# Victims' Rights Amendment: Proposals to Amend the United States Constitution in the 106th Congress

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL30525

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 12, 2000
- **Citation:** RL30525

## Text

Order Code RL30525

CRS Report for Congress
Received through the CRS Web

Victims’ Rights Amendment:
Proposals to Amend the United States
Constitution in the 106th Congress

Updated May 12, 2000

(name redacted)
Senior Specialist
American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT
This is an examination of the S.J.Res. 3 and H.J.Res. 64, 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 victims rights laws.
It appears in abbreviated form as Victims’ Rights Amendments: Overview of
Suggestions to Amend the Constitution, CRS Report 97-736 A (April 13, 2000) and
is a companion to Victims’ Rights Amendment: Background & Issues Associated With
Proposals to Amend the United States Constitution, CRS Report 97-735 A (April 13,
2000).

Victims’ Rights Amendment: Proposals to Amend the United
States Constitution in the 106th Congress
Summary
Thirty-three states have added a victims rights amendment to their state
constitutions. Both House and Senate Judiciary Committees have held hearings on
similar proposals to amend the United States Constitution, in the Senate on S.J.Res.
3 introduced by Senator Kyl for himself and Senator Feinstein and in the House on
H.J.Res. 64 introduced by Representative Chabot. The Senate Committee has
reported out S.J.Res. 3, S.Rept. 106-254, and the Senate debated the measure for two
days in April.
The proposed amendment defines the participation of crime victims in state and
federal official proceedings generated by the crimes committed against them. It gives
them qualified notification, attendance, articulation, and consideration rights.
Victims’ safety must be considered in bail proceedings, victim restitution must be a
consequence of conviction, and victims’ interests must be weighed when the time
tables for official proceedings are set or reset. Victims must be allowed to speak on
questions of bail, plea agreements, sentencing, and pardons. They must be informed
of, and not excluded from, crime-related public proceedings. They must be notified
of escapes and releases and advised of their rights under the amendment.
Arguments put forward in support of an amendment include: (1) the criminal
justice system is badly tilted in favor of criminal defendants and against victims’
interests and a more appropriate balance should be restored; (2) the shabby treatment
afforded victims has chilled their participation in the criminal justice system to the
detriment of all; (3) society has an obligation to compensate victims; (4) 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 (5) existing state and federal law is inadequate and likely to remain
inadequate.
Critics argue to the contrary that: (1) the criminal justice system is not out of
balance; misguided interjection of victim participation threatens to render the process
inaccurate, and unfair; (2) if the mischief possible through a victims’ rights
amendment is avoided, the proposal becomes purely hortatory; the Constitution is no
place for commemorative decorations; (3) the proposals are inconsistent with the
basic notions of federalism; (4) the Senate proposal, limited to violent crimes, is too
narrow; or conversely, the House proposal, applied to all felonies, is too broad; and
(5) the proposals do not clearly preserve the constitutional rights of the accused.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Need for Greater Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Obligations & the Need for Victim Participation . . . . . . . . . . . . . . . . . 6
Inadequacy of Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Need for Uniformity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Constitutional Rights of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Victims of Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Current Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Public Proceedings - Notice and Attendance . . . . . . . . . . . . . . . . . . . 13
Reasonable notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Not to be excluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Public proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Related to the crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Right to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Other Forms of Conditional Release . . . . . . . . . . . . . . . . . . . . . 25
Plea bargains . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Parole Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Pardons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Release or Escape Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Victim Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Notification of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Finality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Legislative Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Preemptive and Amending Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Proceedings Covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Victims’ Rights Amendment: Proposals to
Amend the United States Constitution in the
106th Congress
Introduction
A victims’ rights amendment to the United States Constitution (S.J.Res. 3) was
reported out of the Senate Judiciary Committee on October 4, 1999 without written
report, 145 Cong.Rec. S11879. The Committee subsequently submitted an
accompanying report, S.Rep. 106-254, on April 4, 2000, 146 Cong.Rec. S2106. A
similar resolution (H.J.Res. 64), virtually identical with one exception, was previously
introduced in the House. This is a brief discussion of the content of the resolutions
and of some of the issues they raise.1

Text
Upon two-thirds vote in each House and ratification by three quarters of the
states, the amendment would provide:
SECTION 1.2 A victim of a crime of violence, as these terms may be
defined by law, shall have the rights [Each individual who is a victim of a crime
for which the defendant can be imprisoned for a period longer than one year or
any other crime that involves violence shall have the rights]:
to reasonable notice of, and not to be excluded from, any public
proceedings relating to the crime;
to be heard, if present, and to submit a statement at all such proceedings to
determine a conditional release from custody, an acceptance of a negotiated
plea, or a sentence;

1

For a more extensive background discussion see, Doyle, VICTIMS’ RIGHTS AMENDMENT:
BACKGROUND & ISSUES ASSOCIATED WITH PROPOSALS TO AMEND THE UNITED STATES
CONSTITUTION, CRS REPORT 97-735 A (April 2000) from which some of this report has been
borrowed; 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
Report RS20404 (Nov. 22, 1999).
2

S.J.Res. 3 in italics; H.J.Res. 64 in brackets and underlined, where they differ; throughout
references to S.J.Res. 3 are to the resolution as amended and reported out of Committee unless
otherwise noted.

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to reasonable notice of and an opportunity to submit a statement
concerning any proposed pardon or commutation of a sentence;
to the foregoing rights at a parole proceeding that is not public, to the
extent those rights are afforded to the convicted offender;3
to reasonable notice of a release or escape from custody relating to the
crime;
to consideration of the interest of the victim that any trial be free from
unreasonable delay;
to an order of restitution from the convicted offender;
to consideration for the safety of the victim in determining any conditional
release from custody relating to the crime; and
to reasonable notice of the rights established by this article.
SECTION 2. Only the victim or the victim’s lawful representative shall have
standing to assert the rights established by this article. Nothing in this article shall
provide grounds to stay or continue any trial, reopen any proceeding or
invalidate any ruling, except with respect to conditional release or restitution or
to provide rights guaranteed by this article in future proceedings, without staying
or continuing a trial. Nothing in this article shall give rise to or authorize the
creation of a claim for damages against the United States, a State, a political
subdivision, or a public officer or employee.
SECTION 3. The Congress shall have the power to enforce this article by
appropriate legislation. Exceptions to the rights established by this article may
be created only when necessary to achieve a compelling interest.
SECTION 4. This article shall take effect on the 180th day after the ratification
of this article. The right to an order of restitution established by this article shall
not apply to crimes committed before the effective date of this article.
SECTION 5. The rights and immunities established by this article shall apply in
Federal and State proceedings, including military proceedings to the extent that
the Congress may provide by law, juvenile justice proceedings, and proceedings
in the District of Columbia and any commonwealth, territory, or possession of
the United States.

3

H.J.Res. 64 locates this parole rights clause here after the pardon or commutation
allocution clause; S.J.Res. 3 places it immediately after the sentencing allocution clause but
before the pardon or sentence allocution clause.

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Background
Senator Kyl introduced S.J.Res. 3 on January 19, 1999, for himself and Senators
Feinstein, Biden, Grassley, Inouye, DeWine, Landrieu, Snowe, Lieberman, Mack,
Cleland, Coverdell, Smith of New Hampshire, Shelby, Hutchinson, Gregg, Thomas,
Craig, Grams, Inhofe, Thurmond, Warner, Torricelli, Bryan, Hagel, Campbell,
Murkowski, Bunning, Voinovich, Helms, Frist, Gram, Lott, and Hutchison.
Representative Chabot introduced H.J.Res. 64 on August 4, 1999 for himself and
Representatives Ros-Lehtinen, Salmon, Barcia, Sessions, Brady of Texas, Pryce,
LoBiondo, Bono, Shadegg, Smith of New Jersey, Horn, Cunningham, Ingham, Green
of Wisconsin, Latourette, LaHood, Granger, Gallegly, Gekas, DeLay, Young of
Alaska, Moran of Virginia, Foley, and Mryick.
Proposals had been offered in each body in the two earlier Congresses.4
Hearings have been held in all three Congresses,5 and a resolution reported out in the
Senate late in the 105th and in this Congress.6
Thirty-three states have added victims’ rights amendments of varying stripes to
their state constitutions.7 The remaining states and the federal government have
enacted similarly individualistic general victims’ rights statutes.8
4

104th Congress: S.J.Res. 52, S.J.Res. 65, H.J.Res. 173, and H.J.Res. 173; 105th Congress:
S.J.Res. 6, S.J.Res. 44, H.J.Res. 71, and H.J.Res. 129.
5

A Proposed Constitutional Amendment to Establish a Bill of Rights for Crime Victims:
Hearing Before the Senate Comm. on the Judiciary (Senate Hearing I), 104th Cong., 2d
Sess. (1996); Proposals to Provide Rights to Victims of Crime: Hearing Before the House
Comm. on the Judiciary (House Hearing II), 105th Cong., 1st Sess. (1997); A Proposed
Constitutional Amendment to Protect Victims of Crime: Hearing Before the Senate Comm.
on the Judiciary (Senate Hearing II), 105th Cong., 1st Sess. (1997); 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
(House Hearing III) 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).
6

S.Rep.No.105-409 (1998); S.J.Res. 3 was reported out without a printed report, 145
Cong.Rec. S11879 (daily ed. Oct. 4, 1999).
7

ALA.CONST., Amend. 557; ALASKA CONST. art.I, §24; ARIZ.CONST. art.2, §2.1;
CAL.CONST. art.I, §28; COLO.CONST. art.II, §16a; CONN. CONST. art.I, §8[b.]; FLA.CONST.
art.I, §16(b); IDAHO CONST. art.I, §22; ILL. CONST. art.I, §8.1; IND.CONST. art.1, §13;
LA.CONST. art.1, §25; KAN.CONST. art.15, §15; MD.D.OF RTS. art.47; MICH.CONST. art.I,
§24; MISS. CONST. art. 3,§26A; MO.CONST. art.I, §32; MONT . CONST. Art.2, §28;
NEB.CONST. Art.1, §28; NEV.CONST. art.1, §8; N.J. CONST. art.I, §22; N.MEX. CONST.
art.II, §24; N.C. CONST. art.I, §37; OHIO CONST. art.I, §10a; OKLA.CONST. art.II, §34; ORE.
CONST. art. I, §24; R.I.CONST. art.I, §23; S.C.CONST. art.I, §24; TENN.CONST. art.I, §35;
TEX.CONST. art.I, §30; UTAH CONST. art.I, §28; VA.CONST. art.I, §8-A; WASH.CONST. art.I,
§35; WIS. CONST. art.I, §9m.
8

ARK.CODE ANN. §§16-90-1101 to 16-90-1115; DEL.CODE ANN. tit.11 §§9401 to 9419;
GA.CODE ANN. §§ 17-17-1 to 17-17-165; HAW.REV.STAT. §§801D-1 to 801D-7; IOWA

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Purpose
Why pass a victims’ rights amendment to the United States Constitution?
Proponents have historically offered several reasons:
• 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.9

The Need for Greater Balance
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).
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

CODE ANN. §§915.1 to 915.100; KY.REV.STAT.ANN. §§421.500 to 421.550;
ME.REV.STAT.ANN. tit.17-A §§1171 to 1175; MASS.GEN.LAWS ANN. ch.258B §§1 to 13;
MINN.STAT.ANN. §§611A.01 to 611A.90; N.H.REV.STAT.ANN. §21-M:8-k; N.Y.EXEC.LAW
§§640 to 649; N.D.CENT.CODE §§12.1-34-01 to 12.1-34-05; PA.STAT.ANN. tit.18 §11.201;
S.D.COD.LAWS ANN. §§23A-28C-1 to 23A-28C-6; VT.STAT.ANN. tit.13 §§5301 to 5321;
W.VA.CODE §§61-11A-1 to 61-11A-8; WYO.STAT. §§1-40-201 to 1-40-210.
The states with constitutional amendments generally have comparable statutes, and
virtually every state has victims’ rights accommodations scattered throughout their codes.
9

145 Cong.Rec. S707-S708 (remarks of Sen. Kyl), S709-S710 (remarks of Sen. Feinstein)
(daily ed. Jan. 19, 1999); see also, S.Rep.No. 106-254 at 2 (“This, then is the purpose of the
Crime Victims’ Rights Amendment: That we make it part of our highest law to honor the
humanity and dignity of crime victims within our borders who entrust the Government to seek
justice for them”); for justifications for a victims’ rights amendment generally see, Hudson,
The Crime Victim and the Criminal Justice System: Time for a Change, 11 PEPPERDINE LAW
REVIEW 23, 29-33 (1984).

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movement.10 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.11
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.12
They may also point out that, 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.13
The more common response to the balance argument, however, has been that the
balance argument “represents a fundamental misunderstanding of the nature and
purpose of individual constitutional rights.”14 In the same vein, one of the motives
critics attribute to victims’ rights advocates is a rejection of a basic premise of 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”,

10

E.g.. House Hearing III (prepared statement of Rep. Chabot)(“Currently, the U.S.
Constitution is completely silent on victims’ rights, while it speaks volumes as to the rights
of the accused”)
11

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.
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”); see also, 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); Young, A Constitutional Amendment for Victims of Crime:
A Victim’s Perspective, 34 WAYNE LAW REVIEW 51, 64-65 (1987); Eikenberry, Victims of
Crime/Victims of Justice, 34 WAYNE LAW REVIEW 29, 48 (1987).
12

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 unlicenced handgun following a subway
confrontation with muggers).
13

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.
14

Dolliver, Victims’ Rights Constitutional Amendment: A Bad Idea Whose Time Should
Not Come, 34 WAYNE LAW REVIEW 87, 91 (1987); Cardenas, The Crime Victim in the
Prosecutorial Process, 9 HARVARD JOURNAL OF LAW AND PUBLIC POLICY 357, 381 (1986).

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“accused”, “defendant”, and “guilty” synonymous terms. No process is too quick; no
punishment sufficiently severe; acquittals are an injustice.15
The balance argument has special relevancy in the context of an amendment to
the United States Constitution. No state victims’ rights constitutional amendment or
state or federal statute may supersede 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.16 Unless the proposed rights are made subordinate 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 adjusted.

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
the process.17 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 issue
is not as much the identification of the problem as 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.18 Opponents find present law
15

E.g., House Hearing, 86-7; Abrahamson, Redefining Roles: The Victims’ Rights
Movement, 1985 UTAH LAW REVIEW 517.

16

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).
17

The Victim’s Veto: A Way to Increase Victim Impact on Criminal Case Dispositions, 77
CALIFORNIA LAW REVIEW 417 (1989); Goldstein, Defining the Role of the Victim in Criminal
Prosecution, 52 MISSISSIPPI LAW JOURNAL 515, 518 (1982).
18

House Hearing III (prepared statement of Rep. Chabot)(“You might then ask why a
constitutional amendment is necessary? The answer is simple: a clear pattern has emerged in
courthouses around the country that judges and prosecutors are reluctant to apply or enforce
existing laws when they are routinely challenged by criminal defendants”); id. (prepared
statement of Andrea Rehkamp, Mothers Against Drunk Driving)(“As long as defendants’
rights are specified in the United States Constitution and victim rights are specified in stateby-state statutes, the victims’ role in the justice system will always be that of second-class
citizen”); see also, S.Rep.No. 106-254 at 8-9; Young, A Constitutional Amendment for
Victims of Crime: The Victims’ Perspective, 34 WAYNE LAW REVIEW 51, 52 (1987); 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); 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.

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workable and fear an amendment would make matters worse.19 The specifics of the
proposal 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.20 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.
Critics argue that a victims’ rights amendment 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.21
Uniformity obviously would require compliance to a single standard imposed by
the amendment to the United States Constitution. Some victims’ advocates, however,
see the amendment as providing a constitutional minimum beyond which the states
remain free to establish more exacting victims’ rights.22

1996); Senate Hearing II at 12 (prepared statement of Prof. Laurence H.Tribe, Harvard
University Law School).
19

House Hearing at 143-45 (prepared statement of Ellen Greenless, President National
Legal Aid and Defender Association); Senate Hearing II at 99 (prepared statement of Robert
J. Humphreys, President of the Virginia Association of Commonwealth’s Attorneys); Senate
Hearing II at 162-63 (prepared statement of the National Clearinghouse for the Defense of
Battered Women).
20

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”).
21

S.Rep.No.105-409 at 48 (minority views of Sen. Thompson); cf., Senate Hearing II at 87
(testimony of James E. Doyle, Wisconsin Attorney General).
22

Senate Hearing II at 64; House Hearing at 61. The Senate Report supports this view,
S.Rep.No. 106-254 at 29 (“In other words, the amendment sets a national ‘floor’ for the
protecting of victims rights, not any sort of `ceiling.’ Legislatures, including Congress, are
certainly free to give statutory rights to all victims of crime, and the amendment will in all
likelihood be an occasion for victims’ statutes to be re-examined and, in some cases,
expanded”).

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Constitutional Rights of Victims
Overview
The proposed amendment defines the participation of crime victims in state and
federal official proceedings generated by the crimes committed against them. It gives
them qualified notification, attendance, articulation, and consideration rights.
Victims’ safety must be considered in bail proceedings, victim restitution must be a
consequence of conviction, and victims’ interests must be weighed when the time
tables for official proceedings are set or reset. Victims must be allowed to speak on
questions of bail, plea agreements, sentencing, and pardons. They must be informed
of, and not excluded from, crime-related public proceedings. They must be notified
of escapes and releases and advised of their rights under the amendment.

Victims of Crime
The scope of a crime victims’ rights amendment begins with who it considers a
victim and what it considers a crime. In common parlance, the concept of victim 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 bystander
and participant; the middleman in a pyramid scheme,23 the defendant who is acquitted
or whose conviction is overturned,24 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, or an 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

23

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,
United States v. Gold Unlimited, Inc., 177 F.3d 472, 475 (6th Cir. 1999).
24

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, strongly 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’”).

CRS-9
be listed among the victims.25 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.26 The governmental entities that must bear the
cost of investigating and prosecuting crime could legitimately be consider its victims.
Finally, the concept of criminal law is based upon the premise that a criminal act is a
transgression against the social order, against the commonweal, the body politic; a
crime is a wrong committed against all of us.

Contemporary Practices
Most state constitutional amendments do not define the classes of crime victims
for whom they establish rights.27 Statutory definitions are diverse and more than a
few jurisdictions recognize different definitions for different purposes. The corporate
victim of a crime, for example, may be entitled to restitution but not to notice of the
release of an offender.28 Under some victims’ rights statutes, “victims” may be limited
to the victims of felonies or of specific violent crimes.29 In several instances, states
have modified their definitions of “victim” to exclude certain classes of victims, e.g.,
prisoners, codefendants, and the like.30
Under federal law, only victims of violent crimes or of sexual abuse have the
right to make a victim impact statement at sentencing, F.R.Crim.P. 32(c)(3) (E), but
anyone who incurs direct harm as a consequence of a federal crime is considered a
victim for purposes of restitution, trial attendance, and victim notification rights, 18
U.S.C. 3663(a)(2), 3510; 42 U.S.C. 10607((e)(2).

25

Community Input at Sentencing: Victim’s Right or Victim’s Revenge? 75 BOSTON
UNIVERSITY LAW REVIEW 187 (1995).
26

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”).
27

The majority create rights for victims “as defined by law”, e.g., ALA.CONST. Amend.No.
557; CONN.CONST. Art.1, §8[b], but see, N.J.CONST. Art.1, ¶22; N.MEX.CONST. Art.II, §24.
28

E.g., MINN.STAT.ANN. §611A.01(“`Victim’ means a natural person who incurs loss or
harm as a result of a crime . . . and for purposes of [restitution] also includes a corporation
that incurs loss or harm as a result of crime . . .”).
29

E.g., W.VA.CODE §61-11A-2 (“`victim’ means a person who is a victim of a felony);
S.D.COD.LAWS ANN. §23A-28C-4 (“victim mean any person being the direct subject of . .
. a crime of violence, simple assault [in a domestic context, or drunk driving]”);
KY.REV.STAT.ANN. §421.500 (“`victim’ means an individual who suffers . . . harm as a
result of the commission of a crime classified as stalking, unlawful imprisonment, use of a
minor in a sexual performance . . .”).
30

E.g., ILL.COMP.LAWS ANN. ch. 725, §130/3; IND.CODE ANN. §35-40-4-8.

CRS-10

Past Proposals
The drafters of past victims’ rights amendments to the United States Constitution
have opted for one of three alternatives: (1) crimes of violence;31 (2) felonies and
crimes of violence;32 (3) crimes of violence and such other crimes as should be
legislatively designated.33
The Senate Judiciary Committee Report accompanying S.J.Res.44 in the 105th
Congress anticipated that Congress and the state legislatures would further define the
terms “victim” and “crime of violence” and observed that those terms might include
the victims of potentially violent crimes such as burglary, solicitation to commit a
crime of violence, unlawful display of a firearm, or stalking.34

Current Proposals
A victim of a crime of violence, as these terms may be defined by law, shall
have the rights to . . . (S.J.Res. 3)
Each individual who is a victim of a crime for which the defendant can be
imprisoned for a period longer than one year or any other crime that involves
violence shall have the rights to. . . (H.J.Res. 64)
The Senate Resolution, like several of the state victims’ rights amendments,
covers victims as that “term[] may be defined by law,” that is, it leaves the definition
of “victim” for legislative and judicial development. The amendment empowers
Congress to enact implementing legislation, §3. The Senate Judiciary Committee
report asserts that the power to define the class of victims to whom the amendment
would apply was by implication to be shared by Congress and the states.35 Under this

31

S.J.Res. 44 (105th Cong.)(“a victim of a crime of violence as those terms may be defined
by law”); H.J.Res. 129 (105th Cong.)(“a crime of violence”).
32

H.J.Res. 71 (105th Cong.)(“victim of a crime for which the defendant can be imprisoned
for a period longer than one year or any other crime that involves violence”); H.J.Res. 173
(104th Cong.)(substantively the same).
33

S.J.Res. 6 (105th Cong.)(“victim of a crime of violence, and other crimes that Congress
may define by law”); S.J.Res. 52 (104th Cong.)(“victim . . . of a crime of violence and other
crimes as may be defined by [state or federal] law”); H.J.Res. 174 (104th Cong.)(same).
34

S.Rep.No. 105-409 at 24. At least one member expressed concern that the “crime of
violence” classification might prove both too narrow and too inclusive, S.Rep.No. 105-409
at 42 (additional views of Sen. Hatch)(using the elderly victims of an impoverishing fraud and
the participants in a barroom fracas as examples).
35

S.Rep.No.106-254 at 28 (“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’”).

CRS-11
construction, the states would be permitted to paint the scope of the amendment as
broadly or as narrowly as they chose, subject to preemptive federal legislation.36
The House Resolution’s posture is much the same. It does not use the
phrase “as defined by law,” but the same result is implicit in its failure to provide a
definition and in its grant of implementing authority to Congress. Its distinctive
language and origin in the House, however, may remove it from the shadow of the
Senate Report. Moreover, its use of the phrase “Each individual who is a victim of
a crime” (as opposed to the Senate’s “A victim of a crime”) may limit the scope of the
House Resolution to victims who are human beings.37
The House Resolution’s definition of “crime” seems at once more specific and
more sweeping than that of the Senate Resolution. The Senate Resolution reaches
only those who are the victims of “crimes of violence.” The term admits to more than
few plausible definitions. A “crime of violence” might include only those crimes
during which a victim sustained physical injury — murder, manslaughter, rape, assault
and battery.38 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, kidnaping,
arson, burglary, extortion, conspiracy, attempt, solicitation, and facilitation.39 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.40 Finally, a

36

S.Rep.No.106-254 at 41 (“This provision is similar to existing language found in section
5 of the 14th amendment to the Constitution. This provision will be interpreted in similar
fashion to allow Congress to `enforce’ the rights, that is, to insure that the rights conveyed by
the amendment are in fact respected. At the same time, consistent with the plain language of
the provision, 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 `victim’ of crime and `crimes of
violence’”).
37

But see, Clinton v. New York, 524 U.S. 417, 428-29 (1998)(noting that although
“individual” ordinarily refers to natural persons, in the context of the statute before it
Congress intended a broader meaning).
38

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

39

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”).
40

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

CRS-12
“crime of violence” might 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.41 Using much the
same language as its predecessor, the Senate Report opines that include any offense
which in fact involves an act of violence may properly be considered a crime of
violence, i.e., any crime where “the victim is physically injured, is threatened with
physical injury, or reasonably believes he or she is being physically threatened by
criminal activity of the defendant,” S.Rept. 106-254 at 29.
Whatever the expanse of “crimes of violence,” the coverage of the House
Resolution is more inclusive, for it embraces all felonies (“a crime for which the
defendant can be imprisoned for a period longer than one year”) as well as any
nonfelony that “that involves violence.” Thus for example, the House version would
cover victims of most federal fraud laws (and their state equivalents), while its Senate
counterpart almost assuredly would not.42
Both proposals further confine the amendment’s boundaries by defining the
proceedings to which its rights attach. In both cases, “The rights and immunities
established by this article shall apply in Federal and State proceedings, including

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
children might reasonably be considered crimes of violence, S.Rept. 105-409, at 24.
41

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 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”).
42

S.Rep.No. 106-254 at 29 (“not all crimes will be violence crimes covered by the
amendment. For example, the amendment does not confer rights on victims of larceny, fraud,
and other similar offenses”); cf., S.Rep.No.105-409, at 41-2 (additional views of Sen. Hatch
expressing discomfort that deserving victims of devastating nonviolent crimes were not
covered the language of S.J.Res. 44); the Justice Department expressed the concern that the
House language would have an adverse law enforcement impact and “could inhibit the
initiation of such prosecutions involving wide-scale harms, such as certain frauds or
environmental violations,” House Hearings III (prepared statement of Assistant Attorney
General Eleanor D. Acheson); the Judicial Conference of the United States voiced comparable
fears over the potential impact of the House language on the federal courts, House Hearings
III (prepared statement of Judge Emmet G. Sullivan).

CRS-13
military proceedings to the extent that the Congress may provide by law, juvenile
justice proceedings, and proceedings in the District of Columbia and any
commonwealth, territory, or possession of the United States,” §5. As a consequence,
the amendment would not apply in tribal courts, whose criminal jurisdiction is
admittedly limited. Perhaps of greater significance, it would apply in a court martial
context only to the extent Congress subsequently provides by statute.43

Public Proceedings - Notice and Attendance
reasonable notice of, and not to be excluded from, any public proceedings
relating to the crime
The amendment proposals afford victims a right to notice of and to attend
relevant proceedings subject to four facial limitations:
- victims are only entitled to reasonable notice;
- they are entitled not be excluded, as opposed to having an absolute right to
attend;
- the notice and attendance rights apply only with respect to public proceedings;
and
- the rights attach to those proceedings related to the crime but only those
related to the crime.

43

Military tribunals already have a victims’ rights regulatory requirement in place,
Pischnotte & Quinn, The Victim and Witness Assistance Program, 39 AIR FORCE LAW
REVIEW 57 (1996), but not all victims’ rights advocates are impressed with its effectiveness,
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”); see also, 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 than 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”).
The Senate Judiciary Committee Report explains with respect to similar language in an
earlier proposal that the extent of the application was left to Congress because “of the
complicated nature of military justice proceedings, including proceedings held in times of
war,” S.Rep.No. 106-254 at 42.

CRS-14

Reasonable notice
Over time, the courts will most likely define what level of effort is necessary to
satisfy the amendment’s reasonable notice requirement. The Senate Report notes that
heroic efforts are not expected but due diligence is, S.Rep.No.106-254 at 30. The
purpose for the right to notice is to provide a gateway to the amendment’s other
rights. What is reasonable might be judged by whether the efforts are calculated to
permit meaningful exercise of the amendment’s other rights.44 The Senate Report
explains that in rare circumstances notice by publication might be reasonable,45
although in most instances due process requirements are more demanding.46
Under this analysis, notice given after a proceeding has been conducted would
seem unreasonable because the want of timely notice might constitute an effective
exclusion from the proceedings or might defeat the right to make a victim impact
statement.47 Assuming the amendment contemplates timely notice, it is unclear
whether it also anticipates the proceedings must await timely notice if need be.

44

The right to notice of hearings at which an individual has a right to be heard is a
component of due process under existing law. “The Supreme Court has long made clear that
due process requires notice reasonably calculated to provide actual notice of the proceedings
and a meaningful opportunity to be heard. In City of West Covina v. Perkins, 119 S.Ct. 678,
681 (1999), the Court explained the notice requirement in these words: A primary purpose of
the notice required by the Due Process Clause is to ensure that the opportunity for a hearing
is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950)(`Th[e] right to be heard has little reality or worth unless one is informed that the matter
[affecting one’s property rights] is pending and can choose for himself whether to appear or
default, acquiesce or contest’)”, Nazarove v. INS, 171 F.3d 478, 482-83 (7th Cir. 1999).
45

S.Rep.No.106-254 at 30 (“In rare mass victim cases (i.e., those involving hundreds of
victims), reasonable notice could be provided by mean[s] tailored to those unusual
circumstances, such as notification by newspaper or television announcement”).
46

Small v. United States, 136 F.3d 1334, 1336 (D.C.Cir. 1998)(“`An elementary and
fundamental requirement of due process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.’ Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. at 314. As Mullane made clear, the Due
Process Clause does not demand actual, successful notice, but it does require a reasonable
effort to give notice. `[P]rocess which is mere gesture is not due process. The means employed
must be such as one desirous of actually informing the absentee might reasonably adopt to
accomplish it.’ Mullane, 339 U.S. at 315. . . . [T]he Mullane Court observed that `[c]hance
alone brings to the attention of even a local resident an advertisement in small type inserted
in the back pages of a newspaper.’ Id. Almost fifty years after Mullane, in an increasingly
populous and mobile nation, newspaper notices have virtually no chance of alerting an unwary
person that he must act now or forever lose his rights”).
47

On a related question, “[i]t has long been established that due process allows notice of a
hearing (and its attendant procedures and consequences) to be given solely in English to a nonEnglish speaker if the notice would put a reasonable recipient on notice that further inquiry
is required,” Nazarova v. INS, 171 F.3d at 483. Due process, however, does include the right
of a non-English speaker to have interpreter present in order to participate in a proceeding at
which the individual has a right to be heard, Id. at 484-85.

CRS-15
The issue may be most challenging in the area of bail. The amendment
proposals grant both a right to consideration of the victim’s safety and a right to
reasonable notice and attendance. Under normal circumstances it might not be
unusual for an accused to be released on recognizance or bail before authorities
could reasonably be expected to provide victims with timely notice. It may be that
the amendment contemplates postponement of the accused’s initial judicial
appearance until after victims can be notified and can be given a reasonable period
of time to prepare and present their views. On the other hand, the amendment may
anticipate that a failure of timely notice in a bail context can be adequately rectified
without postponement by recourse to the provision in the amendment that permits
the bail decision to be revisited at the behest of a victim.48

48

“. . . Nothing in this article shall provide grounds to . . . reopen any proceeding . . . except
with respect to conditional release . . . .” §2.
Of course, the result may be the same under either approach – an accused is detained
longer than would otherwise be the case in the name of victims’ rights, S.Rep.No.105-409 at
44 (additional views of Sen. Hatch)(“This provision in particular has perhaps the greatest
potential to collide with the legitimate right of defendants. All defendants and convicts have
a constitutionally protected liberty interest in conditional release, once such release is granted.
Permitting victims to move to reopen such proceedings or invalidate such rulings, would, of
course, necessitate the re-arrest and detention of released defendants and convicts, likely
implicating their liberty interest”). To the which the sponsors respond, “Chairman Hatch has
pointed out that the amendment should not be construed as potentially implicating the `liberty’
interest of criminal defendants by allowing victims to reopen bail or other proceedings after
a defendant has been released. We agree with the Chairman that defendants are entitled to due
process before bail is revoked. . . . The amendment does not give victims any unilateral right
to revoke bail, for example, but, rather, simply extends to victims the right `to consideration
for the safety of the victim in determining any conditional release from custody.’ That
consideration, of course, will be give consistently with due process for the defendant. Today,
of course, due process permits a prosecutor to ask a court to reconsider bail decision. The
amendment simply follows that well-trodden path in affording victims a similar right,”
S.Rep.No. 106-254 at 46 (additional views of Sens. Kyl and Feinstein)(emphasis in the
original).

CRS-16

Not to be excluded
The Constitution promises the accused a public trial by an impartial jury49 and
affords him the right to be present at all critical stages of the proceedings against
him.50 It offers victims no such prerogatives. Their status is at best that of any
other member of the general public and, in fact, the Constitution screens the
accused’s right to an impartial jury trial from the over exuberance of the public.51
Moreover, victims are even more likely to be barred from the courtroom
during trial than members of the general public. Ironically, the victim’s status as a
witness, the avenue of most likely access to pre-trial proceedings, is the very
attribute most likely to result in exclusion from the trial.
Sequestration, or the practice of separating witnesses and holding outside the
courtroom all but the witness on the stand, is of ancient origins and “consists merely
in preventing one prospective witness from being taught by hearing another’s

49

“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,” U.S.Const. Amend. VI (emphasis added).
50

United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999), citing, United States v.
Gagnon, 470 U.S. 522, 526 (1985), and Faretta v. California, 422 U.S. 806, 819n.15
(1975).
51

Woods v. Dugger, 923 F.2d 1454, 1459-460 (11th Cir. 1991)(finding a Sixth Amendment
violation in a case involving the murder of a prison guard, marked by extensive pretrial
publicity, in a community where the prison system employed a substantial percentage of the
population, and in which more than half of the members in attendance during the course of the
trial were uniformed prison guards); Norris v. Risley, 918 F.2d 828, 834 (9th
Cir.1990)(finding a Sixth Amendment violation in a kidnapping/rape case in which women
wearing “Women Against Rape” buttons permeated the courtroom and its environs)(“we find
the risk unconstitutionally great that these large and boldly highlighted buttons tainted
Norris’s right to a fair trial both by eroding the presumption of innocence and by allowing
extraneous, prejudicial considerations and cross-examination”). Norris also noted a similar
view among the state courts, “A decision of the West Virginia Supreme Court is informative
regarding the wearing of buttons during trial. State v. Franklin, 327 S.E.2d 449 (W.Va.
1985) involved a prosecution for driving under the influence of alcohol, resulting in death.
During the trial, various spectators from an organization campaigning under the acronym
MADD (Mothers Against Drunk Driving) wore buttons inscribed with the capital letters
MADD. Most jurors knew what the initials stood for. In reversing the conviction and
remanding for a new trial, the court noted that the trial court’s `cardinal failure . . . was to
take no action whatever against a predominant group of ordinary citizens who were tooth and
nail opposed to any finding that the defendant was not guilty.’ Id. at 455,” 918 F.2d at 832.

CRS-17
testimony.”52 The principle has been embodied in Rule 615 of the Federal Rules of
Evidence and in state rules that adopt the federal practice.53
Victims’ advocates contend that it should be fundamental that individuals may
attend the entire trial involving the crime visited upon them. Yet an absolute right
to attend all proceedings may sometimes be unfair, and in some instances even a
violation of due process or the right to trial by an impartial jury.
In response to the debate, about a third of the states now permit victims to
attend all court proceedings regardless of whether the victim is scheduled to
testify;54 another group allows witnesses who are victims to attend subject to a
showing as to why they should be excluded;55 a few leave the matter in the
discretion of the trial court;56 and some have maintained the traditional rule —
witnesses are sequestered whether they are victims or not.57
Subject to Rule 615 of the Federal Rules of Evidence which permits exclusion
of victim/witnesses, the federal statutory victims’ bill of rights recognizes the right
of victims “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,” 42 U.S.C. 10606(b)(4).

52

VI WIGMORE ON EVIDENCE §§1837, 1838 (1940 ed.).

53

F.R.Evid. 615(“At the request of a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its own
motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person designated as its representative
by its attorney, or (3) a person whose presence is shown by a party to be essential to the
presentation of the party’s cause”).
54

A few accomplish this result by requiring the victims who are witnesses to testify first and
then be allowed to remain, e.g., VT.R.EVID. 615 (“At the request of a party the court shall
order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may
make the order of its own motion; after a witness’ testimony has been completed, however,
the witness may remain within the courtroom, even if the witness subsequently may be called
upon by the other party or recalled in rebuttal, unless a party shows good cause for the
witness to be excluded. . .”).
55

E.g., CONN.CONST. art.I, §8[b.](the victim has the right to attend the trial and all other
court proceedings the accused has the right to attend, unless such person is to testify and the
court determines that such person’s testimony would be materially affected if such person
hears other testimony); FLA.CONST. Art.1, §16(b)(victims have the right to be present at all
critical stages of the criminal proceedings to the extent that the victim’s presence does not
interfere with the constitutional rights of the accused).
56

E.g., WASH.R.EVID. 615 (emphasis added)(“At the request of a party the court may order
witnesses excluded so that they cannot hear the testimony of other witnesses . . .”). The federal
rule in contrast declares that the court “shall” order sequestration under such circumstances.
57

E.g., HAW.R.EVID. 615.

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Victims who attend a trial are not disqualified from appearing as witnesses at
subsequent sentencing hearings absent a danger of unfair prejudice, jury confusion,
of the jury being misled, or as constitutionally required.58
It has been suggested that the phrase “not to be excluded” in the amendment
was originally used to avoid the claims that the amendment entitled victims to
transportation to relevant proceedings or to have proceedings scheduled for their
convenience or to free them from imprisonment, S.Rep.No.106-254 at 31. In this
it would be unlike the defendant’s right to attend. Yet like the defendant’s right to
attend, the use of the phrase in earlier proposals was thought to permit exclusion
of the victim for disruptive behavior, excessive displays of emotion, and other forms
of impropriety for which a defendant might be excluded, Id.
Under existing law, the usual rationale for exclusion is to prevent victim/
witnesses from having their testimony colored by the testimony of other earlier
witnesses.59 Victim exclusion is one of the features of existing law that the
amendment seeks to overcome. How its command may be implemented is less
apparent. In single victim cases, both policies can be honored simply by having the
victim testify first. The two policies might also be reconciled by refusing to allow
attending victims to testify, since the right not to be excluded does not include the
right to testify and the right to be heard does not extend to trial testimony. The
issue might be resolved alternatively on victim-defendant equality grounds. The
defendant is constitutionally entitled to attend the entire trial even if he is ultimately
to be a witness. The amendment may be seen as an equalizer. If so, it may not
preclude defense counsel from commenting upon a victim’s opportunity to color his
or her testimony.60

Public proceedings
One obvious purpose of limiting the rights to public proceedings is to avoid
opening the grand jury to victim notice and attendance rights. Victim participation
in the investigation or in plea discussions between the prosecutor and defense

58

18 U.S.C. 3510(b). See also, United States v. McVeigh, 958 F.Supp. 512, 514-15
(D.Colo. 1997)(permitting victims to attend trial with the observation that the court’s control
over any subsequent sentencing hearing would permit protective measures against any
prejudicial impact).
59

“The purpose behind the sequestration of witnesses is to discourage and expose
fabrication, inaccuracy and collusion. see [F.R.Evid. 615] Notes of Advisory Committee on
Proposed Rules, and to minimize the opportunity that each witness will have to tailor his
testimony,” United States v. Hickman, 151 F.3d 446, 454 (5th Cir. 1998).
60

Compare, Portuondo v.Agard, 120 S.Ct. 1119, 1127 (2000)(“Allowing comment upon
the fact that a defendant’s presence in the courtroom provides him a unique opportunity tailor
his testimony is appropriate — and indeed, given the inability to sequester the defendant,
sometimes essential — to the central function of the trial, which is to discover the truth.”)
Some suggest that comments on a victim-witness’ credibility are preferable to exclusion as
a means of ensuring a fair trial for the accused, cf., S.Rep.No. 105-409 at 82 (additional
views of Sen. Biden).

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counsel are similarly beyond the pale, if for no other reason than that such activities
lack the tribunal-like characteristics of proceedings.
There may be some question as to what standards should be used to determine
whether proceedings should be considered “public” for purposes of the amendment
and whether the public or confidential character of proceedings is subject to either
judicial or legislative adjustments. These questions seem unlikely to arise except for
related civil proceedings because the public nature of the criminal proceedings is
fairly well defined by existing law.
A public trial is among the rights the Sixth Amendment promises the criminally
accused. Even where the accused agrees to closed proceedings, First Amendment
free press interests may require open proceedings. When asked whether particular
proceedings may be closed to the press, the courts have considered “whether the
place and process have historically been open to the press and general public . . .
[and] whether public access plays a significant positive role in the functioning of the
particular process in question,” Press-Enterprise Co. v. Superior Court (PressEnterprise II), 478 U.S. 1, 8 (1986). When asked to close particular proceedings
over the objections of the accused, the courts, using the standards developed in
press access cases, have demanded that “the party seeking to close the hearing must
advance an overriding interest that is likely to be prejudiced, the closure must be no
broader than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make findings
adequate to support the closure,” Waller v. Georgia, 467 U.S. 39, 48
(1984)(holding the closure of an entire suppression hearing unjustified under the
standards of Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S.
501 (1984)).
Whether victims have notice and attendance rights under the amendment that
apply to juvenile proceedings in jurisdictions where those proceedings are not public
remains to be seen. Traditionally, such proceedings are not public,61 although public
delinquency proceedings are becoming more common.
It is similarly unclear whether the amendment’s notice and attendance rights
apply to historically public events that are now ordinarily held privately. More
precisely does the amendment empower immediate family members of a murder
victim to be notified of and attend the execution of the defendant? Historically,
capital punishment and other types of corporal punishment were publicly
administered.62 Victims and anyone else so inclined might attend.63 Most state laws
61

Federal district courts are authorized to convene the relatively infrequent federal juvenile
delinquency proceedings “in chambers or otherwise” (i.e., in private or otherwise), 18 U.S.C.
5032.
62

The Executioner’s Song: Is There a Right to Listen? 69 VIRGINIA LAW REVIEW 373, 37578 (1983).
63

At the time of public executions, rape and robbery, as well as murder, were capital
offenses in a number of states. As a consequence, direct victims of a capital offense might
well be available to witness the execution of the offender. Since it appears that only crimes
involving the taking of a human life may today be made punishable by death, only the family

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now call for executions to occur in the presence of official witnesses, rather than
being conducted publicly. Those who attend are either identified by statute64 or
their selection is left to the discretion of prison authorities.65 A handful permit two
or three members of the victim’s immediate family to be present.66 And in several,
although the number of official witnesses may be limited, prison officials enjoy
relatively unlimited discretion which they would appear free to exercise to the
benefit of victims or their representatives.67 State law ordinarily determines who
may attend federal executions.68

Related to the crime
The breadth of the phrase “related to the crime” evokes similar questions. The
phrase clearly contemplates more than trial. Pre-trial and post-trial hearings
involving motions to dismiss, to suppress evidence, to change venue, to grant a new
trial, and any of the host of similar proceedings that flow to or from a criminal trial
or friends of a victim would be available to attend.
64

E.g. CONN.GEN.STAT.ANN. §54-100 (“. . . Besides the warden or deputy warden and such
number of correction officers as he thinks necessary, the following persons may be present at
the execution, but no others: The sheriff of the county in which the prisoner was tried and
convicted, the commissioner, a physician of a correctional institution, a clergyman in
attendance upon the prisoner and such other adults, as the prisoner may designate, not
exceeding three in number, representatives of not more than five newspapers in the county
where the crime was committed, and one reporter for each of the daily newspapers published
in the city of Hartford”).
65

E.g., ARIZ.REV.STAT.ANN. §13-705 (“The director of the state department of corrections
or the director’s designee shall be present at the execution of all death sentences and shall
invite the attorney general and at least twelve reputable citizens of the director’s selection to
be present at the execution. The director shall, at the request of the defendant, permit
clergymen, not exceeding two, whom the defendant names and any persons, relatives or
friends, not exceeding five, to be present at the execution. The director may invite peace
officers as the director deems expedient to witness the execution. No persons other than those
set forth in this section shall be present at the execution nor shall any minor be allowed to
witness the execution”).
66

Only one state, New Jersey, appears to explicitly bar victims’ relatives from the execution,
N.J.STAT.ANN. §2C:49-7[d.](“the commissioner shall not authorize or permit any person who
is related by either blood or marriage to the sentenced persons or to the victim to be present
at the execution. . .”).
67

COLO.REV.STAT.ANN. §16-11-404 (“. . . There shall also be present [at the execution of
a death sentence] a physician and such guards, attendants and other persons as the executive
director or his designee in his discretion deems desirable, not to exceed fifteen persons. . .”).
68

18 U.S.C. 3596 (“. . . the Attorney General shall release the person sentenced to death to
the custody of a United States marshal, who shall supervise implementation of the sentence
in the manner prescribed by the law of the State in which the sentence is imposed. If the law
of the State does not provide for implementation of a sentence of death, the court shall
designate another State, the law of which does provide for the implementation of a sentence
of death, and the sentence shall be implemented in the latter State in the manner prescribed by
such law”).

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seem to come within the meaning of the term. The Senate Report, for instance,
specifically mentions appellate proceedings, S.Rep.No.106-254 at 30-1.
The same Report indicates that the term “release. . . from custody related to
the crime” was understood to include “a release [from custody] of a defendant
found not guilty of a crime by reason of insanity and then hospitalized in custody for
further treatment,” Id. at 36. Crime relatedness, understood in such terms, would
presumably carry victim notice and attendance rights to a fairly wide range of civil
and quasi-civil proceedings, e.g., habeas and civil forfeiture proceedings,
deportation and extradition hearings, and administrative disciplinary reviews (if
conducted publicly before a tribunal) to name but a few.
There have been suggestions that the phrase may encompass notice and
attendance rights for the victims of a defendant’s past crimes, or of charges that
have been dropped or dismissed, or of charges resulting in acquittal.69

Right to be heard
to be heard, if present, and to submit a statement at all such proceedings to
determine a conditional release from custody, an acceptance of a negotiated
plea, or a sentence
to consideration for the safety of the victim in determining any conditional
release from custody relating to the crime
This right to “be heard” and “to submit a statement” in each of three kinds of
proceedings might be construed as the right to communicate (right to submit a
statement) and the right to have the communication carry determinative weight (the
right to be heard). The position of the two components and the interjection of the
phrase “if present” seems to make it more plausible to read the clause as creating
a right to communicate either in person (to be heard, if present) or otherwise (to
submit a statement). The amendment’s later, separate listing of a victim’s right to
have his safety considered in the course of bail proceedings also argues against any
conclusion that alone the right to be heard contemplates a right to have the message
carry determinative weight.
69

“Frequently, criminal defendants are suspected to have committed crimes for which they
are never charged or for which charges are later dropped, even though significant evidence
may exist that the defendant did indeed commit the crime. 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 to
notice and allocution relating to conditional release, the acceptance of negotiated pleas
(perhaps substantially complicating plea bargains) and sentencing,” S.Rep.No.105-409 at 42
(additional views of Sen. Hatch).
Under existing federal law, sentencing courts must consider “relevant conduct” that is
“part of the same course of conduct or common scheme or plan as the offense of conviction,”
U.S.S.G. §1B1.3(a)(2), that includes misconduct for which the defendant has never been
charged or even for which he may have been acquitted, United States v. Watts, 519 U.S. 148
(1997).

CRS-22
Use of the words “if present” and “such proceedings” confirms an intent to
read the notice qualifications into the right to heard, so that the right to be heard
only attaches with respect to public proceedings involving conditional release, plea
bargain, and sentencing.
The right to speak applies at hearings involving sentencing, the acceptance of
a plea bargain, or a conditional release from custody. “Proceedings to determine
a conditional release from custody” apparently means bail hearings, and possibly a
great deal more. Bail hearings seem to be covered since bail is contingent, at a
minimum, upon the pledge of the accused to appear for subsequent judicial
proceedings. Victims may enjoy a right to be heard and submit a statement at
proceedings for pre-trial diversion approval or for release from civil commitment
as well.70

Bail
The proposed amendment gives crime victims the right to be notified of, not
to be excluded from, to be heard and submit a statement at, and to have their safety
considered in, related bail proceedings, as well as the right to notice of the
defendant’s actual release on bail.
This represents an expansion of victims’ rights in most jurisdictions. Its
promise of the right to be heard in particular is more generous than most, although
victims’ rights to have their interests considered, to be notified, to attend, and in
some instances to make presentations at bail proceedings appear more frequently
in state statutes and court rules than was once the case.
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 of the victim was
thought to be a relevant consideration. Bail was a guarantee against suspect flight.
That was all. The amount of security required and the conditions imposed for pretrial release were calculated solely to insure the courtroom presence of the accused
at the appointed hour.71 Most states had, and still have, right to bail clauses for

70

S.Rep.No.106-254 at 32 (“This phrase encompasses, for example, hearings to determine
any pre-trial or post-trial release (including comparable releases during or after an appeal) on
bail, personal recognizance, to the custody of a third person, or under any other conditions,
including pre-trial diversion programs. Other examples of conditional release include work
release and home detention. It also includes parole hearings or their functional equivalent,
both because parole hearings have some discretion in releasing offenders and because releases
from prison are typically subject to various conditions such as continued good behavior. It
would also include a release from a secure mental facility for a criminal defendant or one
acquitted on the grounds of insanity”). “Pre-trial diversion is an alternative to prosecution
that diverts certain offenders from traditional criminal justice processing into a program of
supervision,” Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994), citing the United States
Attorney Manual, §9-22.400.
71

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

CRS-23
noncapital offenses in their state constitutions.72 Those jurisdictions that did not
have a right to bail clause had and have a prohibition against excessive bail,73 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.74
In many jurisdictions, this view slowly gave way to a recognition that public
and individual safety are 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 has been amended;75 in some, the state courts have interpreted the right
to bail to include a witness protection and judicial integrity exception;76 courts in
still other states have held that the right to bail clauses permitted imposing victim
or public safety conditions77 and allowed revocation of bail if the conditions have
been broken.78
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
Constitution’s excessive bail clause or its due process clauses or both. The Court

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).
72

E.g., 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.
73

E.g., GA.CONST. art.I, §1 ¶17; HAW. CONST. art.I, §12.

74

Huihui v. Shimoda, 64 Haw. 527, 530-39, 644 P.2d 968, 971-76 (1982).

75

E.g., 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”).
76

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).
77
78

Henley v. Taylor, 324 Ark. 114, 115-16, 918 S.W.2d 713, 714 (1996).

State v. Dodson, 556 S.W.2d 938, 945 (Mo.App. 1977); Mello v. Superior Court, 117
R.I. 578, 583-85, 370 A.2d 1262, 1264-265 (1977).

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declared that neither clause bars legislative creation of a system that conditions
pretrial release upon public safety as well as preventing flight.79
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.80 A few more permit consultation with the prosecutor prior to the bail
hearing.81 Most allow victims to attend.82 And virtually all provide either that
victims should be notified of bail hearings or that victims should be notified of the
defendant’s release on bail.83
Under federal law, victims of alleged acts of interstate domestic violence or
interstate violations of a protective order have a right to be heard at federal bail
proceedings concerning any danger posed by the defendant.84 In other federal
cases, victims’ prerogatives seem to be limited to the right to confer with the
prosecutor, notification of, and attendance at, all public court proceedings.85
Similar past proposals — to be heard, to submit a statement, and to have
victim safety weighed — were considered subject to the defendant’s bail rights

79

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”).
80

E.g., S.D.COD.LAWS ANN. §23A-28C-1(“Consistent with §23A-28C-4 [defining victims],
victims of the crime, including victims of driving under the influence vehicle accidents, have
the following rights: . . . (3) to testify at scheduled bail or bond hearings regarding any
evidence indicating whether the offender represents a danger to the victim or the community
if released”).
81

E.g., VT.STAT.ANN. tit.13 §5308 (“If practicable the victim of a listed crime shall be
given notice of the defendant’s arraignment by the law enforcement agency that issued the
citation or made the arrest. The victim of a listed crime shall have the right to be present at
the defendant’s arraignment. The prosecutor’s office shall inform the victim about the issues
concerning bail and the prosecutor shall advise the court of the victim’s position regarding
bail”).
82

E.g., OHIO REV.CODE ANN. §2930.09.

83

E.g., ALA.CODE §15-23-75 (4)(“If the terms and conditions of a post-arrest release include
a requirement that the accused post a bond, the sheriff or municipal jailer shall, upon request,
notify the victim of the release on bond of the defendant”); NEB.REV.STAT. §81-1848
(“Victims as defined in section 29-119 shall have the following rights: . . . (b) to receive from
the county attorney advance reasonable notice of any scheduled court proceedings and notice
of any changes in that schedule”).
84

18 U.S.C. 2236.

85

42 U.S.C. 10606(b).

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under the excessive bail and due process clauses in the United States Constitution,
S.Rep.No.105-409 at 32. That is the still the view, S.Rep.No. 106-254 at 38.

Other Forms of Conditional Release
The amendment’s notice, attendance, and statement rights apply to other forms
of conditional release as well. Exactly what forms are covered may be a matter of
some dispute. The Senate Report identifies pre-trial diversion, work release, home
detention, release from civil commitment as forms of conditional release, Id. at 27.
The rights only attach to public proceedings which might result in a conditional
release. They have no application where the conditional release in whatever form
occurs as a matter of right or in any other manner other than pursuant to “public
proceedings.” The Report would also exclude those proceedings where the
prospect of conditional release is the indirect result rather than the focus of the
proceedings, e.g., “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 of these points might indirectly and ultimately lead to the `release’
of the defendant,” Id.

Plea bargains
Negotiated guilty pleas account for over ninety percent of the criminal
convictions obtained.86 Plea bargaining offers the government convictions without
the time, cost, or risk of a trial, and in some cases a defendant turned cooperative
witness; it offers a defendant conviction but on less serious charges, and/or with the
expectation of a less severe sentence than if he or she were convicted following a
criminal trial,87 and/or the prospect of other advantages controlled, at least initially
by the prosecutor — agreements not to prosecute family members or friends, or to
prosecute them on less serious charges than might otherwise be filed;88 forfeiture

86

Karmen, CRIME VICTIMS: AN INTRODUCTION TO VICTIMOLOGY 189 (3d ed. 1996)(out of
every 100 felony arrests, 54 result in convictions, 52 of those 54 by guilty plea, citing a 1992
Department of Justice study of 30 jurisdictions); Administrative Office of the United States
Courts, Judicial Business of the United States Courts, 228 (1999)(only 3,629 of 59,885 of
the defendants convicted of federal crimes in the fiscal year ending in September, 1998 were
found guilty by a judge or jury following a criminal trial; the rest pled guilty or nolo
contendere).
87

In addition to extraordinarily broad discretion to initiate or abandon a prosecution, Wayte
v. United States, 470 U.S. 598 (1985); Town of Newton v. Rumery, 480 U.S. 386 (1987),
prosecutors play an important role in sentencing, see e.g., 18 U.S.C. 3553(b)(federal court
may depart from the federal sentencing guidelines upon the motion of the prosecutor); 18
U.S.C. 3553(e)(federal court may sentence a defendant below an otherwise mandatory
minimum term of imprisonment upon the motion of the prosecutor).
88

See e.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959
F.2d 1011 (D.C.Cir. 1992).

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concessions;89 testimonial immunity;90 entry into a witness protection program;91 and
informant’s rewards,92 to mention a few.
For the victim, a plea bargain may come as an unpleasant surprise, one that
may jeopardize the victim’s prospects for restitution, one that may result in a
sentence the victim finds insufficient,93 and/or one that changes the legal playing
field so that the victim has become the principal target of prosecution.94
Some states victims’ rights provisions are limited to notification of the court’s
acceptance of a plea bargain.95 More often, however, the states permit the victim
to address the court prior to the acceptance of a negotiated guilty plea96 or to confer
with the prosecutor concerning a plea bargain.97
The amendment assures crime victims of the right to be heard and submit a
statement before a plea bargain is accepted. The right only attaches to the
acceptance of plea bargains in open court (i.e., at public proceedings).98 It remains

89

Cf., Libretti v. United States, 116 S.Ct. 356 (1995)(government agreed to limit charges
and make a favorable sentencing recommendation in exchange for the defendant’s guilty plea
and his agreement to transfer all property that would have been subject to criminal forfeiture
upon his conviction).
90

See e.g., 18 U.S.C. 6001-6005 (witness immunity).

91

E.g., 18 U.S.C. 3521 (witness relocation and protection).

92

See e.g., 18 U.S.C. 3059 (rewards); 18 U.S.C. 3059A (rewards for crimes against
financial institutions); 18 U.S.C. 3071-3077 (rewards for information relating to terrorism).
93

“The victim has two interests in the plea bargain decision. One interest is financial: the
victim is interested in restitution being imposed as part of the sentence. Thus in a charge
bargaining, the victim wants to insure that the defendant pleads to a charge sufficiently serious
to allow restitution; and in a sentence bargain, the victim wants to advocate an award of
restitution. The victim’s second interest is retribution, or revenge: the victim feels he or she
has been violated and that the criminal’s punishment should be severe. Therefore, in a charge
bargain, the victim would want the defendant to plead guilty to a serious charge, and in a
sentence bargain, the victim would want a significant sentence imposed,” Walling, Victim
Participation in Plea Bargains, 65 WASHINGTON UNIVERSITY LAW QUARTERLY 301, 307-8
(1987).
94

See e.g., The Proper Standard for Self-Defense in New York: Should People v. Goetz Be
Viewed as Judicial Legislation or Judicial Restraint, 39 SYRACUSE LAW REVIEW 874
(1988)(discussing prosecution of subway rider who shot the four young men he claimed
attempted to rob him; Goetz was subsequently prosecuted and convicted for unlawful
possession of a handgun).
95

E.g., IOWA CODE ANN. §915.13; WYO.STAT. §1-40-204.

96

E.g., R.I.GEN.LAWS §12-28-4.1(a); MO.ANN.STAT. §595.209.

97

E.g., DEL.CODE ANN. tit.11 §9405; KY.REV.STAT.ANN. §421.500.

98

Cf., S.Rep.No. 106-254 at 30 (“Victims’ rights under [the notice] provision are also
limited to `public’ proceedings. Some proceedings, such as grand jury investigations, are not
open to the public and accordingly would not be open to the victim. Other proceedings, while
generally open, may be closed in some circumstances. For example, while plea proceedings

CRS-27
to be seen what impact a victim’s right to be heard prior to the acceptance of a plea
bargain would have on the inclination of the court to close the proceedings.

Sentencing
At common law, victims had no right to address the court before sentence was
imposed upon a convicted defendant. The victim’s right to bring the impact of the
crime upon him to the attention of the court was one of the early goals of the
victim’s rights efforts. The Supreme Court has struggled with the propriety of
victim impact statements in the context of capital punishment cases, ultimately
concluding that they pose no necessary infringement upon the rights of the
accused.99 It is said that permitting victim impact statements serves several
beneficial purposes: (1) to protect the victim’s interest in having the court order the
defendant to make restitution,100 (2) to increase the possibility that the sentence
imposed will reflect the damage done and therefore the seriousness of the crime,101
(3) to balance the pleas for the defendant that have traditionally been heard at that
point,102 and (4) to restore some level of dignity and respect for the victim.103
Critics counter that the use of victim impact statements introduces irrelevancies
into the sentencing process,104 distorts the rationale for sentencing thereby leading
to disparate results,105 leads to putting the victim on trial,106 and in cases where the

are generally open to the public, a court might decide to close a proceeding in which an
organized crime underling would plead guilty and agree to testify against his bosses”).
99

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held the Eighth
Amendment did not permit the presentation of victim impact evidence to a sentencing jury in
a death penalty case; in Payne v. Tennessee, 501 U.S. 808 (1991), it repudiated Booth and
declared that victim impact statements were not inherently suspect.
100

Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues
and Problems, 11 PEPPERDINE LAW REVIEW 117, 172-3 (1984).
101

Id.

102

Booth v. Maryland, 482 U.S. at 520 (Scalia, J., dissenting); Payne v. Tennessee: The
Supreme Court Places its Stamp of Approval on the Use of “Victim Impact Evidence”
During Capital Sentencing Proceedings, 1992 BRIGHAM YOUNG UNIVERSITY LAW REVIEW
841, 852.
103

Sentencing Criminals: The Constitutionality of Victim Impact Statements, 60 MISSOURI
LAW REVIEW 731, 735 (1995).

104

Booth v. Maryland, 482 U.S. 496, 502-3 (1987).

105

Booth v. Maryland, 482 U.S. at 505-6; Hall, Victims’ Voices in Criminal Court: The
Need for Restraint, 28 AMERICAN CRIMINAL LAW REVIEW 233, 259-60 (1991).
106

Booth v. Maryland, 482 U.S. at 507; Berger, Payne and Suffering – A Personal
Reflection and a Victim-Centered Critique, 20 FLORIDA STATE UNIVERSITY LAW REVIEW
21, 50 (1992).

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jury determines or recommends the sentence to be imposed, may be unfairly
inflammatory.107
Nevertheless, one of the most prevalent of victims’ rights among the states is
the right to have victim impact information presented to sentencing authorities.
There is, however, tremendous diversity of method among the states. Many call for
inclusion in a presentencing report prepared for the court in one way or another,108
often supplemented by a right to make some kind of subsequent presentation as
federal law permits.109 Some are specific as to the information that may be
included;110 some permit the victim to address the court directly; others do not.111
The amendment guarantees crime victims the right to submit a statement to the
court prior to sentencing and, if present, to address the court. The language of the
amendment does not specify what form the statement may or must take nor any
length, content or other limitation on either the statement or in person presentation.
Nor does it expressly identify any limitation activated by a conflict with rights of the
defendant. Drafters may envision a legislative definition of these limitations, but
section 3 may confine such efforts to those “necessary to achieve a compelling
interest.”
The Senate Judiciary Committee, however, finds considerably more flexibility
in this language. It notes the language’s dual function of giving sentencing
authorities more complete information and of providing victims with “a powerful
catharsis,” S.Rept.106-254 at 33. In light of this second purpose, “a victim will
have the right to be heard even when the judge has no discretion in imposing a
mandatory prison sentence,” Id. It adds immediately thereafter that Congress and
the states would nevertheless have the prerogative to limit victim statements to
relevant testimony, to define relevancy as they chose, and to otherwise limit the
length and content of victims’ statements.112

107

Cf., Payne v. Tennessee, 501 U.S. at 827, and 501 U.S. at 831.

108

E.g., F.R.Crim.P. 32(b).

109

E.g., TENN.CODE ANN. §40-35-209(b)(“At the sentencing hearing, the court shall afford
the parties the opportunity to be heard . . . and may afford the victim of the offense or the
family of the victim the opportunity to testify relevant to the sentencing of the defendant. . .”).
110

E.g., FLA.STAT.ANN. §921.143.

111

E.g., PA.STAT.ANN. tit. 18 §11.201 (“Victims of crime have the following rights: . . . (5)
To have opportunity to offer prior comment on the sentencing or a defendant to include the
submission of a written victim impact statement detailing the physical, psychological and
economic effects of the crime on the victim and the victim’s family, which statement shall be
considered by the judge when determining the defendant’s sentence”).
112

“Congress and the states remain free to set certain limits on what is relevant victim impact
testimony. For example, a jurisdiction might determine that a victim’s views on the
desirability or undesirability of a capital sentence is not relevant in a capital proceeding. Cf.
Robison v. Maynard, 943 F.2d 1216 (10th Cir. 1991) (concluding that victim opinion on
death penalty not admissible). The Committee does not intend to alter or comment on laws
existing in some States allowing for victim opinion as to the proper sentence. . . . Nor does
[the victims’ right] give victims any right to `filibuster’ any hearing. As with defendant’s

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Parole hearings
to the foregoing rights at a parole proceeding that is not public, to the extent
those rights are afforded to the convicted offender
The debate on the victim’s opportunity to be heard on parole is an extension
of the debate involving victim participation in sentencing — to what extent is the
seriousness of the crime (weighed by its impact on its victims) a relevant, valid
factor in determining how long an offender should be imprisoned. There are some
differences between initial sentencing and parole. The venue for parole hearings is
less likely to be victim convenient,113 the objections of parole and prison officials
based on concerns of enlarged case loads are mentioned more often,114 and the
“truth-in-sentencing” trend has increased the number of jurisdictions that have
established sentencing guidelines and/or abolished parole.115 But as with sentencing,
in most jurisdictions victims are permitted to make their views known to parole
authorities.116

existing rights to be heard, a court may set reasonable limits on the length and content of
statements,” S.Rep.No. 106-254 at 34.
Robison held that the opinion of a murder victim’s family that the defendant should not
be sentenced to death was not relevant mitigating evidence because it did “not relate to the
harm caused by the defendant,” 943 F.2d at 1218.
At the time the report was written, the Committee knew that federal prosecutors in the
Oklahoma City bombing case had advised the families of victims that they could not be heard
at sentencing if they were opposed to imposition of the death penalty as a matter of principle,
Senate Hearings at 71-2 (statement of Marsha A. Kight).
113

Victims’ Roles in the Criminal Justice System: A Fallacy of Victim Empowerment, 8
ST.JOHN’S JOURNAL OF LEGAL COMMENTARY 225, 242 (1992).

114

Id. at 243; McLeod, Something New Has Been Added: Parole Boards Are Turning to
Victims Before Making Their Decisions, 4 CRIMINAL JUSTICE 12, 15 (Spring, 1989).
115

“Truth-in-Sentencing” is a characterization of the approach reflected in the 1984 federal
Sentencing Reform Act under which most federal offenders actually serve a substantial
percentage of the time to which they are sentenced, i.e., judicial discretion to suspend
sentences or grant probation is limited; sentences guidelines limit the range of sentences that
may be imposed for a particular offense; parole and extensive good time allowances are
abolished, 98 Stat. 1987 (1984). Each of these changes limits sentencing discretion on behalf
of the victim or otherwise – either the sentence the court may impose or the discretion of
prison and parole authorities to set and adjust release dates.
116

E.g., ORE. REV.STAT. §144.120(7)(“The State Board of Parole and Post-Prison
Supervision must attempt to notify the victim, if the victim requests to be notified and
furnishes the board a current address, and [to notify] the district attorney of the committing
county[,] at least 30 days before all hearings by sending written notice to the current addresses
of both. The victim, personally or by counsel, and the district attorney from the committing
jurisdiction shall have the right to appear at any hearing or, in their discretion to submit a
written statement adequately and reasonably expressing any views concerning the crime and
the person responsible. The victim and the district attorney shall be given access to the
information that the board or division will rely upon and shall be given adequate time to rebut
the information. Both the victim and the district attorney may present information or evidence
at any hearing, subject to such reasonable rules as may be imposed by the officers conducting

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Parole has been abolished in the federal system. It is available only with
respect to crimes committed prior to November 1, 1987, 18 U.S.C. 4201 note. For
parole of prisoners convicted of such crimes, victim impact information must be
considered.117
The amendment’s clause affording victim-defendant equality of right in parole
cases seems to be driven by the fact that parole decisions may not be made pursuant
to public proceedings in every jurisdiction, S.Rep.No.105-409 at 29-30, and may
be intended to apply not only in parole cases but in any conditional release situation
where the right to be heard would be unavailable because release occurs other than
pursuant to public proceedings.118

Pardons
to reasonable notice of and an opportunity to submit a statement concerning
any proposed pardon or commutation of a sentence
The separate clause covering pardons and commutations of sentence can
presumably be explained by the fact that in many jurisdictions, the exercise of the
pardoning power or executive clemency is administrative and occurs without any
“proceedings” as such. Nevertheless, in close to half of the states victims must be
notified that the defendant’s pardon or commutation of sentence is under
consideration, and in the vast majority of these victims have a right to submit a
statement on the question.119

the hearing. For the purposes of this subsection, `victim’ includes the actual victim, a
representative selected by the victim, the victim’s next of kin or, in the case of abuse of corpse
in any degree, an appropriate member of the immediate family of the decedent”).
117

18 U.S.C. 4207 (1982 ed.)(“In making a determination under this chapter [relating to
release on parole] the Commission shall consider. . . (5) a statement, which may presented
orally or otherwise by any victim of the offense for which the prisoner is imprisoned about the
financial, social, psychological, and emotional harm done to, or loss suffered by such victim.
. .”).
118

“The term `parole’ is intended to be interpreted broadly. Many jurisdictions are moving
away from `parole’ but still have a form of conditional release. The term also encompasses
comparable hearings on conditional release from secure mental facilities,” S.Rep.No.105-409
at 30.
119

ALA.CODE §§15-23-36, 15-23-79; ALASKA STAT. §33.20.080; ARK.CODE ANN. §16-93204; CONN.GEN.STAT.ANN. §18-27a; DEL.CODE ANN. tit.11 §4361; IND.CODE ANN. §11-92-2 (notice of pardon consideration); IOWA CODE ANN. §915.19; KAN.STAT.ANN. §22-3701
(notice of pardon consideration); LA.REV. STAT.ANN. §46:1844; MD.CORR.SERV.CODE
ANN. §7-805; MICH.COMP.LAWS ANN. §791.244; MINN.STAT.ANN. §§638.04, 638.06;
MISS.CODE ANN. §99-43-43; NEV. REV.STAT. §213.010; N.C.GEN.STAT. §15A-838;
N.D.CENT.CODE §12.1-34-02; OHIO REV.CODE ANN. §2967.12; OKLA.S TAT.ANN. tit.57
§332.2; ORE.REV.STAT. §167.730 (Governor may request victim statements and must
include them required reports); PA.STAT.ANN. tit.18 §11.201; S.D.COD.LAWS ANN. §§24-144, 24-14-6 (publication notice with statement opportunities to anyone who feels aggrieved);

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The Justice Department has objected to the proposals as “an unprecedented
incursion on the President’s power to grant executive clemency requests” and in
some states upon similar powers vested in the governor.120

Release or Escape Notification
to reasonable notice of a release or escape from custody relating to the crime
Most states give victims the option of being notified when an offender is to be
released or has escaped from custody.121 Existing federal law, extends the
notification option only to the release of offenders, 42 U.S.C. 10605(b)(7).
The Senate Report on the same language found in an earlier proposal noted
that “reasonableness” must be judged by the circumstances of an individual case.
Thus, “[w]hile mailing a letter would be `reasonable’ notice of an upcoming parole
release date, it would not be reasonable notice of the escape of a dangerous prisoner
bent on taking revenge on his accuser,” S.Rep.No. 105-409 at 30.122
The most vexing reasonableness questions may not involve individual
circumstances but general conditions. In some jurisdictions, the amendment may
require notification of a host of victims who would not previously have been entitled
to notification and whose identity and location is therefore unknown to correctional
authorities.123 Would publication notice be considered reasonable in such cases?
Would the existence of an online or other automated system available to the general

UTAH CODE ANN. §§77-27-9, 77-27-9.5; WIS.STAT.ANN. §§304.09, 304.10; WYO.STAT. §140-204 (notice of pardon consideration).
120

House Hearings III (prepared statement of Assistant Attorney General Eleanor D.
Acheson); the statement later declares that “[a]lthough other provisions of the resolution
would give victims rights in proceedings in which defendants have rights, the pardon provision
would grant victims rights in a setting in which no one — including defendants — has ever
possessed rights. The Framers assigned this power to the President, and we oppose any
amendment that would encroach upon it,” id.
121

E.g., W.VA.CODE §61-11A-8; WYO.STAT. §1-40-204.

122

The Report also expressed the Committee’s view that the term “related to the crime”
would encompass release or escape from mental institutions to which the inmate was
committed following a verdict of not guilty by reason of insanity or of guilty but insane, Id.
123

Not every state has both a release and escape notification statute, many have only one or
the other. Some may limit the victims entitled to notice more narrowly than the amendment.
The amendment grants victims of violent crimes the right to notice; some offer the right only
to victims of certain violent crimes, e.g., Wis.Stat.Ann. §304.063 (victims of homicide, sexual
assault, and child molestation). The amendment applies to escapes and releases occurring
after its effective date regardless of when the underlying crime occurred; many jurisdictions
apply the right with respect to self-identifying victims of prisoners sentenced after the effective
date of the statutory provision creating or implementing the right, e.g., N.Y.Crim.Pro.Law
§380.50 (notice is provided certified mail to victims who have submitted notification cards
distributed to them shortly after the defendant is sentenced).

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public and containing release and escape dates retrievable by prisoner name, without
more, constitute reasonable notice?

Speedy Trial
to consideration of the interest of the victim that any trial be free from
unreasonable delay
The United States Constitution guarantees those accused of a federal crime a
speedy trial;124 the due process clause of the Fourteenth Amendment makes the right
binding upon the states,125 whose constitutions often have a companion provision.126
The constitutional right is reenforced by statute and rule in the form of speedy trial
laws in both the state and federal realms.127
“Ironically, however, the defendant is often the only person involved in a
criminal proceeding without an interest in a prompt trial. Delay often works to the
defendant’s advantage. Witnesses may become unavailable, their memories may
fade, evidence may be lost, changes in the law may be beneficial, or the case may
simply receive a lower priority with the passage of time.”128
Until recently, victims had no comparable rights, although their advocates
contended they had a very real interest in prompt disposition. Some victims sought
to put a traumatic episode behind them; some wanted to see justice done quickly;
some hoped simply to end the trail of inconveniences and hardship that all too often
fell to their lot as witnesses.129
A few states have since enacted statutory or constitutional provisions
establishing a victim’s right to “prompt” or “timely” disposition of the case in one
form or another.130

124

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.
. . . U.S.Const. Amend. VI.
125

Klopfer v. North Carolina, 386 U.S. 213 (1967).

126

E.g., R.I.CONST. art.1, §10; S.C.CONST. art.I, §14.

127

E.g., State: CONN.SUPER.CT.R. §§956B to 956F; DEL.SUPER.CT.CRIM.R. 48 (b);
FLA.R.CRIM.P. 3.191; GA.CODE ANN. §§17-7-170 to 17-7-171. Federal: 18 U.S.C. 31613174.
128

Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’
Rights Amendment, 1994 UTAH LAW REVIEW 1373, 1402.
129

See e.g., Kelly, Victims’ Perceptions of Criminal Justice, 11 PEPPERDINE LAW REVIEW
15, 19-20 (1984); contra, Henderson, The Wrongs of Victim’s Rights, 37 STANFORD LAW
REVIEW 937, 974-77 (1985).
130

E.g. LA.REV.STAT.ANN. §46:1844 [J.] (“The victim shall have the right to a speedy
disposition and prompt and final conclusion of the case after conviction and sentencing”);
N.H.REV.STAT.ANN. §21-M:8-k.

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The federal statutory victims’ bill of rights, 42 U.S.C. 10606, does not include
a speedy trial provision, but Congress has encouraged the states to include a right
to a reasonably expeditious trial among the rights they afford victims.131
In the absence of further development either in its legislative history or in
implementing legislation, courts called upon to construe such a provision might well
find guidance in the Supreme Court’s identification of the factors to be weighed
when testing for unacceptable delay under the speedy trial and due process clauses:
“length of delay, reasons for the delay, defendant’s assertion of his right, and
prejudice to the defendant.”132

Restitution
to an order of restitution from the convicted offender
Every jurisdiction authorizes its courts to order convicted defendants make
restitution. Each jurisdiction, however, addresses distinctly questions of when if
ever restitution is mandatory; the extent to which restitution orders are properly the
subject to plea agreements; whether restitution is available for injuries caused by
acts of juvenile delinquency; which victims are entitled to restitution; what priority,
if any, restitution takes over forfeiture of the defendant’s assets or his payment of
criminal fines; and more.
The amendment appears to make restitution orders mandatory as a matter of
right. The scope of the right is unstated. Although the amendment applies to
juvenile proceedings, the use of the term “convicted offender” might be construed
to limit the amendment’s command to criminal convictions and therefore not reach
findings of delinquency.133

131

42 U.S.C. 10606 nt. (“It is the sense of Congress that the States should make every effort
to adopt the following goals of the Victims of Crime Bill of Rights: . . . (4) Victims of crime
should have the right to a reasonable assurance that the accused will be tried in an expeditious
manner”).
132

Barker v. Wingo, 407 U.S. 514, 530 (1972)(speedy trial); United States v. $8,850, 461
U.S. 555, 564 (due process concerning delays between the seizure of property and the
initiation of in rem forfeiture proceedings); S.Rep.No.106-254, at 36 (“In determining what
delay is `unreasonable,’ the courts can look to the precedents that exist interpreting a
defendant’s right to a speedy trial”).
133

This construction may draw some support from the observation in the Senate Report that,
“[t]he right is, of course, limited to `convicted’ defendants, that is, those who pled guilty, are
found guilty, or enter a plea of no contest,” S.Rep.No. 106-254 at 37. Unless they are
prosecuted as adults, juveniles do not plead guilty, are not found guilty, nor do they enter nolo
pleas. They confess to being or are found delinquent, or in need of supervision, or neglected,
but they are not convicted. The Committee also declared that it had “previously explained
[its] philosophy in some detail in connection with the Mandatory Victim Restitution Act,
codified at 18 U.S.C. §§3663A and 3664, and intends that this right operate in a similar
fashion,” id. (emphasis added). Even though the Mandatory Victim Restitution Act applies
to juveniles tried and convicted as adults, it does not apply to findings of delinquency or other

CRS-34
Restitution orders in a nominal amount or subject to priorities for criminal fines
or forfeiture or other claims against the defendant’s assets might seem inconsistent
with the decision to elevate mandatory victim restitution to a constitutional right.
Yet the Senate Report concluded that the “amendment does not confer on victims
any rights to a specific amount of restitution, leaving the court free to order nominal
restitution . . . . The right conferred on victims is one to an `order’ of restitution.
With the order in hand, questions of enforcement of the order and its priority as
against other judgments are left to the applicable Federal and State law,”
S.RepNo.106-254 at 37.
The Senate Report, however, suspected that the right might include the right
to a pre-trial restraining order to prevent an accused from dissipating assets that
might be used to satisfy a restitution order, id. The right might also extend to
dissipation in the form of payment of attorneys’ fees for the accused, since the
accused has only a qualified right to the assistance of counsel of his choice.134

Victim Safety
to consideration for the safety of the victim in determining any
conditional release from custody relating to the crime
The victims’ participation rights — notification, attendance, and comment —
have already been mentioned. This right appears to run deeper. At a minimum, it
would seem to require that an official, called upon to establish the dictates under
which an individual will be released from custody, must reflect upon whether the
mandates accompanying release should include demands designed to ensure victim
safety.
Most states still recognize a state constitutional right to bail in noncapital
cases. The amendment sweeps away any suggestion that these state constitutional
rights dictate that pre-trial release decisions be based solely on the risk of flight.

Notification of Rights
to reasonable notice of the rights established by this article
This general right of notice is similar to those found in more than a few state
codes and constitutions, either in the form of a victims’ right or of a governmental

dispositions following juvenile proceedings.
134

Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Monsanto, 491 U.S.
600, 616 (1989)(“if the Government may, post-trial, forbid the use of forfeited assets to pay
an attorney, then surely no constitutional violation occurs when, after probable cause is
adequately established, the Government obtains an order barring a defendant from frustrating
that end by dissipating his assets prior to trial”).

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obligation.135 Nevertheless, it represents a departure from the cast of most
constitutional rights and has in the past given at least one member of the Senate
Judiciary Committee pause.136

Enforcement
SECTION 2. Only the victim or the victim’s lawful representative shall have
standing to assert the rights established by this article. Nothing in this article
shall provide grounds to stay or continue any trial, reopen any proceeding or
invalidate any ruling, except with respect to conditional release or restitution
or to provide rights guaranteed by this article in future proceedings, without
staying or continuing a trial. Nothing in this article shall give rise to or
authorize the creation of a claim for damages against the United States, a
State, a political subdivision, or a public officer or employee.
Experience among the states suggests that enforcement may be a stumbling
block for the amendment proposals, for there seem to be few palatable alternatives.
It is possible to draft an amendment to the United States Constitution so that
victims’ rights enforcement is paramount. Legal proceedings conducted without
honoring victims’ rights could be rendered null; parole hearings rescheduled and
conducted anew; plea bargains rejected; trials begun again; unfaithful public servants
exposed to civil and criminal liability; inattentive governmental entities made subject
to claims and court orders. The proposals and state practices have been far less
sweeping.
The amendment proposals, however, are more victim-generous than most of
their state predecessors in several respects. Unlike several of the state constitutional

135

E.g., TENN.COST. art.II, §2 (“victims shall be entitled to the following basic rights . . .
8. The right to be informed of each of the rights established for victims”); ARK.CODE ANN.
§16-90-1107 (“After initial contact between a victim and a law enforcement agency
responsible for investigating a crime, the agency shall promptly give in writing to the victim:
(1) an explanation of the victim’s rights under this subchapter and (2) Information concerning
the availability of [various victims’ assistance, compensation, protection and other services]”).
136

S.Rep.No. 105-409 at 43-4 (additional views of Sen. Hatch) (“No other constitutional
provision mandates that citizens be provided notice of the rights vested in the Constitution —
not even the court-created Miranda warnings are constitutionally required. [The clauses of
the Bill of Rights are ordinarily] written in terms of what the Government cannot do to the
individual, not in terms of what the individual can exact from the Government. This clause in
the proposed victims’ rights amendment would create an affirmative duty on the Government
to provide notice of what rights the Constitution provides, turning this formulation on its head.
. . . I fear that this provision might generate a body of law which will make fourth amendment
jurisprudence simple by comparison. Finally, Congress will be empowered by section 3 of
the proposed amendment to enforce its provisions, presumably including the question of how
governmental entities must provide victims notice. Will this permit Congress to micro manage
the policies and procedures of our State and local law enforcement agencies, prosecutors, and
courts?”). The sponsors disagree, arguing that the Sixth Amendment carries with it a
defendant’s right to notification and that victims should be accorded similar treatment,
S.Rep.No. 106-254 at 45 (additional views of Sens. Kyl and Feinstein).

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amendments, there is no disclaimer concerning any intrusion into the rights the
accused.137 Moreover, they explicitly authorize victims to assert the rights through
representatives, and expressly empower the courts to revisit otherwise final
decisions in the name of victims’ rights.

Standing
Only the victim or the victim’s lawful representative shall have standing to
assert the rights established by this article.
Absent a victims’ rights amendment or some other adjustment in the law, a
victim like any other “private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another,” Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973). This clause confirms an intent to create judicially enforceable rights
notwithstanding the “no-claim-for-damages” language that appears later in the
section.138
The reference to victims’ representatives can be construed in a number of
ways. It might refer to those authorized to claim the rights for victims who for
reasons of death, infirmity, or age are unable to claim them for themselves. It might
refer to victims’ lawyers. It might refer to the prosecutor or to state officials
appointed to represent victims’ interests. It might refer to victims’ rights advocates
generally. Or it might refer to all or some combination of these.
The Senate Report favors a broad reading, although it recognized that the task
of defining who may be considered a “lawful representative” is a legislative and
judicial chore, S.Rep.No. 106-254 at 39. It also emphasizes the importance of
preventing the designation of representatives whose interests may be in conflict with
those of the victim.139 Finally, it gives no hint of whether indigent victims are
entitled to appointment of counsel to serve as the victim’s representative, because
the Committee believed dispositive language later in the section that precluded a
claim for damages.140

137

E.g., OHIO CONST. art.I, §10a(“This section . . . does not abridge any other right
guaranteed by the Constitutio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL30525. Public record. Not legal advice.