the victim. . . . An employer who knowingly violates this section is in contempt of court”).

N.D.CENT.CODE §§27-09.1-17 (“1. An employer may not deprive an employee of

employment, lay off, penalize, threaten, or otherwise coerce an employee with respect thereto,

because the employee receives a summons or subpoena, responds thereto, serves as a juror or

witness, or attends court for jury service or to give testimony pursuant to a subpoena. 2. Any

employer who violates subsection 1 is guilty of a class B misdemeanor. 3. If an employer

discharges an employee in violation of subsection 1, the employee within ninety days may

bring a civil action for recovery of wages lost as a result of the violation and for an order

requiring the reinstatement of the employee. Damages recoverable may not exceed lost wages

for six weeks. If the employee prevails, the employee must be allowed a reasonable attorney’s

fee fixed by the court”).

WIS.STAT.ANN. §103.87 (“No employer may discharge an employe because the employe

is subpoenaed to testify in an action or proceeding pertaining to a crime or pursuant to ch. 48

or 938. On or before the first business day after the receipt of a subpoena to testify, the

employe shall give the employer notice if he or she will have to be absent from employment

because he or she has been subpoenaed to testify in an action or proceeding pertaining to a

crime or pursuant to ch.48 or 938. If a person is subpoenaed to testify in an action or

proceeding as a result of a crime, as defined in s. 950.02(1m), against the person’s employer

or an incident involving the person during the course of his or her employment, the employer

shall not decrease or withhold the employe’s pay for any time lost resulting from compliance

with the subpoena. An employer who violates this section may be fined not more than $200

and may be required to make full restitution to the aggrieved employe, including reinstatement

and back pay. Except as provided in this section, restitution shall be in accordance with s.

973.20").

See also, ALA.CODE §15-23-81; ALASKA STAT. §12.61.017; CONN.GEN.STAT. ANN.

§54-85b; DEL.CODE ANN. tit.11 §9409; FLA.STAT.ANN. §90.52; ILL.COMP . LAWS ANN.

ch.725 §5/115-18; IOWA CODE ANN. §915.23; MD.CTS.& JUD.PROC. CODE ANN. §9-205;

MICH.C OMP.LAWS ANN. §§780.762, 780.822; MINN.S TAT.ANN. §611A.036;

MO.ANN.STAT. §595.209; MONT.CODE ANN. §46-24-205; NEV.REV. STAT. §50.070;

N.Y.PENAL LAW §215.14; N.D.CENT.CODE §27-09.1-17; VT.STAT. ANN. tit.13 §5313;

VA.CODE ANN. §18.2-465.1; WYO.STAT. §1-40-209.

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WASH.REV.CODE ANN. §7.69.030(7)(“There shall be a reasonable effort made to

ensure that victims, survivors of victims, and witnesses of crimes have the following rights:

. . . (7) To have any stolen or other personal property expeditiously returned by law

enforcement agencies or the superior court when no longer needed as evidence. When

feasible, all such property, except weapons, currency, contraband, property subject to

evidentiary analysis, and property of which ownership is disputed, shall be photographed and

returned to the owner within ten days of being taken”).

N.Y.EXEC.LAW §642 (“3. Law enforcement agencies and district attorneys shall

promptly return property held for evidentiary purposes unless there is a compelling reason for

retaining it relating to proof at trial”). See also Appendix XIV.

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The federal statutory victims’ bill of rights, 42 U.S.C. 10606, does not include an

employment, property return, or a speedy trial provision, but Congress has encouraged

the states to include a right to a reasonably expeditious trial among the rights they

afford victims.145

Past proposals like S.J.Res. 6 and S.J.Res. 44 have not refered to employment

or property rights but have entitled victims to “a final disposition of the proceedings

relating to the crime free from unreasonable delay.” In the absence of further

development either in its legislative history or in implementing legislation, courts called

upon to construe such a provision might well find guidance in the Supreme Court’s

identification of the factors to be weighed when testing for unacceptable delay under

the speedy trial and due process clauses: “length of delay, reasons for the delay,

defendant’s assertion of his right, and prejudice to the defendant.”146

Other Pre-Trial Motions & Proceedings

Little focused attention seems to have been given thus far to the role victims and

their interests should play in the sundry pre-trial motions and proceedings (other than

bail or the acceptance of guilty pleas at the end of the plea bargaining process). This

is so even though the prompt disposition and speedy trial formulae appear to anticipate

either victim participation or an increased appreciation of victim concerns in such

proceedings.147

Rule 41(e) of the Federal Rules of Criminal Procedure establishes a procedure for the

return of property seized by federal officials. The rule was originally limited to the recovery

of property unlawfully seized, 3 WRIGHT, FEDERAL PRACTICE & PROCEDURE: CRIMINAL

§673 (1982 & 1997 Supp.), but its ancestry notwithstanding it seems at least arguable that

the demands of the victim property return statutes and Rule 41(e) mirror the dictates of the

Fourth Amendment, either standing alone or in conjunction with due process, cf., Davis v.

Gracey, 111 F.3d 1472, 1477 (10th Cir. 1997).

145

42 U.S.C. 10606 nt. (“It is the sense of Congress that the States should make every

effort to adopt the following goals of the Victims of Crime Bill of Rights: . . . (4) Victims of

crime should have the right to a reasonable assurance that the accused will be tried in an

expeditious manner”).

146

Barker v. Wingo, 407 U.S. 514, 530 (1972)(speedy trial); United States v. $8,850,

461 U.S. 555, 564 (due process concerning delays between the seizure of property and the

initiation of in rem forfeiture proceedings); S.Rep.No. 105-409, at 31 (“In determining what

delay is `unreasonable,’ the courts can look to the precedents that exist interpreting a

defendant’s right to a speedy trial”).

147

Eikenberry, Victims of Crime/Victims of Justice, 34 WAYNE LAW REVIEW 29, 40

(1987)(“Decisions on pretrial motions may have a significant impact on the outcome of a case,

and can seriously affect the victim’s participation in the trial. Such decisions should be based

on information that includes the impact on the victim. Decisions on pretrial motions may have

a significant impact on the outcome of a case, and can seriously affect the victim’s

participation in the trial. Such decisions should be based on information that includes the

impact on the victim. Victims may suffer inconvenience and additional psychological trauma

as a result of the court’s decision to continue a trial date or to change venue. Victims

frequently find it difficult to take time off work and pay travel expenses in order to attend the

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Victims in several states may also be able to claim a role in pre-trial motions

practice based on the more general of the right-to-be-heard-in-all-critical-proceedings

provisions.148 Otherwise, victims are probably not entitled to address the court, as a

matter of right, on questions of change of venue, continuances, severance, exclusion

of evidence, etc.149

Right-to-be-heard language, like that found in S.J.Res.6 (105th Cong.) appears

insufficiently elastic to reach pre-trial motions unaided: “Each victim . . . shall have the

right . . . to be heard . . . at a public pretrial or trial proceeding to determine a release

from custody, an acceptance of a negotiated plea, or a sentence; . . . (emphasis

added).” The phraseology does not seem to anticipate victim participation in pre-trial

practice except with respect to questions of bail, plea bargaining or sentencing.150

Congress and the states, might achieve the same result within their respective

jurisdictions however, through the enactment of enforcement legislation to fulfill any

amendment promise of “a final disposition . . . free from unreasonable delay.” If so,

a constitutional conflict might arise should changes of venue, severance or the granting

of other pre-trial motions be grounded in rights that the Constitution now promise the

accused. In the Oklahoma City bombing cases, for example, the change of venue and

severance appear to have been ordered by the court in the interest of assuring the

accused of the right to a trial before an impartial jury. It is unclear whether passage

trial. These proble

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