Victims' Rights Amendment: A Proposal to Amend the United States Constitution in the 108th Congress

Congressional research reportApr 16, 2004

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Victims’ Rights Amendment:

A Proposal to Amend the United States

Constitution in the 108th Congress

Updated April 16, 2004

name redacted

Senior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

Victims’ Rights Amendment: A Proposal to Amend the

United States Constitution in the 108th Congress

Summary

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

constitutions. S.J.Res. 1/H.J.Res. 48/H.J.Res. 10 would add a victims’ rights

amendment to the United States Constitution. The amendment is identical to

proposals offered in the 107th Congress (S.J.Res. 35/H.J.Res. 88/H.J.Res. 91) and has

been endorsed by the President. Similar proposals date back to the 104th Congress.

The proposed amendment grants the victims of state and federal violent crimes

the right:

- to reasonable and timely notice of public proceedings relating to the crime;

- to reasonable and timely notice of the release or escape of the accused;

- not to be excluded from such public proceedings;

- reasonably to be heard at public release, plea, sentencing, reprieve, and pardon

proceedings; and

- to adjudicative decisions that give due consideration to victims’ interests in

their safety, in avoiding unreasonable delay and to consideration of their just

and timely claims for restitution from the offender.

The rights may not be restricted except to the extent dictated by a substantial

interest in public safety or the administration of criminal justice or by compelling

necessity. Only victims and their representatives may enforce the rights, but they

may not do so through a claim for damages or request to reopen a completed trial.

Congress is otherwise empowered to enact legislation for the amendment’s

enforcement.

The proposed amendment is the product of efforts to reconcile victims’ rights,

the constitutional rights of defendants, and prosecutorial prerogatives. The hearings

on current and past proposals and three Senate Judiciary Committee reports (S.Rept.

108-191; S.Rept. 105-409; S.Rept. 106-254) provide insight as to the intent of

language used and proposed language implicitly rejected.

Proponents and their critics disagree over the need for the proposed

Amendment, its meaning, its propriety, its costs, and its effect on federalism.

This report appears in abridged form under the title Victims’ Rights Amendment:

A Sketch of a Proposal in the 108th Congress to Amend the United States

Constitution, CRS Report RS21434.

Contents

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

Text of the Proposed Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Need for Greater Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Need for Uniformity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Restoration of Victims’ Historic Rights . . . . . . . . . . . . . . . . . . . . . . . . 7

Inadequacy of State Law Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Inadequacy of Federal Statutory Alternatives . . . . . . . . . . . . . . . . . . . 10

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Preemptive and Amending Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Victims’ Rights v. Defendants’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Past Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Victims of Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Not to Be Excluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

To Be Heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Victim Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Legislative Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Contemporary Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Past Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Amendment in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Victims’ Rights Amendment:

A Proposal to Amend the United States

Constitution in the 108th Congress

Introduction

A victims’ rights amendment to the United States Constitution has been

introduced in three essentially identically worded resolutions in the 108th Congress:

S.J.Res. 1, H.J.Res. 48, and H.J.Res. 10.1 The Amendment is one which the

President has endorsed both in this Congress and the 107th Congress.2 Comparable

provisions different in word if not in spirit were offered in earlier Congresses.3 This

S.J.Res. 1 and H.J.Res. 48 are identical. H.J.Res. 10 differs only in that S.J.Res. 1/H.J.Res.

48 places the provision for effective date of the amendment following ratification in section

5 and H.J.Res. 10 places it in the enacting clause. S.J.Res. 1(Sens. Kyl and Feinstein)

and H.J.Res. 10 (Rep. Royce) were introduced on the first day of the session; H.J.Res. 48

(Rep. Chabot) on April 10, 2003.

This report refers to the resolutions collectively (and the identical resolutions in the

107th Congress) as the Amendment and to resolutions from earlier Congresses as either the

proposal or the proposals. The particulars of any bills to establish greater victims’ rights by

statute, e.g., S. 805 (108th Congress), are beyond the scope of this report.

“I announce my support for the bipartisan Crime Victims’ Rights amendment to the

Constitution of the United States,” President Bush, President Calls for Crime Victims’

Rights Amendment (April 16, 2000), available at [http://www.whitehouse.gov/news/releases

/2002/04/20002416-1.html]; President Bush, National Crime Victims’ Rights Week, 2003:

A Proclamation, available at [http://www.ojp.usdoj.gov/ovc/ncvrw/2003/bushproc.htm].

See, in the 104th Congress: S.J.Res. 52, S.J.Res. 65, H.J.Res. 173, and H.J.Res. 174; 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) – in 105th Congress: S.J.Res. 6, S.J.Res. 44, H.J.Res. 71, and H.J.Res. 129;

S.Rept. 105-409 (1998); 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) – in the

106th Congress: S.J.Res. 3, and H.J.Res. 64; S.Rept. 106-254 (2000); A Proposed

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

the Judiciary (Senate Hearing III), 106th Cong., 1st Sess. (1999), and H.J.Res. 64,

Proposing An Amendment to the Constitution of the United States to Protect the Rights of

Crime Victims: Hearing Before the Subcommittee on the Constitution of the House Judiciary

Comm., 106th Cong., 2d Sess. (2000) (House Hearing III), available at,

[http://www.house.gov/judiciary]; – in the 107th Congress: S.J.Res. 35, H.J.Res. 88, and

H.J.Res. 91; Federal Victims Rights Amendment: Hearing Before the Subcomm. on the

Constitution of the House Comm. on the Judiciary, 107th Cong., 2d Sess. (2002)(House

(continued...)

CRS-2

is a brief discussion of the content of the Amendment and of some of the issues it

raises.4

Text of the Proposed Amendment

Resolved by the Senate and House of Representatives of the United States of

America in Congress assembled, (two-thirds of each House concurring therein), That

the following article is proposed as an amendment to the Constitution of the United

States, which shall be valid to all intents and purposes as part of the Constitution

when ratified by the legislatures of three-fourths of the several States, and which

shall take effect on the 180th day after ratification of this article:5

Article–

SECTION 1. The rights of victims of violent crime, being capable of protection

without denying the constitutional rights of those accused of victimizing them,

are hereby established and shall not be denied by any State or the United States

and may be restricted only as provided in this article.

SECTION 2. A victim of violent crime shall have the right to reasonable and

timely notice of any public proceeding involving the crime and of any release

or escape of the accused; the rights not to be excluded from such public

proceeding and reasonably to be heard at public release, plea, sentencing,

reprieve, and pardon proceedings; and the right to adjudicative decisions that

duly consider the victim’s safety, interest in avoiding unreasonable delay, and

just and timely claims to restitution from the offender. These rights shall not be

restricted except when and to the degree dictated by a substantial interest in

public safety or the administration of criminal justice, or by compelling

necessity.

(...continued)

Hearing IV), available at, [http://www.house.gov/judiciary]; S.J.Res. 35-The Crime Victims’

Rights Amendment: Hearing Before the Subcomm. on Constitution, Federalism, and

Property Rights of the Senate Comm. on the Judiciary, 107th Cong., 2d Sess. (2002)(Senate

Hearing IV), available at [http://judiciary.senate.gov]; and – in the 108th Congress: H.J.Res.

10, H.J.Res. 48, S.J.Res. 1; S.Rept. 108-191; Crime Victims Constitutional Amendment:

Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary ,

108th Cong., 1st Sess. (2003)(House Hearing V), available at, [http://www.house. gov/

judiciary]; A Proposed Constitutional Amendment to Protect Crime Victims, S.J.Res. 1:

Hearing Before the Senate Comm. on the Judiciary; 108th Cong., 1st Sess. (2003)(Senate

Hearing V), available at [http://judiciary.senate.gov]. At this writing pagination for the

Senate hearings during the 108th Congress is not yet available.

For a more extensive background discussion see, Victims’ Rights Amendment: Background

& Issues Associated With Proposals to Amend the United States Constitution, CRS Report

97-735 (April 2000); for an analysis of proposals made during the 106th Congress see,

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

Congress, CRS Report RL30525 (May 12, 2000).

The language in italics at the end of the enacting clause is found only in H.J.Res. 10.

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SECTION 3. Nothing in this article shall be construed to provide grounds for

a new trial or to authorize any claim for damages. Only the victim or the

victim’s lawful representative may assert the rights established by this article,

and no person accused of the crime may obtain any form of relief hereunder.

SECTION 4. The Congress shall have the power to enforce by appropriate

legislation this article. Nothing in this article shall affect the President’s

authority to grant reprieves or pardons.

SECTION 5. This article shall be inoperative unless it shall have been ratified

as an amendment to the Constitution by the legislatures of three-fourths of the

several States within seven years from the date of its submission to the States

by the Congress. This article shall take effect on the 180th day after the date of

its ratification.6

Analysis

Purpose

Proponents of the Amendment have articulated five reasons for passage of the

Amendment:

a constitutional amendment will balance the scales of justice;

a constitutional amendment will fix the patchwork of victims’ rights

laws;

a constitutional amendment will restore rights that existed when the

Constitution was written;

a constitutional amendment is necessary because state law is

insufficient; and

a constitutional amendment is necessary because federal statutory

law is insufficient, 149 Cong.Rec. S82-4 (daily ed. Jan. 7, 2003).

The Need for Greater Balance.

“The scales of Justice are imbalanced. The U.S. Constitution, mainly

through amendments, grants those accused of crime many constitutional rights,

such as a speedy trial, a jury trial, counsel, the right against self-incrimination,

the right to be free from unreasonable searches and seizures, the right to

subpoena witnesses, the right to confront witnesses, and the right to due process

under law.

“The Constitution, however, guarantees no rights to crime victims. For

example, victims have no right to be present, no right to be informed of hearings,

This last italicized sentence appears only in S.J.Res. 1/H.J.Res. 48.

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no right to be heard at sentencing or at a parole hearing, no right to insist on

reasonable conditions of release to protect the victim, no right to restitution, no

right to challenge unending delays in the disposition of their case, and no right

to be told if they might be in danger from release or escape of their attacker.

This lack of rights for crime victims has caused many victims and their families

to suffer twice, once at the hands of the criminal, and again at the hands of the

justice system that fails to protect them. The Crime Victims’ Rights Amendment

would bring balance to the judicial system by giving victims of violent crime the

rights to be informed, present, and heard at critical stages throughout their

ordeal,” 149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003).7

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.”8

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

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

1950's and 1960's. It has also served as one of the early catalysts for the victims’

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

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

greater balance between the rights of victim and those of the defendant.9

See also, 149 Cong.Rec. S83 (remarks of Sen. Feinstein)(daily ed. Jan. 7, 2003)

(“Currently, while criminal defendants have almost two dozen separate constitutional rights,

fifteen of them provided by amendments to the U.S. Constitution, there is not a single word

in the Constitution about crime victims. These rights trump the statutory and state

constitutional rights of crime victims because the U.S. Constitution is the supreme law of

the land. To level the playing field, crime victims need rights in the U.S. Constitution. In the

event of a conflict between a victim’s and a defendant’s rights, the court will be able to

balance those rights and determine which party has the most compelling argument”).

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

House Hearing V at 1-2 (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.

Thus, the U.S. Constitution essentially serves as a trump card for those accused of

committing crimes in order to keep victims from participating in their prosecution, or even

just sitting in the courtroom during trial”); 149 Cong.Rec. S82 (daily ed. Jan. 7,

2003)(remarks of Sen. Kyl)(“[S]tatutory 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”); 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).

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Some might suggest that victims already enjoy equal constitutional rights with

the accused.10 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.11

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

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

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

victim benefits when the guilty are.12

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.”13 In the same vein, one of the motives

Senate Hearing IV at 65 (statement of Ms. Arwen Bird)(“As survivors of crime who are

also United States citizens, we benefit from the fundamental protections that are guaranteed

through our state and federal constitutions. The federal Bill of Rights ensures certain

protections for all citizens; this includes those who have been victimized by crime”).

Cf., Carter, When Victims Happen to Be Black, 97 YALE LAW JOURNAL 420 (1988)

(discussing the case of Bernhard Goetz charged with attempted murder and assault and

ultimately convicted for possession of an unlicenced handgun following a subway

confrontation with muggers); S.Rept. 108-191 at 70 (minority views of Sens. Leahy,

Kennedy, Kohl, Feingold, Schumer, and Durbin (minority views))(“the concept of balance

often makes little sense in the context of a criminal proceeding. It assumes that we can

identify the victim at the outset of every case, but this may not be possible. In some

cases–as where the defendant claims that she acted in self-defense–identifying the victim

is what the trial is all about”); see also, S.Rept. 106-254, at 63 (minority views of Sens.

Leahy, Kennedy, Kohl, and Feingold).

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.

Senate Hearing IV at 134-35(statement of Mr. Roger Pilon)(“[P]ronents of this

amendment often speak of a constitutional ‘imbalance’ between the rights of defendants and

the rights of victims. The Constitution lists numerous rights of defendants, they say, but is

silent regarding victims. There is a fundamental reason for that ‘imbalance.’ It has to do

with the very purpose and structure of the Constitution. . . . The federal government had

only those powers that the people, through the Constitution, had delegated to it, as

enumerated in the document. And the exercise of that power was further restrained by t he

rights of the individual, enumerated and unenumerated alike. . . . [S]uch benefits as the

Constitution does confer in the criminal law context arise entirely because the government

is the moving party in an adversarial matter. The benefits or rights of due process or trial

by jury, for example arise only because the government has placed the accused in an

adversarial relationship, at which time such rights kick in to limit the means government

may employ. The situation is entirely different with crime victims. They stand in no

adversarial relationship with the government such that the means available to the

government must be restrained for their protection”); see also, S.Rept. 108-191 at 70

(minority views) (“the balance argument mistakes the fundamental reason for elevating

rights to the constitutional level. The rights enshrined in the United States Constitution are

designed to protect politically weak and insular minorities against governmental

overreaching or abuse, not to protect individuals from each other. When the government

unleashes its prosecutorial power against an accused, the accused faces the specter of losing

(continued...)

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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”,

“accused”, “defendant”, and “guilty” synonymous terms. No process is too quick;

no punishment sufficiently severe; acquittals are an injustice.14

The Need for Uniformity.

“Eighteen states lack state constitutional victims’ rights amendments. And

the 32 existing state victims’ rights amendments differ from each other. Also

virtually every state has statutory protections for victims, but these vary

considerably across the country. Only a federal constitutional amendment can

ensure a uniform national floor for victims’ rights.” 149 Cong.Rec. S83 (remarks

of Sen. Feinstein)(daily ed. Jan. 7, 2003).15

(...continued)

his liberty, property, or even his life. The few and limited rights of the accused in the

Constitution are there precisely because it will often be unpopular to enforce them so that

even when we are afraid of a rising tide of crime, we will be protected against our own

impulse to take shortcuts that could sacrifice a fair trial of the accused and increase the risk

of wrongful conviction. In contrast, there is no need to grant constitutional protections to

a class of citizens that commands virtually universal sympathy and substantial political

power. In the words of Bruce Fein . . . ‘[C]rime victims have no difficulty in making their

voices heard in the corridors of power; they do not need protection from the majoritarian

political process, in contrast to criminal defendants whose popularity characteristically ranks

with of General William Tecumseh Sherman in Atlanta, Georgia’”); see also, S.Rept. 106254 at 63-4 (minority views of Sens. Leahy, Kennedy, Kohl, and Feingold); Cardenas, The

Crime Victim in the Prosecutorial Process, 9 HARVARD JOURNAL OF LAW AND PUBLIC

POLICY 357, 381 (1986); Dolliver, Victims’ Rights Constitutional Amendment: A Bad Idea

Whose Time Should Not Come, 34 WAYNE LAW REVIEW 87, 91 (1987).

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

REVIEW 517; King, Why a Victims’ Rights Constitutional Amendment Is a Bad Idea:

Practical Experiences from Crime Victims, 68 UNIVERSITY OF CINCINNATI LAW REVIEW

357, 362 (2000).

Thirty-three states have added victims’ rights amendments of varying stripes to their

state constitutions, 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. (Perhaps because of its modesty, i.e., it only guarantees

restitution, the Montana constitutional amendment is frequently not counted among the state

victims’ rights amendments).

The remaining states and the federal government have enacted similarly individualistic

general victims’ rights statutes, 42 U.S.C. 10605 to 10607; 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(continued...)

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Although seldom expressed, the concern is 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 respond 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.16

Uniformity obviously requires compliance to a single standard imposed by an

amendment to the United States Constitution. Some victims’ advocates, however,

see the Amendment as providing a constitutional minimum beyond which Congress

and the states would remain free to establish more exacting victims’ rights, hence the

reference to a “uniform national floor.”17 Skeptics may find that this does not

eliminate the patchwork; it simply changes it.18

Restoration of Victims’ Historic Rights.

“It is a little know[n] fact that at the time the Constitution was drafted, it

was standard practice for victims–not public prosecutors–to prosecute criminal

cases. Because victims were parties to most criminal cases, they enjoyed the

basic rights to notice, to be present, and be heard. Hence, it is not surprising that

the Constitution does not mention victims.

“Now, of course, it is extremely rare for a victim to undertake a criminal

prosecution. Thus, victims have none of the basic procedural rights they used to

enjoy. Victims should receive some of the modest notice and participation rights

they enjoyed at the time that the Constitution was drafted,” 149 Cong.Rec. S83

(remarks of Sen. Feinstein)(daily ed. Jan. 7, 2003).

(...continued)

16; HAW.REV.STAT. §§801D-1 to 801D-7; IOWA CODE ANN. §§915.1 to 915.100;

KY.REV.STAT.ANN. §§421.500 to 421.576; 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 §§12.1-3401 to 12.1-34-05; PA.STAT.ANN. tit.18 §11.201; S.D.COD.LAWS ANN. §§23A-28C-1 to 23A28C-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 jurisdiction has victims’ rights accommodations scattered throughout its

code.

S.Rept. 105-409 at 48 (minority views of Sen. Thompson); cf., Senate Hearing II at 87

(testimony of James E. Doyle, Wisconsin Attorney General).

149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003)(“a federal amendment

would establish a basic floor of crime victims’ rights for all Americans, just as the federal

Constitution provides for the accused”).

Mosteller & Powell, With Disdain for the Constitutional Craft: The Proposed Victims’

Rights Amendment, 78 NORTH CAROLINA LAW REVIEW 371, 377-81 (2000)(criticizing

proposals in the 106th Congress).

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Opponents suggest that the notice and participation rights enjoyed at the time

the Constitution was drafted were modest indeed, a far cry from those of the

proposal. In its infancy English criminal law incorporated many of the features of

private justice: outlawry, blood feuds, private compensation,19 and trial by battle,20

to mention a few. Several of these had disappeared before colonization of the New

World; others never really took hold here; still others, private criminal prosecutions

among them, disappeared over time. Although the laws of the several American

colonies were not nearly as homogenous regardless of time or place as we may often

believe, it seems clear that well before the founding of the Republic criminal

prosecutions were almost always conducted by a public official.21 United States

“On the eve of the Norman Conquest what we may call the criminal law of England (but

it was also the law of torts or civil wrongs) contained four elements which deserve attention;

its past history had in the main consisted of the varying relations between them. We have

to speak of outlawry, of the blood-feud, of the tariffs of wer and bot and wite, of punishment

in life and limb . . . . [T]he evidence which comes to us from England and elsewhere invites

us to think of a time when law was weak, and its weakness was displayed by a ready

recourse to outlawry. It could not measure its blows; he who defied it was outside its

sphere; he was outlaw. He who breaks the law has gone to war with the community; the

community goes to war with him. It is the right and duty of every man to pursue him, to

ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a

wild beast he is; not merely is he a friendless man, he is a wolf. . . .

“Without actively going to war with the offender, the law may leave him unprotected

against those who have suffered by his misdeed; it may concede to them the right to revenge

themselves. The slaughter of a member of one by a member of another kin has been the sign

for a blood-feud. The injured kin would avenge its wrong not merely on the person of the

slayer, but on his belongings. It would have life or lives for life, for all lives were not of

equal value; six ceorls must perish to balance the death of one thegn. . . .

“Outlawry and blood-feud alike have been retiring before a system of pecuniary

compositions, of bot: that is, of betterment. From the very beginning, if such a phrase be

permissible, some small offences could be paid for; they were emendable. The offender

could buy back the peace that he had broken. To do this he had to settle not only with the

injured person but also with the king: he must make bot to the injured and pay a wite to the

king. A complicated tariff was elaborated. Every kind of blow or wound given to every

kind of person had its price, and much of the jurisprudence of the time must have consisted

of a knowledge of these pre-appointed prices. Gradually more and more offences became

emendable; outlawry remained for those would not or could not pay,” II POLLOCK &

MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 449-51 (2d ed.

1898).

“Since the Norman Conquest there have been three modes of trial in criminal cases,

namely, trial by ordeal, trial by battle, and trial by jury; and there have been also three

modes of accusation, namely, appeal or accusation by a private person, indictment or

accusation by a grand jury, and informations which are accusations either by the AttorneyGeneral or by the Master of the Crown Office,” I STEPHEN, HISTORY OF THE CRIMINAL LAW

OF ENGLAND 244 (1883).

Senate Hearing IV at 2 (statement of Sen. Feingold)(“I think it is fairly well established

that public prosecutions were the norm when the Constitution was written and adopted”).

As the Wickersham Commission observed, “[I]n the first years of the eighteenth century,

the Colonies began to do away with private prosecutions and set public prosecutors. The

first statute was enacted in Connecticut in 1704 . . . . [T]he example of Connecticut was

soon followed in other Colonies. . . .By the end of the century, official prosecutions by

(continued...)

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Attorneys or their predecessors, United States District Attorneys, have prosecuted

federal crimes from the beginning, 1 Stat. 92 (1789). Private prosecutions were

permitted in some states, but even in such places they appear to have been unusual.22

Moreover, private prosecution brought with it but a meager portion of the

rights today associated with victims’ rights. A victim might hire a private prosecutor

and might expect notice of the proceedings and their outcome as well as presentation

of his views. Yet there has been no suggestion that the practice gave the victim an

enforceable right to be present or to be heard other than through his or her attorney.

Inadequacy of State Law Alternatives.

“These state [victims’ rights] measures have helped protect crime victims;

but they are inadequate for two reasons. First, each amendment is different, and

not all states have provided protection to victims. . . . Second, 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.” 149 Cong.Rec. S82 (remarks of Sen. Kyl)

(daily ed. Jan. 7, 2003).23

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

dispute. Proponents find present law wanting.24 Opponents find present law

(...continued)

public prosecutors had become established as the American system,” NATIONAL

COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT: REPORT ON PROSECUTION 6-7

(1931); see also, S.Rept. 108-191 at 68 (“Most American colonies followed the English

model of private prosecutions in the 17th century but, as one distinguished scholar has

written, that system ‘proved even more poorly suited to the needs of the new society than

to the older one.’ These colonies shifted to a system of public prosecutions because they

viewed the system of private prosecutions as ‘inefficient, elitist, and sometimes

vindictive’”); Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARVARD

JOURNAL OF LAW AND PUBLIC POLICY 357, 371 (1986)(“Whatever its derivation, the

American system of public prosecution was fairly well established by the time of the

American Revolution. This meant that local district attorneys were given a virtual

monopoly over the power to prosecute. Crime victims were no longer allowed to manage

and control the prosecution of their crimes; rather, the victim was to serve as a piece of

evidence to be used by the state to obtain a conviction”).

The most commonly cited examples of private prosecutions involve dicta in appellate

decisions and a few statutory provisions which allowed individuals to hire private attorneys

to assist public officials in a public prosecution under some circumstances, e.g., McDonald,

Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13

AMERICAN CRIMINAL LAW REVIEW 649, 665 n.78 (1976).

See also, 149 Cong.Rec. S83 (daily ed. Jan. 7, 2003)(“State victims’ rights laws lacking

the force of federal constitutional law are often given short shrift. A Justice Departmentsponsored study and other studies have found that, even in states with strong legal

protections for victims’ rights, many victims are denied those rights. The studies have also

found that statutes are insufficient to guarantee victims’ rights. Only a federal constitutional

amendment can ensure that crime victims receive the rights they are due”).

House Hearing III (statement of Rep. Chabot)(“You might then ask why a constitutional

(continued...)

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workable and fear an amendment would make matters worse.25 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.

Inadequacy of Federal Statutory Alternatives.

“The leading statutory alternative to the Victims’ Rights Amendment would

only directly cover certain violent crimes prosecuted in Federal court. Thus, it

would slight more than 99 percent of victims of violent crime. We should

acknowledge that Federal statutes have been tried and found wanting. It is time

for us to amend the U.S. Constitution.

“The Oklahoma City bombing case offers another reason why we need a

constitutional amendment. This case shows how even the strongest Federal

statute is too weak to protect victims in the face of a defendant’s constitutional

rights. In that case, two Federal victims’ statutes were not enough to give victims

of the bombing a clear right to watch the trial and still testify at the

sentencing–even though one of the statutes was passed with the specific purpose

(...continued)

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”); House Hearing IV at 41

(statement of Roberta Roper, National Victims’ Constitutional Amendment Network)(“And

while great progress has been made in the passage of good laws, both on the state and

federal level and constitutional amendments passed in 33 states, the sad reality is that

victims’ rights continue to be denied. None of these state or federal laws are able to match

the constitutionally protected rights of offenders. The result is that crime victims remain

second class citizens in our nation’s system of justice”); see also, 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. 1996); Senate Hearing II at 12 (statement of Prof. Laurence H. Tribe,

Harvard University Law School); United States Department of Justice, Office of Justice

Programs, Office for Victims of Crime, New Directions from the Field: Victims’ Rights and

Services for the 21st Century 11 (1998)(“In the mid-1990s, the National Victim Center,

under a grant from the National Institute of Justice, studied implementation of victim rights

laws in four states. Two states were selected because they had strong state statutory and

constitutional protection of victims’ rights, and two were selected because they had weaker

protection. The study surveyed more than 1,300 crime victims and was the largest of its

kind ever conducted. It found that many victims were still being denied their rights, even

in states with strong legal protection”).

House Hearing II at 143-45 (statement of Ellen Greenless, President National Legal Aid

and Defender Association); Senate Hearing II at 99 (statement of Robert J. Humphreys,

President of the Virginia Association of Commonwealth’s Attorneys); Senate Hearing II at

162-63 (statement of the National Clearinghouse for the Defense of Battered Women).

CRS-11

of allowing the victims to do just that,” 149 Cong.Rec. S84 (remarks of Sen.

Feinstein)(daily ed. Jan. 7, 2003).26

Existing federal law enjoins federal officials to make “their best efforts” to

ensure that crime victims are accorded:

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

dignity and privacy.

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

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

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

offense, unless the court determines that testimony by the victim would be

materially affected if the victim heard other testimony at trial.

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

(6) The right to restitution.

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

imprisonment, and release of the offender. 42 U.S.C. 10606(b).

Section 10606, however, “does not create a cause of action or defense in favor

of any person arising out of the failure to accord to a victim [these] rights,” 42 U.S.C.

10606(c).

In other victim related provisions, federal law establishes public safety and the

safety of any individual (including victims) as required considerations before bail is

granted, 18 U.S.C. 3142(b). It no longer bars victims from federal criminal

proceedings simply because they are potential witnesses, 18 U.S.C. 3510, but their

attendance may bar them from testifying at any subsequent sentencing proceedings

as witnesses.27 It entitles victims of federal property crimes and crimes of violence

to restitution, 18 U.S.C. 3663A, and to present a statement to the court before

sentence is imposed, F.R.Crim.P. 32(c)(3)(E).

Overview

The Amendment is more succinct by design than its predecessors.28 As a

consequence it offers a wider range of interpretative choices. In general terms, it

House Hearing IV at 6 (statement of Rep. Royce) (“So while many states and the federal

government have enacted legal protections for crime victims, those laws have been

insufficient in providing all victims’ rights within the criminal justice system”); id. at 80

(prepared statement of Sen. Kyl)(“Attempts to establish rights by federal or state statute, or

even state constitutional amendment, have proven inadequate, after more than twenty years

of trying”).

United States v. McVeigh, 958 F.Supp.2d 512, 514-15 (D.Colo. 1997).

149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003). The Amendment may

have become more stylish at a cost, see, Senate Hearing IV at 123; House Hearing IV at 51

(statement of James Orenstein)(“while the language of the current bill is more streamlined

and reads more like other constitutional amendments than its predecessor, it achieves such

stylistic improvements at the expense of clarity, which could result in real harm to criminal

prosecutions”).

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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. Official decisions must take

victims’ safety and their interests in avoiding delay and in restitution into account.

Victims have a right to be heard on questions of bail, plea agreements, sentencing,

and pardons. They have a right to be informed of, and not excluded from, crimerelated public proceedings and to be notified of escapes and releases. Congress

enjoys legislative authority to enforce the Amendment, but may restrict victims’

rights only in the name of public safety, the administration of criminal justice, or

compelling necessity.

Preemptive and Amending Impact

The United States Constitution is the supreme law of the land, U.S.Const. Art.

VI, cl.2. When it is said that nothing in victims’ rights edicts created by statute or

state constitution imperils defendants’ rights under the United States Constitution,

that is correct; nothing could. But an amendment to the United States Constitution

stands on different footing. It amends the Constitution. Its very purpose is to make

constitutional that which would otherwise not have been.29 It may subordinate

defendants’ rights to victims’ rights or subordinate victims’ to defendants’ rights. It

may subordinate either, both, or neither to prosecutorial discretion. It may require

any conflicting law or constitutional precept, state or federal, to yield. Even in the

absence of a conflict, it may preempt the field, sweeping away all laws, ordinances,

precedents, and decisions – compatible and incompatible alike – on any matter

touching upon the same subject. Whether it does so or to what extent it does so is

a matter of interpretation. That is, what is its intent? What does it say? What is its

purpose? What does its history tell us?

The questions are most perplexing when an apparent conflict exists between

state and federal law or among the rights and prerogatives of victims, defendants and

prosecutors. The interpretative principles of preemption triggered by an apparent

conflict between state and federal law are fairly well developed. “[P]reemption of

state law [may occur] either by express provision, by implication, or by a conflict

between federal and state law. And yet, despite the variety of these opportunities for

federal preeminence, [the Court has] never assumed lightly that Congress has

derogated state regulation, but instead [has] addressed claims of preemption with the

starting presumption that Congress does not intend to supplant state law. Indeed, in

cases . . . where federal law is said to bar state action in fields of traditional state

regulation, [the Court has] worked on the assumption that the historic police powers

of the states were not to be superseded by the Federal Act unless that was the clear

and manifest purpose of Congress.”30 Conversely, by virtue of the Supremacy

S.Rept. 105-409 at 67 (minority views of Sens. Leahy, Kennedy, and Kohl)(quoting

former Deputy Attorney General Philip Heymann)(“If it is not intended to free the States

and Federal Government from restrictions found in the Bill of Rights – which would be a

reckless tampering with provisions that have served us very well for more than 200 years

– it is unclear what purpose the amendment serves”).

New York Conference of Blue Cross v. Travelers Insurance Co., 514 U.S. 645, 654-55

(continued...)

CRS-13

Clause, where the subject matter is one which the Constitution relegates to the federal

domain, the vitality of state law is dependent upon the largess of Congress and the

Constitution.31

A victims’ rights amendment to the United States Constitution that relegates the

area to the federal domain, confines state authority to that which the amendment

permits or allows Congress to permit. Few advocates have explicitly called for a

“king-of-the-hill” victims’ rights amendment, but the thought seems imbedded in the

complaint that existing law lacks uniformity. How else can universal symmetry be

accomplished but by implementation of a single standard that fills in where preexisting law comes up short and shaves off where its generosity exceeds the

standard? Yet the recent history of the Amendment and proposals indicate that

advocates intended to establish a minimum rather than a uniform standard.32

Questions of the Amendment’s impact on the rights afforded the accused may

be even more difficult to discern. The principles of construction called into play in

the case of a conflict between a victims’ rights amendment and rights established

elsewhere in the Constitution are similar to those used to resolve federal-state

conflicts.

Intent of the drafters is considered paramount, but the courts will make every

effort to reconcile apparent conflicts between constitutional provisions.33 In the case

of unavoidable conflict between provisions of equal dignity, the latest in time

prevails.34 If there is an unavoidable conflict between a right granted by an adopted

victims’ rights amendment and some other portion of the Constitution, the most

recently adopted provision will prevail. As discussed below, proposals in the 106th

Congress came to naught over the issue of defendants’ versus victims’ rights.35

(...continued)

(1995).

United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-802 (1995).

The sponsors of the Amendment in the Senate, both refer to it as establishing “a floor,”

149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003); id. at S83 (remarks of Sen.

Feinstein); the committee reports both most recent and in the past express a similar view,

S.Rept. 108-191, at 32 (“[M]any states have already extended rights to victims of such

offenses and the amendment in no way restricts such rights. In other words, the amendment

sets a national ‘floor’ for the protection of victims’ rights, not any sort of ‘ceiling’”); see

also, S.Rept. 106-254 at 29; S.Rept. 105-409 at 24; Senate Hearing V (statement of

Assistant Attorney General Viet D. Dinh (“The proposed amendment respects the role of

State and local governments because it does not bar them from providing additional or

broader rights to victims. Instead, it provides a floor rather than a ceiling of the rights to be

afforded to victims of crime”); but see, House Hearing V at 2 (statement of Rep.

Chabot)(“Only an amendment to the Constitution can establish uniformity in the criminal

justice system and ensure victims receive the justice they deserve”).

Cf., Vimar Seguros Y Reasdeguros v. Sky Reefer, 515 U.S. 528, 533 (1995).

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

“This issue goes down–let me be very candid–on one phrase. That one phrase is the

(continued...)

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Victims’ Rights v. Defendants’ Rights

Defendants’ rights and prosecutors’ prerogatives have been the twin Achilles’

heels36 of past victims’ rights proposals. The challenge has been to strike a balance

between the rights of victims and defendants without impinging on defendants’ rights

or hamstring law enforcement efforts; to deny defendants’ rights trump status without

denying the defendants their rights or jeopardizing prosecutorial prerogatives.

Contemporary Practices.

The victims’ rights amendments in a few state constitutions concede that they

may not be construed to diminish the rights of the accused.37 Most rights that the

United States Constitution guarantees the accused are binding on the states38 and thus

beyond limitation by state constitutional amendment in any event.

Past Practices.

Until the Amendment in its present form first appeared in the 107th Congress,

none of the proposals addressed the resolution of conflicts between the constitutional

rights of defendants and the rights created in the Amendment. During Senate

Judiciary Committee consideration of a proposal in the 108th and 106th Congresses,

a modification was offered and defeated that would have provided that, “Nothing in

(...continued)

addition of language that would say nothing in this Constitution would abridge the right of

a defendant as provided by this Constitution.

“That is a paraphrase of what it is.

“The Department of Justice insists on that language. We will not get administration

support, I believe, without that language. The victims movement believes they would not

have sufficient standing in these rights to really assert them in a meaningful way unless they

were able to be balanced against the rights of the defendant,” 146 Cong.Rec. S2977 (daily

ed. April 17, 2000)(remarks of Sen. Feinstein).

In Greek mythology, Achilles’ mother sought to make her infant son immortal by holding

him by the heels and dipping him in the River Styx. Achilles perished during the siege of

Troy when Paris’ arrow found Achilles’ only vulnerable spot, the heel which his mother’s

hold had shielded from the immortalizing bath , Achilles, 1 ENCYCLOPEDIA AMERICANA 103

(2001 ed.).

E.g., ALA.CONST., Amend. 557 (“to the extent that these rights do not interfere with the

constitutional rights of the person accused of committing the crime”); see also, FLA.CONST.

art.I, §16(b); IND.CONST. art.1, §13; OHIO CONST. art.I, §10a; ORE. CONST. art. I, §24;

VA.CONST. art.I, §8-A; WIS. CONST. art.I, §9m.

E.g., In re Oliver, 333 U.S. 257 (1948)(public trial); Klopfer v. North Carolina, 386 U.S.

213 (1967)(speedy trial); Duncan v. Louisiana, 391 U.S. 145 (1968)(jury trial); Irvin v.

Dowd, 366 U.S. 717 (1961)(impartial jury); Pointer v. Texas, 380 U.S. 400

(1968)(confrontation); Powell v. Alabama, 287 U.S. 45 (1932)(right to counsel); Gideon v.

Wainwright, 372 U.S. 335 (1963)(indigent’s right to appointed counsel); Benton v.

Maryland, 395 U.S. 784 (1969)(double jeopardy); Malloy v. Hogan, 378 U.S. 1 (1964)(selfincrimination); In re Winship, 397 U.S. 358 (1970)(proof beyond a reasonable doubt);

Furman v. Georgia, 408 U.S. 238 (1972)(cruel and unusual punishment); Kentucky v.

Stincer, 482 U.S. 730 (1987)(present at all critical stages of proceedings).

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this article shall limit any right of the accused which may be provided by this

Constitution,” S.Rept. 108-191, at 44; S.Rept. 106-254 at 43.

Amendment in the 108th Congress.

Section 1: The rights of victims of violent crime, being capable of protection

without denying the constitutional rights of those accused of victimizing them,

are hereby established and shall not be denied by any State or the United States

and may be restricted only as provided in this article.

Past proposals contained no mention of the rights of the accused. Consistent

with the past, this preamble may represent no more than the announcement of an

article of faith. If so, in cases of unavoidable conflict the rights of the victim being

later in time would always trump the rights of the accused. Alternatively, it may

limit the rights protected by the Amendment to those that do not intrude upon the

rights of the accused, that is, in cases of unavoidable conflict the rights of the accused

would always trump the rights of the victim. Which reading, if either, is correct?

The Amendment’s remaining text offers few clues.

The style is reminiscent of the Second Amendment,39 but the similarities are not

instructive. The Supreme Court has rarely construed the Second Amendment.

Moreover the relationship between preambletory clause and the substance of the

section are not the same. The Second Amendment states that the right to bear arms

may not be infringed because a well regulated militia is necessary to the security of

a free state. The Amendment states that victims’ rights are established and may not

be denied because they need not conflict with the rights of the accused. The Second

Amendment speaks of a rationale; the Amendment of an assurance of compatibility.

The statement of Professor Tribe, who helped draft the Amendment, seems to

favor an accused-rights-or-prosecutor’s-discretion-trumps-victims-rights solution:

“How best to protect that right [of victims] without compromising either the

fundamental rights of the accused or the important prerogatives of the prosecution

is not always a simple matter, but I think your final working draft of April 13, 2002

resolves that problem in a thoughtful and sensitive way . . . That you achieved such

conciseness while fully protecting defendant’s rights and accommodating the

legitimate concerns that have been voiced about prosecutorial power and presidential

authority is no mean feat,” 149 Cong.Rec. S85 (daily ed. Jan. 7, 2003)(letter from

Laurence H. Tribe to Senators Dianne Feinstein and Jon Kyl). Victims’ rights appear

to come in third, if the object was to protect victims’ rights without compromising

prosecutorial prerogatives or the rights of the accused. But this is the status quo from

the perspective of the Amendment’s sponsors; it is what the Amendment seeks to

change. It is a construction seemingly at odds with the purpose for the Amendment.

On the other hand, hearing witnesses offered explanations echoed in the

Committee report under which prosecutorial prerogatives appear to come in a distant

third:

“A well regulated Militia, being necessary to the security of a free state, the right of the

people to keep and bear arms, shall not be infringed,” U.S.Const. Amend. II.

CRS-16

This preamble, authored by Professor Tribe, establishes two important

principles about the rights established in the amendment: First, they are not

intended to deny the constitutional rights of the accused, and second, they do not.

The task of balancing rights, in the case of alleged conflict, will fall, as it always

does, to the courts, guided by the constitutional admonition not to deny

constitutional rights to either the victim or the accused. Senate Hearing V;

House Hearing V at 26 (statement of Steven T. Twist)(emphasis in the

original).40

This may be why the restriction clause in section 2 of the Amendment41 is said to

imposes a less demanding standard for law enforcement exceptions than for

defendants’ rights exceptions.42

Victims of Crime

The Amendment creates rights for the victims of violent crime. Its scope turns

on the definition of victim, on the definition of violent crime, and on the jurisdiction

whose proceedings and decisions the Amendment governs. The Amendment’s

authors apparently contemplate basic coverage of individuals and legal entities

victimized by any crime that in its nature or the circumstances of its commission

involves the use or threatened use of physical force against the person or property of

another, S.Rept. 108-191, at 30-2. In addition, they seem to anticipate that Congress

and the states may directly expand this basic coverage for the benefit of victims of

See also, id. at 77 (statement of James Orenstein)(“Much of the language adopted in

S.J.Res. 3 to address law enforcement concerns has been changed or deleted in the current

version. . . . Thus, for example . . . the remedies provision of the current bill no longer

contains an explicit prohibition – as the previous version of the Amendment did – forbidding

a court from curing a violation of a victim’s participatory rights by staying or continuing a

trial, reopening a proceeding or invalidating a ruling. If the current version of the

Amendment is ratified, courts interpreting it might rule that this was a deliberate change and

that any ambiguity on the issue must therefore be resolved in favor of allowing such

remedies – remedies that could well harm the prosecution’s efforts to convict an offender”);

S.Rept. 108-191, at 30 (“This preamble establishes two important principles about the rights

established in the amendment: First, they are not intended to deny the constitutional rights

of the accused, and second, they do not, in fact , deny those rights. The task of balancing

rights, in the case of alleged conflict, will fall, as it always does, to the courts, guided by the

constitutional admonition not to deny constitutional rights to either the victim or the

accused.”). Note that section 2's restrictions in the name of public safety, the administration

of criminal justice, and compelling necessities afford the prosecution some shelter from the

assertion of victims’ rights.

“These rights shall not be restricted except when and to the degree dictated by a

substantial interest in public safety or the administration of criminal justice, or by

compelling necessity.”

S.Rept. 108-191 at 41-2 (“The Committee-reported amendment provides that restrictions

are permitted for a ‘substantial interest’ in public safety or the administration of criminal

justice. In choosing this standard . . . the Committee seeks to provide adequate procedures

for law enforcement and the courts while ensuring that the restriction does not swallow the

rights. . . . In all other contexts only a ‘compelling’ interest . . . will operate to limit the right.

The Committee stresses that defendants’ constitutional rights may well mee+t this standard

in many cases”).

CRS-17

certain nonviolent crimes and indirectly expand it by the conduct they subsequent

decide to outlaw or legalize, id. The Amendment in section 2 seems to concede

continuing legislative authority – at least for Congress and perhaps for the states –

to curtail this basic coverage “where and to the degree dictated by a substantial

interest in public safety or the administration of criminal justice, or by compelling

necessity.”

On its face the Amendment would appear to apply with respect to proceedings

involving a crime – federal, state, territorial or tribal; civilian or military – but

probably not with respect to juvenile proceedings under any of those authorities.

Contemporary Practices.

Who is a Victim.

In common parlance, the concept of victim is fairly broad. It encompasses the

sympathetic and not so sympathetic 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;43 the defendant who is acquitted or whose

conviction is overturned;44 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 be listed among the victims.45 The various “Megan’s Law” efforts seem to

suggest that at least in the public mind, the concept of victim also may encompass

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).

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

he had served ten 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 II at 90 (statement of Elisabeth A. Semel on behalf of the National

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

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

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

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

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

UNIVERSITY LAW REVIEW 187 (1995).

CRS-18

potential victims under some circumstances.46 The governmental entities that must

bear the cost of investigating and prosecuting crime could legitimately be considered

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.

Most state constitutional amendments do not define the classes of crime victims

for whom they establish rights.47 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.48 Under some victims’ rights statutes, “victims” may be

limited to the victims of felonies or of specific violent crimes.49 In several instances,

states have modified their definitions of “victim” to exclude certain classes of

victims, e.g., prisoners, codefendants, and the like.50

Rights in What System.

The question of what constitutes a “crime” for purposes of victims’ rights is one

of several parts. What type of crimes does it cover? Does the Amendment cover

state as well as federal crimes? Does it cover crimes proscribed by the laws of the

District of Columbia, or of Puerto Rico, or of any of the other territories or

possessions of the United States?51 Does the Amendment exempt certain victims

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”).

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.

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 . . .”).

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 means 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 . . .”).

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

This question is especially intriguing with respect to those places where the full panoply

of defendant’s constitutional rights may not be available, see United States v. VerdugoUrquidez, 494 U.S. 259, 268 (1990)(“the global view taken by the Court of Appeals to the

application of the Constitution is also contrary to this Court’s decisions in the Insular Cases,

which held that not every constitutional provision applies to governmental activity even

where the United States has sovereign power. In Dorr, we declared the general rule that in

an unincorporated territory–one not clearly destined for statehood–Congress was not

required to adopt a system of laws which shall include the right of trial by jury, and that the

(continued...)

CRS-19

either because of the character of the victim (e.g., corporate entity, criminally

accused) or the status of the accused (e.g., a juvenile, a Native American, or a

member of the armed forces)? In most jurisdictions, conduct that would be

considered criminal in an adult is considered delinquency (not criminal conduct) in

a juvenile unless the juvenile is tried as an adult. The states are divided over whether

the victims of acts of juvenile delinquency are entitled to the same level of rights as

the victims of the same misconduct when committed by an adult.52

Past Proposals.

Who is a Victim.

The drafters of past victims’ rights proposals have opted for one of three

alternatives: (1) crimes of violence;53 (2) felonies and crimes of violence;54 (3)

crimes of violence and such other crimes as were legislatively designated.55 The vast

majority have created rights for the victims of both state and federal crimes:56

A victim of a crime of violence, as these terms may be defined by law, shall

have the rights to . . . S.J.Res. 3 (106th Cong.)

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 the rights to . . . H.J.Res. 64 (106th Cong.).

(...continued)

Constitution does not, without legislation and of its own force, carry such right to territory

so situated. Only ‘fundamental’ constitutional rights are guaranteed to inhabitants of those

territories”).

United States Department of Justice, Office of Justice Programs, Office for Victims of

Crime, New Direction From the Field: Victims’ Rights and Services for the 21st Century at

22 (“Although some state victims’ bill of rights and constitutional amendments include

rights for victims of juvenile offenders, most states have extended only selected rights to

these victims”). Only three of the thirty-three state constitutional amendments expressly

cover victims of juvenile misconduct, ALASKA CONST. Art.1, §24; ORE.CONST. Art.I, §42;

S.C.CONST. Art.I, §24; two others empower their state legislatures to do so, ARIZ.CONST.

Art.2, §2.1; UTAH CONST. Art.1, §28(3).

S.J.Res. 3 (106th Cong.) (“a victim of a crime of violence as these terms may be defined

by law”); S.J.Res. 44 (105th Cong.) (“a victim of a crime of violence”); H.J.Res. 129 (105th

Cong.)(same).

H.J.Res. 64 (106th 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. 71

(105th Cong.)(same); H.J.Res. 173 (104th Cong.)(substantively the same).

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).

H.J.Res. 129 (105th Cong.) appears to be the only exception.

CRS-20

Section 3 of some of the older proposals declared that “no person accused of the

crime may obtain any form of relief hereunder.” This obviously referred to those

who victimize, but it might have disqualify victims who were also accused of a

crime. For example, if both parties to a domestic altercation were charged, neither

might be considered qualified. Alternatively, they might each be considered the

victim of the other’s crime, and thus both be entitled to the Amendment’s benefits.

The language (“the crime”) probably could not be reasonably construed to bar claims

by those under indictment or other form of criminal charge for other crimes. Thus,

for instance, inmates who are the victims of criminal assaults while incarcerated

would appear to qualify as victims under the proposal.57

Rights in What System.

All but one of the early proposals included juvenile proceedings;58 some covered

military prosecutions without reservation;59 some contained explicit reference to

habeas proceedings;60 several lacked any explicit reference to the territorial courts;61

and one applied only to federal proceedings.62

In the 106th Congress, the proposals reached state, federal, and territorial

proceedings; juvenile proceedings; and, to the extent permitted by Congress, military

proceedings. In doing so, the Senate Judiciary Committee explained, the proposals

endorsed the Justice Department’s belief that “the rights of victims of juvenile

offenders should mirror the rights of victims of adult offenders.”63 They also

Cf., Senate Hearing V; House Hearing V at 76(statement of James Orenstein)(“If, as

discussed below, the current language of the Amendment creates a right to be present in

court proceedings involving the crime, or at a minimum to be heard orally at some such

proceedings, prison administrators will be faced with the Hobson’s choice between cost- and

labor-intensive measures to afford incarcerated victims their participatory rights and

foregoing the prosecution of offenses within prison walls that are necessary to maintain

order. Either choice could undermine orderly prison administration and the safety of

corrections officers”); see also, Senate Hearing IV at 118; House Hearing IV at 48.

H.J.Res. 173 (104th Cong.)(“. . . victims . . . in each prosecution by the United States or

a State. . .”)(emphasis added).

H.J.Res. 173 (104th Cong.)(“. . . victims . . . in each prosecution by the United States or

a State. . .”); H.J.Res. 174/S.J.Res. 52 (104th Cong.)(“To ensure that the victim is treated

with fairness. . . throughout the criminal, military, and juvenile justice processes. . .”).

H.J.Res. 71 (105th Cong.); S.J.Res. 6 (105th Cong.).

H.J.Res. 173 (104th Cong.); H.J.Res. 174/S.J.Res. 52 (104th Cong.).

H.J.Res. 129 (“The rights established by this article shall apply in all Federal

proceedings, including military proceedings to the extent that Congress may provide by law,

juvenile justice proceedings, and proceedings in any district or territory of the United States

not within a State”)(emphasis added). The italicized language in H.J.Res. 129 might have

been sufficient to extend the amendment’s coverage to victims of crimes tried in tribal

courts. If so, it would be the only one to do so.

S.Rept. 106-254 at 42; S.Rept. 105-409 at 37, each quoting, U.S.Department of Justice,

Office for Victims of Crime, New Directions From the Field: Victims’ Rights and Services

(continued...)

CRS-21

embodied an exception for military proceedings under the view that “[b]ecause of

the complicated nature of military justice proceedings, including proceedings held

in times of war, the extension of victims’ rights to the military was left to Congress.

The Committee intends to protect victims’ rights in military justice proceedings

while not adversely affecting military operations.”64

The proposal in the 106th Congress stated that:

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. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th Cong.).

Amendment in the 108th Congress.

SECTION 1: The rights of victims of violent crime . . . shall not be denied by

any State or the United States and may be restricted only as provided in this

article.

SECTION 2: A victim of violent crime shall have the right to . . . .

Who is a Victim.

The Amendment defines neither “victim” nor “violent crime.” Nor does it

explicitly authorize a legislative definition, although such authority is probably

contemplated in Congress’ authority to enact appropriate enforcement legislation and

perhaps in the reservation for restrictions “dictated by a substantial interest in public

safety or the administration of criminal justice, or by compelling necessity.” In the

absence of any such implementing statutory illumination, the courts would likely

construe the terms in light of the remaining text of the Amendment, the ordinary

(...continued)

for the 21st Century 22 (1998). This might have been the most difficult of the proposal’s

commands to translate, because it would often mark a departure from existing state practice,

United States Department of Justice, Office of Justice Programs, Office for Victims of

Crime, New Direction From the Field: Victims’ Rights and Services for the 21st Century at

22 (“Although some state victims’ bill of rights and constitutional amendments include

rights for victims of juvenile offenders, most states have extended only selected rights to

these victims”). Only three of the thirty-three state constitutional amendments expressly

afford similar breadth of coverage for the victims of juvenile misconduct, ALASKA CONST.

Art.1, §24; ORE.CONST. Art.I, §42; S.C.CONST. Art.I, §24; although a few more their state

legislatures to bestow comparable treatment, ARIZ.CONST. Art.2, §2.1; OKLA. CONST. Art.II

§34; S.C. CONST. Art.I §24; UTAH CONST. Art.1, §28(3).

S.Rept. 106-254 at 42, accord, S.Rept. 105-409 at 37. 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); id. at 56 (prepared statement of Beverly Harris Elliot, President, National

Coalition Against Sexual Assault).

CRS-22

meaning of the words, the meaning given the same words elsewhere in the law,

implications of Congress’ rejection of proposed alternatives, and explanations within

the Amendment’s legislative history.

Section 3 continues to carry the language found in previous proposals that

denies the Amendment’s benefits to those accused of the crime. As noted earlier, this

would seem disqualify neither of the participants in a mutual assault nor inmates

victimized during their incarceration.

The courts may also consider the word “victim” limited by the insistence in

Section 3 that only the victim or the victim’s lawful representative may claim the

Amendment’s benefits. The concept of “representative” is rather clearly stated in

singular terms, as one who speaks in the interest of the victim rather than in his own

interest;65 parents and other relatives of a deceased or child victim might not

themselves be considered victims simply by virtue of the relationship and and as

discussed below perhaps only one of them could be selected as the victim’s

representative.66

The Amendment uses the word “crime” rather than the less inclusive word,

favored in many of the earlier proposals and often in existing federal law, “felony.”

Thus, it seems the Amendment protects the rights of victims of violent crimes other

than felonies, e.g., misdemeanors.67 Of course, crimes which are indisputably

nonviolent clearly cannot provide the foundation for a claim of right under the

Amendment, a result which some may find unsatisfactory in some cases.68

Looking elsewhere in federal law for guidance, the courts might observe that the

term “victim” has been assigned definitions which vary according to the context in

which they are used, although the existing federal victims’ rights statute might be

thought to supply the most instructive description: i.e., “‘victim’ means a person that

has suffered direct physical, emotional, or pecuniary harm as a result of the

commission of a crime, including–(A) in the case of a victim that is an institutional

entity, an authorized representative of the entity; and (B) in the case of a victim who

S.Rept. 108-191 at 43 (“In all circumstances involving a ‘representative,’ care must be

taken to ensure that the ‘representative’ truly reflects the interests–and only the interests–of

the victim”).

Compare, 18 U.S.C. 3663A(a)(2)(“. . . In the case of a victim who is under 18 years of

age, incompetent, incapacitated, or deceased, the legal guardian of the victim or

representative of the victim’s estate, another family member, or any other person appointed

as suitable by the court, may assume the victim’s rights . . .”).

“A ‘crime of violence’ can arise without regard to technical classification of the offense

as a felony or a misdemeanor,” S.Rept. 108-191, at 31.

“First, consider the plight of an elderly woman who is victimized by a fraudulent

investment scheme and loses her life’s savings. Second, think of a college student who

happens to take a punch during a bar fight which leaves him with a black eye for a couple

[of] days. I do not believe it to be clear that one of these victims is more deserving of

constitutional protection than the other,” S.Rept. 105-409 at 42 (1998)(additional views of

Sen. Hatch); see also, S.Rept. 108-191, at 50 (additional views of Sen. Hatch); Barnard,

Allocution for Victims of Economic Crimes, 77 NOTRE DAME LAW REVIEW 39 (2001).

CRS-23

is under 18 years of age, incompetent, incapacitated, or deceased, one of the

following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent;

(iv) a child; (v) a sibling; (vi) another family member; or (vii) another person

designated by the court,” 42 U.S.C. 10607(e)(2).69

Of course the definition of “violent crime” plays a large role in determining who

may be considered a victim for purposes of the Amendment. The definition from the

legal dictionaries is very narrow: “violent offenses. Crimes characterized by extreme

physical force such as murder, forcible rape, and assault and battery by means of a

dangerous weapon,” BLACK’S LAW DICTIONARY 1564 (7th ed. 1999). It is a

description drawn perhaps from the Federal Bureau of Investigation’s Uniform Crime

Reports which since 1960's have categorized only murder, nonnegligent

manslaughter, forcible rape, robbery, and aggravated assault as “violent crimes.”70

These are crimes against the person. The list includes neither crimes of violence

against property nor those that portend violence. It encompasses neither arson, nor

burglary, nor kidnaping.

Elsewhere in federal law, “violent crime” is sometimes thought of as

synonymous with a “crime of violence,” a concept ordinarily described in more

sweeping terms, e.g., “(a) an offense that has as an element of 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. 16 (emphasis added). Unfortunately,

the various definitions of “violent crime” found in federal law are too diverse to yield

a single standard.71 Moreover, many of the earlier proposed victims’ rights

In restitution cases, courts might look to the restitution definitions in 18 U.S.C. 3663 and

3663A: “For the purposes of this section, the term ‘victim’ means a person directly and

proximately harmed as a result of the commission of an offense for which restitution may

be ordered including, in the case of an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim

who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian

of the victim or representative of the victim’s estate, another family member, or any other

person appointed as suitable by the court, may assume the victim’s rights under this section,

but in no event shall the defendant be named as such representative or guardian.”

United States Department of Justice, Federal Bureau of Investigation, CRIME IN THE

UNITED STATES: UNIFORM CRIME REPORTS–1964 5 (1965); United States Department of

Justice, Federal Bureau of Investigation, CRIME IN THE UNITED STATES 2001, available at

[http://www.fbi.gov].

Compare, “For purposes of this subsection the term ‘crime of violence’ means an offense

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

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

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

in the course of committing the offense,” 18 U.S.C. 924(c)(3)(emphasis added), with,

“‘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

(continued...)

CRS-24

amendments spoke of “crimes of violence as defined by law.” The present proposal

is the first to speak of “violent crimes” and does not closely append a “defined by

law” reference. The difference might be seen as a rejection of the definitions and

definitional diversity of the term “crimes of violence” and perhaps of earlier

interpretations of the “crimes of violence” phrase.

The issue of how the courts will construe the terms “victim” and “violent crime”

becomes less problematic if they can be defined legislatively. A witness at the House

hearings in the 107th Congress and again in the 108th Congress suggested that the

Amendment comes with an implicit understanding that both Congress and state

legislatures have complete latitude to define both “victim” and “violent crime” as

long as they do not violate the Amendment:

It should be noted that States, and the Federal Government, within their

respective jurisdictions, retain authority to define, in the first instance, conduct

that is criminal. The power to define “victim” is simply a corollary of the power

to define the elements of criminal offenses and, for State crimes, the power

would remain with the State Legislatures.

It is intended that both the word “victim” and the phrase “victim’s lawful

representative” will be the subject of statutory definition by the state legislatures

and the Congress, within their respective jurisdictions. No single rule will

govern these definitions, as no single rule governs what conduct must be

criminal. In the absence of a statutory definition the courts would be free to look

to the elements of an offense to determine who the victim is, and to use its power

to appoint appropriate lawful representatives, Senate Hearing IV at 181, 200;

House Hearing IV at 19, 29 (statement of Steven T. Twist, General Counsel,

National Victims Constitutional Amendment Network); Senate Hearing V;

House Hearing V at 30, 48 (statement of Steven T. Twist, General Counsel,

National Victims Constitutional Amendment Network).

The Senate Judiciary Committee’s analysis of the Congress’ enforcement

authority under similar language in an earlier version of the Amendment made the

similar point:

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

(...continued)

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 [sexual abuse], 110 [sexual

exploitation of children], or 117 [transportation for illegal sexual activity],” 18 U.S.C.

3156(a)(4)(emphasis added), and with, “‘crime of violence’ means any offense under federal

state law, punishable by imprisonment for a term exceeding one year, that–(1) has an

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

of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical injury to

another,” U.S.S.G. §4B1.2(a); see also, “Whoever . . . murders, kidnaps, maims, assaults

with a dangerous weapon, commits assault resulting in serious bodily injury upon, or

threatens to commit a crime of violence against any individual in violation of the laws of any

State or the United States, or attempts or conspires so to do . . . .” 18 U.S.C. 1959(a)(violent

crimes in aid of racketeering activity).

CRS-25

fashion to allow Congress to ‘enforce’ the rights, that is, to ensure 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 Supreme Court review, flesh out the contours of the amendment

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

106-254 at 41.

Does this mean that either Congress or the states are free to negate the

Amendment by definition? May they define victims of violent crimes to include only

those victims entitled to victims’ rights under state law and only to the extent that

state law permits? May they define victims of violent crimes so narrowly as to

extinguish victims’ rights under the Amendment? No, asserts the Senate Judiciary

Committee report on the 108th Congress Amendment. Congress and the states are

free to expand the Amendment’s coverage to embrace victims of nonviolent crimes,

but the Committee intends the term “victim of violent crime” to be understood

broadly and to be so interpreted by the courts:

The amendment extends broadly to all victims of a “violent crime.” The phrase

“violent crime” should be considered in the context of an amendment extending rights

to crime victims, not in other possible narrower contexts. The most analogous federal

definition is Federal Rule of Criminal Procedure 32(f), which extends a right of

allocution to victims of a “crime of violence” and defines the phrase as one that

“involved the use or attempted use of physical force against the person or property of

another. * * * (emphasis added). The Committee anticipates that the phrase “violent

crime” will be defined in these terms of “involving” violence, not a narrower

“elements of the offense” approach employed in other settings. See, e.g., 18 U.S.C.

16. Only this broad construction will serve to protect fully the interests of all those

affected by criminal violence.

* * *

Of course, not all crimes will be “violent” crimes covered by the amendment.

For example, the amendment does not confer rights on victims of larceny, fraud, and

other similar offenses. At the same time, many States have already extended rights to

victims of such offenses and the amendment in no way restricts such rights. In other

words, the amendment sets a national “floor” for the protecting of victims rights, not

any sort of “ceiling,” S.Rept. 108-191, at 31, 32.

The Committee’s reference to crimes of “physical force against the . . . property of

another” as qualifying “violent crimes” seems to support the argument that a victim

covered by the Amendment includes anyone whose property interest might

unlawfully be made the subject of the use of physical force, i.e., victims may include

not only individuals but any legal entity capable of holding an interest in property.

This reference and other remarks indicate the Committee understands the term “crime

of violence” to describe crime violent or potentially violent in either its nature or its

circumstances.72

“It should also be obvious that a crime of violence can include not only acts of

consummated violence but also of intended, threatened or implied violence. The unlawful

displaying of a firearm or firing of a bullet at a victim constitutes a ‘violent crime’

regardless of whether the victim is actually injured. Along the same lines, conspiracies,

attempts, solicitations and other comparable crimes to commit a crime of violence should

(continued...)

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Rights in What System.

The Amendment makes little mention of the systems it reaches. It clearly

applies to both federal and state criminal justice systems (“The rights of victims of

violent crime . . . are hereby established and shall not be denied by any State or the

United States . . .”). The elimination of the provision found in earlier proposals that

address its coverage elsewhere might be construed as an indication that the

Amendment on its face is inapplicable to juvenile proceedings, to proceedings before

military tribunals, or to criminal proceedings in territorial or tribal courts. On the

other hand, the omission may be seen as the elimination of redundancy, since each

of the systems functions ultimately under the authority of either a state or the United

States.73

Notice

Notice in the world of victims’ rights takes three forms, notice to the victim: (1)

of his or her rights, (2) of the status of the criminal investigation and prosecution, as

well as the time, place, and outcome of related judicial proceedings, and (3) of the

release or escape of the accused or convicted offender. Notice allows victims to

assert their rights, facilitates their participation, assures them that justice is being

done, and affords them the opportunity to take protective measures. The Amendment

does not include a right to notification of the Amendment’s benefits. Its provision

for notification of release or escape applies only prior to conviction, i.e., only with

respect to the release or escape of the accused. It does, however, entitle victims to

reasonable and timely notice of all public proceedings involving the crime.

(...continued)

be considered crimes of violence for purpose of the amendment if identifiable victims exist.

Similarly, some crimes are so inherently threatening of physical violence that they could be

“violent crime” for purposes of the amendment. Burglary, for example, is frequently

understood to be a crime of ‘crime of violence’ because of the potential for armed, or other

dangerous confrontation. Similarly, sexual offense against a child, such as child molestation,

can be ‘violent crimes’ because of the fear of the potential for force which is inherent in the

disparate status of the perpetrator and victim and also because evidence of severe and

persistent emotional trauma in its victims gives testament to the molestation being unwanted

and coercive. . . .Some crimes, such as drug or espionage offenses, do not ordinarily have

such an identifiable victim and therefore would not ordinarily be covered by the amendment.

However, in some unusual cases, a court might conclude that these offense in fact involved

violence against an identifiable victim. For example, treason or espionage against the

United States resulting death or injury to an American government official would produce

an identifiable victim protected by the amendment,” S.Rept. 108-191, at 31-2 (internal

citations omitted).

S.Rept. 108-191 at 78 (minority views)(arguing that based on the Amendment’s history

its requirements would presumably apply to military courts martial and to military

commissions conducted under federal authority in the United States).

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Contemporary Practices.

A general right to notice of available rights and services is found in more than

a few state codes and constitutions, either in the form of a victims’ right or of a

governmental obligation.74 Existing federal law imposes the obligation on federal

officials, 42 U.S.C. 10607. Nevertheless, its presence in the Amendment would

represent a departure from the cast of most U.S. constitutional rights and in past

proposals has given at least one member of the Senate Judiciary Committee pause.75

Most states give victims the option of being notified when an offender is to be

released or has escaped from custody.76 Existing federal law, extends the notification

option only to the release of offenders, 42 U.S.C. 10605(b)(7). State constitutional

amendments ordinarily require notification of court proceedings;77 several, by

constitution or statute or both, require notification of the arrest of an accused or other

information concerning the status of the investigation or prosecution.78

E.g., TENN.CONST. 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]”).

S.Rept. 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?”).

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

ALA.CONST., Amend. 557; ALASKA CONST. art.I, §24; ARIZ.CONST. art.2, §2.1; 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; NEB.CONST. Art.1, §28; NEV.CONST. art.1, §8; 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; 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.

E.g., S.C.CONST. Art.I, §24 (“victims of crime have the right to . . . be reasonably

informed when the accused . . . is arrested. . . .”); NEV.CONST. Art. 1, §8[2] (“The legislature

shall provide by law for the rights of victims of crime . . . to be (a) Informed, upon written

(continued...)

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Past Proposals.

The resolutions introduced in the 104th Congress offered crime victims the right

to notification of related proceedings, of the release or escape,79 and came with a right

to be informed of the amendment’s benefits.80 The pattern continued in successive

Congresses with some alterations. The resolutions thereafter spoke of notice of

related “public proceedings,” struggled with the issue of notification of closed parole

hearings,81 and maintained a right to be informed of the amendments’ benefits:82

A victim . . . shall have the right . . . to reasonable notice of, and not to be

excluded from, any public proceedings relating to the crime. . . to the foregoing

rights at a parole proceeding that is not public, to the extent those rights are

afforded to the convicted offender . . . to reasonable notice of a release or

escape from custody relating to the crime . . . and to reasonable notice of the

rights established by this article. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th

Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have the right to reasonable and

timely notice of any public proceeding involving the crime and of any release

or escape of the accused;

(...continued)

request, of the status or disposition of a criminal proceeding at any stage of the

proceeding”); ALA.CODE –15-23-62 (“. . . the law enforcement agency shall provide to the

victim . . . the following information . . . (3) the name of the law enforcement officer and

telephone number of the law enforcement agency with the following statement attached: `If

within 60 days you are not notified of an arrest in your case, you may call . . . for the status

of the case . . .”).

H.J.Res. 173(“notice of . . . every stage of the public proceedings . . . to be informed of

any release or escape of the defendant”); H.J.Res. 174(“to be informed of . . . every

proceeding . . . to be informed of any release or escape”); S.J.Res. 52 (same); S.J.Res.

65(“notice of . . . all public proceedings . . . to notice of a release . . . or an escape).

H.J.Res. 174 (“notice of the victim’s rights”); S.J.Res. 52 (same); S.J.Res. 65 (“notice

of the rights established by this article”).

E.g., H.J.Res. 71 (105th Cong.)(“a victim . . . shall have the right . . . to the rights

described in the preceding portion of this section [relating to notice, attendance, and

participation rights in public proceedings] at a parole proceeding that is not public, to the

extent those rights are afforded to the convicted offender”).

E.g., S.J.Res. 6 (105th Cong.)(“Each victim . . . shall have the rights . . . to notice of the

rights established by this article; however, the rights to notice under this section are not

violated if the proper authorities make a reasonable effort, but are unable to provide the

notice, or if the failure of the victim to make a reasonable effort to make those authorities

aware of the victim’s whereabouts prevents that notice”); H.J.Res. 64 (106h Cong.)(“a

victim . . . shall have the rights . . . to reasonable notice of the rights established by this

article”).

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The Amendment differs from its antecedents in five respects. First, it demands

that notice be timely as well as reasonable. Second, it drops all references to parole

proceedings. Third, it extends to proceedings “involving the crime” rather than to

proceedings “related to the crime.” Fourth, the Amendment promises notice of the

release or escape of “the accused.” Fifth, there is no longer any declaration that a

victim is entitled to notification of his or her rights under the Amendment.

The Amendment’s grant of rights is subject to obvious facial limitations:

- the notice rights apply only with respect to public proceedings;

- the rights attach to those proceedings involving the crime not those related to

the crime;

- victims are only entitled to reasonable and timely notice; and

- victims are only entitled to notice of the release or escape of the accused.

Public Proceedings.

The “public proceedings” feature is not new. Yet there has always been some

question whether courts and legislative bodies might by closing otherwise public

proceedings curtail victims’ notification and other rights that would otherwise be

beyond judicial or legislative reach. The history of past proposals indicates that this

may be the case:

Victims’ rights under this 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 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. See 28 C.F.R. 50.9. Another example is provided

by certain national security cases in which access to some proceedings can be

restricted. See ‘The Classified Information Procedures Act’ 18 U.S.C. App.3.

A victim would have no special right to attend. The amendment works no

change in the standards for closing hearings, but rather simply recognizes that

such nonpublic hearings take place. S.Rept. 108-191 at 34; see also, S.Rept. 106254 at 30, S.Rept. 105-409 at 25.83

S.Rept. 108-191 at 38 (“The right to be heard is also limited to ‘public proceedings.’ As

discussed previously at greater length, a victim has no right to be heard at a proceeding that

the court has properly closed under the existing standards governing court closures”); cf.,

Senate Hearing V; House Hearing V at 35 (statement of Steven T. Twist)(emphasis

added)(“The right would also extend to post-conviction public release proceedings, for

example parole or conditional release hearings. In jurisdictions that have abolished parole

in favor of truth in sentencing regimes, many may still have conditional release. Only if the

jurisdiction also has a ‘public proceeding’ prior to such a conditional release would the

right attach”); see also, Senate Hearing IV at 187; House Hearing IV at 22.

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Involving the Crime.

The breadth of the phrase “involving the crime” used to described the public

proceedings covered by the notification right may raise questions too. 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 seem to

come within the meaning of the term. The Senate reports’ discussion of proceedings

“related to the crime” in earlier versions, for instance, specifically mention appellate

proceedings, S.Rept. 106-254 at 31, S.Rept.105-409 at 26.

The same reports indicate that at least at one time covered release proceedings

were understood to include those involving “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 and 30. Crime relatedness, understood in such terms,

would presumably carry victim notice rights to a fairly wide range of civil and quasicivil 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.

It may be for this reason that the phrase was changed to “involving the crime,”

a phrase that arguably imposes greater limits on the class of proceedings than might

be considered “related,” although not clearly sufficient to excuse notice of the habeas,

forfeiture, deportation, or the extradition proceedings.84 Historical proposals were

thought to perhaps embody notice rights for the victims of a defendant’s past crimes,

and victims of charges that have been dropped or dismissed, as well as victims of

One witness, however, thought it more likely to confirm an intent to embrace civil

proceedings, Senate Hearing V; House Hearing V at 79 (statements of James Orenstein)

(“Some public proceedings ‘involving the crime’ are civil in nature, and normally proceed

without any participation by the executive branch of government. Here again, the change

in language from S.J.Res. 3 [106th Cong.] could be problematic: that bill used the phrase

‘relating to the crime’ which the Senate Judiciary Committed noted would ‘typically . . . be

the criminal proceedings arising from the filed criminal charges, although other proceedings

might also be related to the crime.’ Senate Report at 30-31. A court interpreting the current

bill might conclude that the change from ‘relating to’ to ‘involving’ was intended to make

it easier to apply the Amendment to proceedings outside the criminal context “); see also,

Senate Hearing IV at 122; House Hearing IV at 50.

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charges that had resulted in acquittal.85

repudiation of that construction as well.

The change might be considered a

The Senate Judiciary Committee, however, indicates that no such repudiation

was intended and states simply that the “public proceedings are those ‘relating to the

crime,’” S.Rept. 108-191 at 34. In doing so, it might be thought to have embraced

earlier descriptions of proceedings related to the crime, even though the Committee’s

examples in the 108th Congress are much more modest in some places, id. (“the right

applies not only to initial hearings on a case, but also rehearings, hearing at an

appellate level, and any case on a subsequent remand”).86

Reasonable and Timely Notice.

The addition of “timely” unquestionably seems significant, because it would

appear to greatly reduce the prospect of “reasonable” but ineffective notice. Yet the

Committee report issued after the change makes no note of it and continues to

describe the obligation in the same terms used prior to the change.87 Under past

proposals it was unclear whether reasonableness was to be judged by the level of

official effort or by the effectiveness of the effort. The Senate reports noted and

continue to note that heroic efforts were not expected but due diligence was, S.Rept.

108-191 at 34; S.Rept. 106-254 at 30, S.Rept. 105-409 at 25. Yet the obvious

purpose for the right to notice was to provide a gateway to the Amendment’s other

rights. Even without the addition of the clarifying “timely” requirement, what was

“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.Rept.

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).

But see, S.Rept. 108-191 at 35 (“The release [which triggers a notification requirement]

must be one ‘relating to the crime.’ This includes not only a release after a criminal

conviction but also, for example, a release of a defendant found not guilty of a crime by

reason of insanity and then hospitalized in custody for further treatment, or a release

pursuant to a habitual sex offender statute ”). As discussed below, this statement seems

totally at odds with the use of the word “accused” rather than “offender” in the text of the

Amendment; “after a criminal conviction” or after “a defendant [is] found not guilty of a

crime by reason of insanity,” the individual can no longer to called “accused.”

Compare, S.Rept. 108-191 at 33-34, with, S.Rept. 106-254 at 30-1, S.Rept. 105-409 at

25-6.

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reasonable might have been judged by whether the efforts were calculated to permit

meaningful exercise of the Amendment’s other rights.88

The Senate reports, however, explain that in rare circumstances notice by

publication might be reasonable,89 although if judged by existing due process

standards such notice might not be adequate in ordinary circumstances.90 Notice

given after a proceeding was conducted might have seemed 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.91 The addition of a

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, [525 U.S. 234,

240] (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).

S.Rept. 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”); see also,

S.Rept. 105-409 at 25.

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 & Truest 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 change of alerting an unwary person that he must act now forever lost his

rights”).

The Senate reports 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.Rept. 108-191 at 35; S.Rept. 106-254 at

36;. S.Rept. 105-409 at 30.

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 non-English 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.

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timeliness requirement seems to reduce the possibility of “reasonable” but untimely

notification.92

In the context of release notifications, 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 custodial authorities.93 Would publication notice

be considered reasonable in such cases? Would the existence of an online or other

automated system available to the general public and containing release and escape

dates retrievable by prisoner name, without more, constitute reasonable notice?

Application may be particularly challenging in the area of bail. The Amendment

grants 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. At one time, amendment proposals seem to explicitly anticipate

that a failure of timely notice in a bail context could be rectified by recourse to the

provision in the Amendment that permitted the bail decision to be revisited at the

behest of a victim.94 The Amendment no longer contains that explicit provision, but

In the view of one commentator, “‘Timely’ notice would require that the victim be

informed enough in advance of a public proceeding to be able reasonably to organize his or

her affairs to attend,” Senate Hearing V; House Hearing at 31 (statement of Steven T.

Twist); see also, Senate Hearing IV at 183; House Hearing IV at 20 (statement of Steven

T. Twist).

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 by certified

mail to victims who have submitted notification cards distributed to them shortly after the

defendant is sentenced).

Past proposals had a provision which declared, “. . . Nothing in this article shall provide

grounds to . . . reopen any proceeding . . . except with respect to conditional release . . . .”

e.g., S.J.Res. 3 (106th Cong.). Since the amendment has no similar prohibition on reopening

at the petition of a victim, no bail exception is necessary. Of course, whether the initial bail

hearing is delayed or the accused is re-arrested following the victim’s petition to reopen, the

result is the same–an accused is detained longer than would otherwise be the case in the

name of victims’ rights, S.Rept. 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

(continued...)

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nothing in the Amendment precludes revisitation – other than abandonment of the

earlier explicit provision perhaps.

Release or Escape of the Accused.

For the first time, the Amendment refers to notice of the release or escape of the

accused. The implication is that there is no right to notice of a release or escape

following conviction, since at that point the defendant is “convicted” rather than

“accused.” If this is the Amendment’s meaning, the consequences of the change are

considerable. The administrative burdens associated with notifying victims every

time an inmate is released from custody are not insignificant, particularly in those

jurisdictions without any comparable requirement of their own. This is especially

true if the Amendment is construed to apply to the future release or escape of

prisoners convicted of crimes committed prior to the effective date of the

Amendment.

Nevertheless, the Committee report in the 108th Congress suggests that the

Senate Judiciary Committee considers the terms “accused” and “convicted”

interchangeable and intended no change from earlier more generously worded

proposals:

The release [which triggers a notification requirement] must be one “relating to

the crime.” This includes not only a release after a criminal conviction but also, for

example, a release of a defendant found not guilty of a crime by reason of insanity and

then hospitalized in custody for further treatment, or a release pursuant to a habitual

sex offender statute, S.Rept. 108-191 at 35.

No Rights Warnings.

Notice of rights had been a feature of the past proposals from the beginning. It

followed the lead of several state constitutions and statutes. It was perhaps seen as

a victim’s counterpart to the Miranda warnings enjoyed by an accused and as a

prerequisite if the Amendment were to function effectively.95 There were objections,

however, that the warnings were out of character with the other rights conveyed by

the Constitution and might pose implementation problems – objections that

ultimately prevailed apparently.96

(...continued)

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”).

“Victims’ rights are of little use if victims remain unaware of them. Since victims

deserve the eight basic rights [of the amendment], they should be informed about those

rights. Not only does this serve to ensure that victims can exercise their rights, but it can

even improve the functioning fo the criminal justice process. Victims who have been

informed about their role in the process are in a better position to cooperate with police,

prosecutors, and courts to bring about a proper resolution of the case. Victims deserve

appropriate notice of their rights in the process,” S.Rept. 106-254 at 26.

“I have significant concerns about the necessity and wisdom of . . . providing that

(continued...)

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Not to Be Excluded

The Constitution promises the accused a public trial by an impartial jury97 and

affords him the right to be present at all critical stages of the proceedings against

him.98 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.99

(...continued)

covered victims shall have right ‘to reasonable notice of the rights established’ by the

amendment. No other constitutional provision mandates that citizens be provided notice of

the rights vested by the Constitution – not even the court-created Miranda warnings are

constitutionally required. In an analogous context, Justice O’Connor noted that ‘the free

exercise clause is 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.

“Moreover, I do not believe that sufficient consideration has been given to the practical

aspects of the requirement. Which governmental entity would be required to provide the

notice? Would it be the police, when taking a crime report? The prosecutor prior to seeking

an indictment or filing an information? Or perhaps the court at some other stage in the

process? At what point would the right attach – when the crime is committed? When an

arrest is made? . . .Does the term presume that the government entity providing notice must

have assimilated the Supreme Court’s latest jurisprudence interpreting victims’ rights when

giving notice? . . . .

“Finally, Congress will be empowered . . . 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? I believe greater consideration must be

given to these questions before a right to notice of the rights guaranteed by the amendment

is included in the Constitution,” S.Rept. 105-409 at 43-4 (additional views of Sen. Hatch).

“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).

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).

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 kidnaping/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

(continued...)

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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

testimony.”100 The principle has been embodied in Rule 615 of the Federal Rules of

Evidence and in state rules that adopt the federal practice.101

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.

The Amendment assures victims of the right not to be excluded from any public

proceedings involving the crime. It is one area where balancing the interests of

victim, defendant, and government may be most challenging. The right brings with

it no auxiliary right to transportation to such proceedings, a companion that might

accompany a right to attend. It applies to only those functions that qualify as official

“proceedings.” It operates only with respect those proceedings that are “public.”

Contemporary Practices.

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;102

(...continued)

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.

100

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

101

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, (3) a person whose presence is shown by a party to be

essential to the presentation of the party’s cause, or (4) a person authorized by statute to be

present”).

102

A few accomplish this result by requiring the victims who are witnesses testify first and

then be allowed to remain, e.g., VT.R.EVID. 615 (“At the request of a party the court shall

(continued...)

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another group allows witnesses who are victims to attend subject to a showing as to

why they should be excluded;103 a few leave the matter in the discretion of the trial

court;104 and some have maintained the traditional rule – witnesses are sequestered

whether they are victims or not.105

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).

In federal capital cases, 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.106

In other federal criminal cases, victims may be excluded from trial only as

constitutionally required, 18 U.S.C. 3510(a).

Past Proposals.

Almost from the beginning virtually every proposed amendment granted crime

victims the right “not to be excluded” from related public proceedings:107

102

(...continued)

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. . .”).

103

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).

104

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.

105

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

106

18 U.S.C. 3510(b); 3593(c). See also, United States v. McVeigh, 958 F.Supp. 512, 51415 (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). The McVeigh trial court had barred victim-witnesses from trial

prior to the enactment of section 3510 and the amendment of section 3593(c). Following

that initial sequestration order, the Court of Appeals had held that victim-witnesses had no

standing based on 42 U.S.C. 10606 to seek mandamus in order to overturn the lower court’s

sequestration order, United States v. McVeigh, 106 F.3d 325, 334-35 (10th Cir. 1997).

107

The exceptions occurred early on, H.J.Res. 173 (104th Cong.)(the right “to be present

(continued...)

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A victim . . . shall have the right[] . . . not to be excluded from, any public

proceedings relating to the crime. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th

Cong.).

Amendment in the 108th Congress.

SECTION 2. A victim of violent crime shall have the right . . . not to be

excluded from such public proceeding . . . .

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.Rept. 108-191 at 35-6; S.Rept.

106-254 at 31, S.Rept. 105-409 at 26.108 In this it would be unlike a defendant’s right

to attend. Yet like a defendant’s right to attend, the use of the phrase has been

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.109 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 constitutional policies (victim’s rights and

defendant’s due process rights) could 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.110

107

(...continued)

at, every stage of the public proceedings, unless the court determines there is good cause for

the victim not to be present”); H.J.Res. 174 (104th Cong.)(“given the opportunity to be

present at every proceeding in which those rights are extended to the accused or convicted

offender”); S.J.Res. 52 (104th Cong.) (same).

108

One hearing witness suggested that omission of the phrase “if present” from earlier

versions of this provision might undermine this purpose, House Hearing V at 79; Senate

Hearing IV at 121-22; House Hearing IV at 50 (statement of James Orenstein).

109

“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).

110

Portuondo v. Agard, 529 U.S. 61, 73 (2000)(“Allowing comment upon the fact that a

defendant’s presence in the courtroom provides him a unique opportunity to tailor his

(continued...)

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The application of the “public proceeding” limitation may be as uncertain here

as in the case of victim notification. 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 judicial, legislative or administrative

adjustments. A court might seek instruction from the law governing the rights of the

public to attend judicial proceedings.

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.”111

There may be some related uncertainty over whether the Amendment’s

attendance right applies to historically public events that are now ordinarily held

privately. For example, 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.112 Victims and anyone else so inclined might attend.113 Most

state laws now call for executions to occur in the presence of official witnesses,

rather than being conducted publicly. Those who attend are either identified by

110

(...continued)

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.Rept. 105-409 at 82 (additional views

of Sen. Biden).

111

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 (PressEnterprise I), 464 U.S. 501 (1984)).

112

The Executioner’s Song: Is There a Right to Listen? 69 VIRGINIA LAW REVIEW 373,

375-78 (1983).

113

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

or friends of a victim would be available to attend.

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statute114 or their selection is left to the discretion of prison authorities.115 A handful

permit two or three members of the victim’s immediate family to be present.116 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.117 In cases involving hundreds or

thousands of victims, conflicts may arise should a defendant’s privacy right to a

dignified death by execution conflict with victims’ rights to attend.

Committee commentary indicates that the Amendment plays no role in what

public proceedings can be closed even though that action denies victims notice,

attendance and allocution rights. It suggests that a victim has no ground to object if

a decision is made to close a traditionally public proceeding, “The amendment works

no change in the standards for closing hearings, but rather simply recognizes that

nonpublic hearings take place,” S.Rept. 108-191 at 34; S.Rept. 106-254 at 30;

S.Rept. 105-409 at 25.

To Be Heard

Unlike the rights to notice and not to be excluded, the right to be heard is a right

to participate. Proceedings at which it may be invoked are described with greater

particularity in the Amendment. Although victim impact statements are a common

sentencing feature, victim participation elsewhere varies considerably from

jurisdiction to jurisdiction and according to the stage of the process at issue.

114

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”).

115

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”).

116

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. . .”).

117

E.g., 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. . .”).

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The Amendment affords victims the right “to be heard at public release, plea,

sentencing, reprieve, and pardon proceedings” subject to a rule of reason. It does not

on its face give them the right to be heard in closed proceedings or to be heard on

other pre-trial motions, at trial, perhaps on appeal, or with respect to related forfeiture

or habeas proceedings. The history of past, more narrowly drawn provisions

indicates that the right may embrace all of these and more.

Contemporary Practices.

Public release (bail et al.).

At one time, the victim was not considered a legitimate participant in the bail

hearing. In fact, 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 pre-trial release

were calculated solely to insure the courtroom presence of the accused at the

appointed hour.118 Most states had, and still have, right to bail clauses for noncapital

offenses in their state constitutions.119 Those jurisdictions that did not have a right

to bail clause had and have a prohibition against excessive bail,120 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.121

In many jurisdictions, the defendant-exclusive 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;122 in some, the state courts have interpreted

118

At both state and federal law, the presumption of bail was so strong that even after

conviction when the defendant sought bail pending appeal most shared the opinion of

Justice Jackson, sitting on a circuit court of appeals panel: “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).

119

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.

120

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

121

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

122

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”).

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the right to bail to include a witness protection and judicial integrity exception;123

courts in still other states have held that the right to bail clauses permit imposing

victim or public safety conditions124 and allow revocation of bail if the conditions

have been broken.125

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

declared that neither clause bars legislative creation of a system that conditions

pretrial release upon public safety as well as preventing flight.126

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.127 A few more permit consultation with the prosecutor prior to the bail

hearing.128 Most allow victims to attend.129 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.130

123

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).

124

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

125

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).

126

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”).

127

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”).

128

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”).

129

E.g., OHIO REV.CODE ANN. §2930.09.

130

E.g., ALA.CODE §15-23-75 (4)(“If the terms and conditions of a post-arrest release

(continued...)

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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.131 In other federal cases,

victims’ prerogatives seem to be limited to the right to confer with the prosecutor,

and notification of, and attendance at, all public court proceedings.132

Plea Bargains.

Negotiated guilty pleas account for over ninety percent of the criminal

convictions obtained.133 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,134 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;135 forfeiture

130

(...continued)

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. §811848 (“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”).

131

18 U.S.C. 2236.

132

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

133

Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas,

87 CORNELL LAW REVIEW 697, 698 n.2 (2002)(for more than twenty-five years, more than

ninety percent of convictions in the United States have been the result of guilty pleas, citing

Sourcebook of Criminal Justice Statistics 1999, 432-33 (2000) and Newman, CONVICTION:

THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL 3 (1966)); see also,

Administrative Office of the United States Courts, Judicial Business of the United States

Courts, 211 (2002)(only 3,329 of the 67,731 defendants convicted of federal crimes in the

fiscal year ending in September 30, 2001, were found guilty by a judge or jury following a

criminal trial; the rest pled guilty or nolo contendere).

134

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, 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).

135

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;136 testimonial immunity;137 entry into a witness protection program;138

and informant’s rewards,139 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,140 and/or one that changes the legal playing field so that the

victim has become the principal target of prosecution.141

Some state victims’ rights provisions are limited to notification of the court’s

acceptance of a plea bargain.142 More often, however, the states permit the victim to

address the court prior to the acceptance of a negotiated guilty plea143 or to confer

with the prosecutor concerning a plea bargain.144

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 victims’

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

136

Cf., Libretti v. United States, 516 U.S. 29 (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).

137

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

138

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

139

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).

140

“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

bargain, 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).

141

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).

142

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

143

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

144

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

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pose no necessary infringement upon the rights of the accused.145 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,146 (2)

to increase the possibility that the sentence imposed will reflect the damage done and

therefore the seriousness of the crime,147 (3) to balance the pleas for the defendant

that have traditionally been heard at that point,148 and (4) to restore some level of

dignity and respect for the victim.149

Critics counter that the use of victim impact statements introduces irrelevancies

into the sentencing process,150 distorts the rationale for sentencing thereby leading to

disparate results,151 leads to putting the victim on trial,152 and in cases where the jury

determines or recommends the sentence to be imposed, may be unfairly

inflammatory.153

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 and federal

government. Many call for inclusion in a presentencing report prepared for the court

in one way or another,154 often supplemented by a right to make some kind of

subsequent presentation as federal law permits.155 Some are specific as to the

145

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that 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.

146

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).

147

Id.

148

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.

149

Sentencing Criminals: The Constitutionality of Victim Impact Statements, 60 MISSOURI

LAW REVIEW 731, 735 (1995).

150

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

151

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).

152

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).

153

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

154

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

155

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.

(continued...)

CRS-46

information that may be included;156 some permit the victim to address the court

directly; others do not.157

Reprieves and Pardons.

The Constitution vests the President with “the power to grant reprieves and

pardons for offences against the United States,” U.S.Const. Art.II, §2, cl.1.158 As a

matter of administrative practice he is assisted by the Pardon Attorney in the

Department of Justice.159 Or

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