ator may know, is Law Day, the day Congress has set aside to reflect on the way in which our legal system works.

And today, unfortunately, while our Federal Constitution contains numerous rights for those who commit acts of violence, it contains no rights for those who have been victimized. Around the country, there is a growing appreciation of that imbalance and the need to remedy it. We need to do something or do something for victims of crimes.

Thirty-one States, including the State of Missouri, have amended their own State constitutions to protect the rights of crime victims, and every State has adopted statutes extending some form of protection to victims. Now, victim participation in the criminal justice process serves a number of important interests: Crime victims can provide criminal justice decisionmakers with important information about the full extent of the damage from criminal violence.

Victim participation can often have important cathartic effect, helping victims move forward with their lives after the devastation caused by crime. Anita Lawrence, for example, I thought this morning put it well when she talked about how proper participation can help victims close the book on one chapter in their lives and move forward.

And finally, allowing victims to participate is consistent with our ideas of fundamental justice. As President Clinton put it in endorsing the Federal Victims' Rights Amendment, when someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in.

Now, one question about victim participation that has apparently arisen recently is the extent to which crime victims should participate in and be notified of executive clemency decisions. I don't want to comment on the specifics of any commutation decision, but instead try and step back and provide a more objective view as to how victims should be integrated into the clemency process.

I think earlier this morning, Chairman Ashcroft, you hit the nail on the head when you said that given the widespread recognition of the importance of victim participation in earlier stages of the process, that it makes no sense to deny them the opportunity to be involved at the ultimate step in the process. Throughout this Nation, States have tried to make ensure that victims can have a say before a defendant is released on bail or given an unduly lenient plea bargain.

States have also tried to make sure victims can attend trials to see that justice is being served. And victims throughout the country now have an opportunity to provide a victim impact statement when an offender is sentenced or when a possible parole is being considered. Given all these efforts to involve victims from the start of the criminal justice process, it makes no sense to exclude them from the last step, a Governor's decision to grant or not to grant a prisoner's application for clemency.

Victims deserve the right to be heard at this stage, not to have a veto over the Governor's decision, but rather to provide a voice, to provide information about the full harm of the crime that the Governor can consider in reaching his or her decision. Similarly, victims deserve to be notified of any decision the Governor might reach so that they are not surprised and traumatized by unexpect

edly learning of a commutation. No family should be ambushed by a decision, as Retha Lawrence so eloquently put it this morning. Now, many States, particularly in recent years, have passed statutes that requiring that victims be informed of clemency applications, and be given a fair opportunity to comment on them. Along these lines, it may well be desirable to amend Senate Joint Resolution 3 to extend these rights to victims, and my prepared testimony providing some possible language for doing just that.

Senate Joint Resolution 3 already contains an extensive list of rights for crime victims, including the right to be notified of court and parole proceedings, and to be heard at appropriate points in the process. These are rights not to be victimized again through the process by which Government officials prosecute, punish, and release accused and convicted offenders.

These are the very kinds of rights with which our Constitution is typically and properly concerned. Rights of individuals to participation in all those governmental processes that strongly affect their lives. Now as you would expect with the proposed Federal Constitutional Amendment, Senate Joint Resolution 3 is a product of consensus; it's crafted to try to attract the super majority that will be necessary in Congress to send the measure to the States.

For example, Senate Joint Resolution 3 extends rights to victims of crimes of violence a narrower formulation than when first introduced. It is important to understand that crimes of violence, as used in Senate Joint Resolution 3, is a broad phrase that includes crimes with the potential for violence. For example, courts have frequently held that burglaries of homes are crimes of violence because of the potential for armed or dangerous conflict.

And thus, Senate Joint Resolution 3 would cover one of the situations that Mr. Taylor talked about earlier this morning, and also, Mr. Ashlock's numbers may need to be revised slightly to reflect the definition used in Senate Joint Resolution 3 is somewhat broader than narrower definitions used by other criminal justice agencies. Now, of course, in considering this issue, we cannot rely simply on numbers. Some crimes have more serious consequences than others, as the testimony from Carol Angelbeck, Mata Weber, and the Lawrence family this morning eloquently demonstrated. Violent crimes cover the vast bulk of cases in which victims' rights seriously are at issue.

The National Organization for Victims' Assistance, mentioned by Mr. Taylor, mentioned, for example, has estimated for of the thousands of calls that come in to its toll free 800-number every year, more than 95 percent are from victims of violence. Now to be sure, it would be desirable to extend Senate Joint Resolution 3 that extra 5 percent to cover those crimes beyond those of violence.

But here it's important not to let the perfect become the enemy of the good. It appears that insisting on coverage of all crimes will destroy the consensus that surrounds Senate Joint Resolution 3 and prevent the passage of any Constitutional amendment.

The better course, obviously, is to pass Senate Joint Resolution 3, which will protect the rights of violent crime victims and improve the climate in the criminal justice system for all victims. Thank you, Mr. Chairman.

[The prepared statement of Mr. Cassell follows:]

PREPARED STATEMENT OF PAUL G. CASSELL

Mr. Chairman and Distinguished Members of the Committee, I am pleased to be here today on behalf of the National Victims' Constitutional Amendment Network to testify in support of Senate Joint Resolution No. 3, the proposed Victims' Rights Amendment to the United States Constitution. The Amendment is strongly supported by the National Victims Constitutional Amendment Network, and the great bulk of the Network's members including many of the nation's largest and most prominent crime victims' organizations such as the National Organization for Victim Assistance (NOVA), Mother's Against Drunk Driving (MADD), and Parents of Murdered Children (POMC). I have previously provided general testimony to the Senate Judiciary Committee about why the Victims' Rights Amendment is a necessary step to for protecting crime victims,' and today will attempt to narrow my focus somewhat to issues that are apparently of specific interest to the subcommittee.

It is fitting that this hearing is being held on May 1 - Law Day — a day set aside by Act of Congress to reflect on our judicial system and to remember our legal liberties and legal protection of our rights. It is a day to celebrate the legal heritage of our country and our Constitution. But at the same time, it is a day for considering how our the legal system can be improved to protect the rights of all the people. Sadly, while our Constitution today has ample protections for those who commit criminal offenses, it contains no protections for those who have been victimized by criminal violence. Law Day is the appropriate day to move toward a constitutional amendment that will give victims of crimes of violence the rights they need and deserve.

A federal constitutional amendment for victims would be the capstone of a long-developing movement to protect the rights of crime victims. The United States Supreme Court has itself held that "in the admistration of criminal justice, courts may not ignore the concerns of victims." In furtherance of that goal, a majority of the states have passed amendments to their own state constitutions protecting victims' rights and more amendments are passed at every national election. It may be of particular interest here, for example, that Missouri passed its own state amendment in 1992,' with more than 85% of the electorate supporting the proposal. Even in those states without constitutional amendments, extensive statutory protections have promised to victims a considerable array of rights at every step in the criminal justice process, from the initiation of criminal cases through the trial through the sentencing and even, in many states, when decisions about whether to commute a sentence are under consideration. These enactments across the country provide strong evidence that the citizens of this country firmly believe that victims should be respected in the criminal process.

See The Victims' Rights Amendment: Hearings Before the Senate Comm, on the Judiciary, 106th Cong., 1st Sess. (Mar. 24, 1999); The Victims' Rights Amendment: Hearings Before the Senate Comm. on the Judiciary, 105th Cong., 2nd Sess. (Apr. 28, 1998); Crime Victims' Rights Amendment: Hearing Before the Senate Comm. on the Judiciary, 105th Cong., 1st Sess. (Apr. 16, 1997); The Victims' Bill of Rights Amendment: Hearings Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (April 23, 1996).

2 Morris v. Slappy, 461 U.S. 1, 14 (1983).

3 See MO. CONST., art. I, § 32.

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Yet while these enactments promise crime victims rights in the process, as a country we have yet to deliver. In too many cases, victims of criminal violence find that they are not consulted by those responsible for making criminal justice decisions. While the interests of criminal defendants are considered every step of the way, victims interests are too often forgotten. The United States Department of Justice has concluded that current protection of victims is inadequate, and will remain inadequate until a federal constitutional amendment is in place. As the Attorney General has explained, "These significant State efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights."*

My testimony today will attempt to explain why it is so important that victims of violent crimes be given the federal constitutional right to participate in all phases of the criminal justice process. My testimony is divided into four parts.

Part I develops the theoretical framework for victim participation, explaining both why victim participation is vital both for victims and for society as a whole. For victims, the mere act of participating in the criminal justice may serve valuable therapeutic goals. On the other hand, denying victims the chance to participate adds insult to injury by piling a government-inflicted harm on top of the injury inflicted by violent criminals. For these reasons and others, the proposed Victims' Rights Amendment contained in Senate Joint Resolution 3 extends to victims of violent crime the right to participate in the criminal justice process in appropriate ways. It guarantees that victims will receive notice of criminal justice events and that they can be heard at appropriate points in the process.

Part II applies this framework in the specific context of sentence commutation decisions, a subject apparently of considerable recent interest here in Missouri. Part II provides some historical background on the clemency process and then notes that many states have placed certain procedural requirements that the executive branch must follow in reaching clemency decisions. Many states require that the executive provide notice and an opportunity to be heard to prosecutors and sentencing judges before any final clemency determination is made. Increasingly in recent years, states are extending the same kind of notice and an opportunity to be heard to victims of the crime. This is the only approach that is fully consistent with the national recognition that victims properly have a role to play in the criminal justice process. In particular, the victims of crimes, including the surviving family members in homicide cases, are often in a unique position to provide information about the injuries inflicted by the criminal seeking clemency, an important factor that should be considered in any clemency determination. Part II concludes by suggesting some language that could be included in Senate Joint Resolution 3 to make certain that crime victims are not unfairly excluded from the clemency process.

Part III turns to the issue of why a federal constitutional amendment is needed to protect crime victims. Numerous reports from the states indicate that the current patchwork quilt of victims'

A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the Sen. Judiciary Comm., 105th Cong., 1st Sess. 41 (Apr. 16, 1997) (statement of Attorney General Janet Reno).

protections has failed to fully protect the interests of crime victims. Too often, the existing rights have been ignored or haphazardly implemented by the criminal justice system. The result has been a system that fail to deliver all the rights that have been promised to victims. The rights of victims of criminal violence will only be fully protected when enshrined in our nation's charter, the federal Constitution.

Finally, Part Part IV explain why the Senate Joint Resolution No. 3, although not going as far as some victims' advocates would like, would nonetheless be an giant step forward in protecting the rights of crime victims. It is a carefully crafted measure that provides all the "core" rights that the National Victims Constitutional Amendment Network and many other crime victims organizations have been seeking. While it extends only to victims of violent crimes and contains restrictions on the ways in which victims can enforce their rights, it undeniably would work a fundamental change in the criminal justice system by recognizing in our nation's charter that victims, too, deserve rights in the criminal justice process.

Before turning to these points, it may be a appropriate to give a bit of background information. I am a Professor of Law at the University of Utah College of Law, where I teach criminal procedure, criminal process, and a course devoted exclusively to the rights of crime victims I graduated from Stanford Law School in 1984, where I was president of the law review, and went on to clerk for then-Judge Antonin Scalia of the U.S. Court of Appeals for the District of Columbia and Chief Justice Warren Burger of the U.S. Supreme Court. I then served for two years as an Associate Deputy Attorney General in the United States Department of Justice and for three-and-ahalf years as an Assistant United States Attorney in the Eastern District of Virginia. Since assuming my teaching duties, I have represented crime victims (always on a pro bono basis) on a number of legal issues and written and lectured on the subject of crime victims' rights. I also serve on the executive board of the National Victim Constitutional Amendment Network, an organization devoted to bringing constitutional protection to crime victims across the country. I speak on its behalf today.

I. Victims Deserve to be Heard Throughout the Criminal Justice Process

Across the country, the law now recognizes the vital importance of victim participation in the criminal justice process. Thirty-one states have chiseled victims' rights into their respective constitutions. The federal government and the rest of the states have a vast array statutory rights for victims. In short, a consensus is developing around the country that victims deserve rights in the criminal justice process.

This recognition of victims of crime rests on several mutually supporting grounds. Allowing victim participation may help to allow the victim and family members harmed by the crime to recover, at least to some extent, from debilitating psychological injuries inflicted by the criminal. There is

See Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 UTAH L. REV. (forthcoming) (collecting citations).