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

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 13, 2000
- **Citation:** 97-735

## Text

97-735 A

CRS Report for Congress
Received through the CRS Web

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

1

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).
2

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

3

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

4

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).
5

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”).
6

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).
7

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”).
8

See Appendices II and III for a sampling of and citations to state constitutional and
statutory provisions.
9

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”).
10

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.
11

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.
(c) No cause of action or defense
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.
12
13

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.
14

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.
15

Enacted as subtitles IIA and IIC of the Antiterrorism and Effective Death Penalty Act
of 1996, 110 Stat. 1227, 1243.
16

111 Stat. 12 (1997).

17

112 Stat. 3016 (1998).

18

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.
19

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

20

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

21

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

22

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).
23

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).
24

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.”
25

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.
26

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”).
27

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

28

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.”).
29

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”).
30

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).
31

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

32

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”).
33

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)).
34

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.
35

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’”).
36

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”).
37

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

38

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”).
39

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”).
40

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”).
41

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”).
42

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”).
43

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
44

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.
45

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’”).
46

Community Input at Sentencing: Victim’s Right or Victim’s Revenge? 75 BOSTON
UNIVERSITY LAW REVIEW 187 (1995).
47

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

48

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.
49

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]”).
50

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. . .”).
51

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

52

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.
53

E.g., FBI, UNIFORM CRIME REPORTS: 1995, 5 (1996) that classifies murder,
nonnegligent manslaughter, forcible rape, robbery, and aggravated assault as violent crimes.
54

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”).
55

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

CRS-17
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.
56

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”).
57

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).
58

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).
59

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

CRS-18
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”).
60

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”).
61

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”).
62

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

CRS-19

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.
63

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).
64

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”).
65

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”).

CRS-20
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.

66

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”).
67

Pischnotte & Quinn, The Victim and Witness Assistance Program, 39 AIR FORCE
LAW REVIEW 57 (1996).
68

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

69

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.
70

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”).
71

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

72

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. . .”).
73

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”).
74

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”).
75

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
76

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.
77

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.
78

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

79

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).
80

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).
81

See e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989).

82

See, Inbau, Farber, Arnold, PROTECTIVE SECURITY LAW (2d ed. 1996).

83

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.
84

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.).
85

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.
86

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

CRS-26
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).
87

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”).
88

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).
89

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.
90

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).
91

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.
92

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).
93

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.’”).
94

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”).

CRS-28
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
95

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).
96

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
97

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).
98

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.
99

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

CRS-30
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).

CRS-31
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A97-735. Public record. Not legal advice.