general) "shall give written notice at least 15 days before a meeting to each victim of the crimes committed by each person whose application for clemency will be considered at the meeting, if the victim so requests in writing and provides his current address." In Ohio, three weeks before any pardon or commutation can be granted, the adult parole authority sends notice to the prosecuting attorney, presiding judge in the county of conviction, and "the victim or the victim's representative." If any pardon or commutation is granted, notice is likewise provided to the victim. In Wisconsin, notice of any pardon application shall be served on the prosecuting district attorney, the sentencing judge, and "[t]he victim or, if the victim is dead, an adult member of the victim's family." 6.5 966 Providing victims an opportunity to be heard before clemency decisions are made, as these states have done, makes considerable sense both as a matter of public policy and fundamental justice. Just as sentencing judges and prosecutors possess important information about a case, so too do victims have vital information about the effects of the crime that ought to be considered before any clemency decision is finalized. As the President's Task Force on Victims of Crime has explained, "No one know better than the victim how dangerous and ruthless the [clemency] candidate was before. ."67 Victim participation at the clemency stage is also vital to insure that victim participation at earlier points in the process is not rendered irrelevant. If makes little sense to give victims a right to be heard at proceedings concerning plea bargains, sentencing and parole (as provided in Senate Joint Resolution 3 and in the laws of Missouri and many states) if, after all that, a pardon or commutation can be granted without their involvement or, indeed, even their knowledge. Finally, it is important that victims be notified that a possible commutation of sentence when that commutation might entail release of an offender. Victims have legitimate interests, the President's Task Force concluded, "not only because of the desire for the service of a just sentence but also because of their legitimate fear of revictimization once the defendant is released." 68 In light of the need to protect victim involvement in the clemency process, it may well be desirable to amend Senate Joint Resolution 3 to general protect victims' interests in the clemency process, while at the same time leaving it to the states the craft the particular measures to effect those rights. Among the states, there appears to be growing agreement that victims deserve, at the very least, the rights to be notified of pending clemency decisions and to be heard, in an appropriate way, before any final clemency decision is made. Possible language that would protect these interests would be an amendment extending to victims' the right to: " to reasonable notice of and an opportunity to submit a statement concerning any proposed commutation of a sentence.' 63 NEV. REV. STAT. § 213.010. "OHIO REV. CODE ANN. § 2967.12, 65 Id 66 WIS. STAT. 304.09. 67 PRESIDENT'S Task Force on VICTIMS OF CRIME, FINAL REPORT 84 (1982). 68 Id. at 64. As used in this provision, “commutation" would include any alteration of a sentence, including not only a commutation of a sentence, but also a pardon, a reprieve, or a remission of fines or forfeitures. This is consistent with conventional legal usage." 69 Such a provision would insure that victims would neither be surprised by a commutation of a sentence nor denied the opportunity to be heard concerning that decision. Such provision would seem to be unobjectionable from a policy standpoint, but might be criticized as being too lengthy. A less prolix formulation would be add three words into the current language concerning the victims right to be heard. This formulation would change the Victims' Rights Amendment to read as follows: "A victim of a crime of violence... shall have the rights... to be heard, if present, and to submit a statement at all [public] proceedings to determine a conditional release from custody, an acceptance of negotiated plea, or a sentence[,] or a commutation....' " This formulation would insure that victims would be heard if a public proceeding of any sort were beld on the clemency application. While shorter than the alternative formulation, it might suffer from the possible disadvantage that it would not protect victims in situations were clemency decisions could be made by the executive without any sort of "proceeding." In Missouri, for example, it appears that public proceedings are not held on clemency decisions. Missouri law provides that: All applications for pardon, commutation of sentence or reprieve shall be referred to If Missouri law were clarified to require the board to hold a public hearing on clemency applications, then the shorter formulation would protect victims in Missouri. 69 See, e.g., BLACK'S LAW DICTIONARY (defining “commutation" in "criminal law" as "the change of a punishment to one which is less severe"). 70 MO REV. STAT. 217.800. A related provision provides: In the exercise of his powers under article IV, section 7 of the constitution of MO. REV. STAT. § 552.070. In considering these various formulations, the Committee may wish to carefully identify the procedures used to grant clemency in the various states and determine how victims' participation can best be protected in them. There seems little doubt, however, that victims' interests should be recognized in the clemency process. Victims are given rights at every step of the way leading up to the clemency decision. They deserve a voice in that ultimate decision as well. III. Federal Constitutional Protection is Necessary for to Fully Protect Victims' Rights. While victims' rights amendments and statutes have been passed across the country, there appears to be, unfortunately, a general recognized by those who have carefully studied the issue that these measures have been insufficient to fully protect the rights of crime victims. 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 explained: efforts to secure victims' rights through means other than a constitutional amendment A number of legal commentators have reached similar conclusions. For example, Harvard Law Professor Laurence Tribe has explained that the existing statutes and state amendments “are likely, as experience to date sadly shows, to provide too little real protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or any mention of an accused's rights regardless of whether those rights are genuinely threatened."" Similarly, Texas Court of Appeals Justice Richard Barajas has explained that “[i]t is apparent... that state constitutional amendments alone cannot adequately address the needs of crime victims." 973 That only a federal amendment will protect victims is the view of those in perhaps the best position to know: crime victims and their advocates. The Department of Justice recently convened a meeting of those active in the field, including crime victims, representatives from national victim advocacy and service organization, criminal justice practitioners, allied professionals, and many others. Their report — published by the Office for Victims of Crime and entitled "New Directions from the Field: Victims' Rights and Services for the 21st Century" - concluded that “[t]he U.S. 71 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). 72 Laurence Tribe, The Amendment Could Protect Basic Human Rights, HARV. L. BULL., Summer 1997, at 19, 20. 73 Chief Justice Richard Barajas & Scott Alexander Nelson, The Proposed Crime Victims' Federal Constitutional Amendment: Working Toward a Proper Balance, 49 BAYLOR L. REV. 1, 13 (1997). Constitution should be amended to guarantee fundamental rights for victims of crime.' went on to explain, A victims' rights constitutional amendment is the only legal measure strong enough 75 976 These impressionist conclusions find strong support in a December, 1998 report from the National Institute of Justice (NIJ) finding that many victims are denied their rights and concluding that "enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice.' The report found numerous examples of victims not provided rights to which they were entitled. For example, even in several states identified as giving "strong protection" to victims rights, fewer than 60% of the victims were notified of the sentencing hearing and fewer than 40% were notified of the pretrial release of the defendant.” A follow-up analysis of the same data found that racial minorities are less likely to be afforded their rights under the patchwork of existing statutes." In short, the reality today is that victims rights are often denied, as numerous examples of violations of rights found in the congressional record and elsewhere attest." Opponents of the Amendment offer no competing statistics, and such other data as exist tend to c.roborate the NIJ findings of substantial noncompliance.80 78 14 U.S. DEP'T OF JUSTICE, OFFICE FOR VICTIMS OF CRIME, NEW DIRECTIONS FROM THE FIELD: VICTIMS' RIGHTS AND SERVICES FOR THE 21ST CENTURY 9 (1998). 75 Id. at 10-12. 76 NAT'L INST. OF JUSTICE, RESEARCH IN BRIEF, THE RIGHTS OF CRIME VICTIMS -- DOES LEGAL PROTECTION MAKE A DIFFERENCE? 1 (Dec. 1998). " Id. at 4 exh. 1. 18 NATIONAL VICTIM CENTER, STATUTORY AND CONSTITUTIONAL PROTECTION OF VICTIMS' RIGHTS: IMPLEMENTATION AND IMPACT ON CRIME VICTIMS: SUB-REPORT ON COMPARISON OF WHITE AND NON-WHITE CRIME VICTIM RESPONSES REGARDING VICTIMS' RIGHTS 5 (1997). 19 See, e.g., 1998 Sen. Judiciary Committee Hearings [not yet in print] (statement of Marlene Young). 80 See, e.g.. SUSAN W. HILDENBRAND & BARBARA E. SMITH, VICTIMS RIGHTS LEGISLATION: AN ASSSSEMENT OF ITS IMPACT ON CRIMINAL JUSTICE PRACTITIONERS AND VICTIMS, A STUDY OF THE ABA CRIMINAL JUSTICE SECTION VICTIM WITNESS PROJECT 112 (1989) (prosecutors and victims consistently report that victims "not usually" given notice or consulted in 2 significant proportion of cases); Edna Erez, Victim Participation in Sentencing: And the Debate Goes On...3 INT'L REV. OF VICTIMOLOGY 17, 26 (1994) (finding victims rarely informed of right to make statements and victim impact statements not always prepared). Given such statistics, it is interesting to consider what the defenders of the status quo believe is an acceptable level of violation of rights. Suppose new statistics could be gathered that show that victims rights are respected in 75% of all cases, or 90%, or even 98%. America is so far from a 98% rate for affording victims rights that my friends on the front lines of providing victim services probably will dismiss this exercise as a meaningless law school hypothetical. But would a 98% compliance rate demonstrate that the amendment is "unnecessary"? Even a 98% enforcement rate would leave numerous victims unprotected. As the Supreme Court has observed in response to the claim that the Fourth Amendment exclusionary rule affects "only" about 2% of all cases in this country, "small percentages. mask a large absolute number of" cases." A rough calculation suggests that even if the Victims' Rights Amendment improved treatment for only 2% of the violent crime cases it affects, a total of about 30,000 victims would benefit each year. Even more importantly, we would not tolerate a mere 98% "success" rate in enforcing other important rights. Suppose that, in opposition to the Bill of Rights, it had been argued that 98% of all Americans could worship in the religious tradition of their choice, 98% of all newspapers could publish without censorship from the government, 98% of criminal defendants had access to counsel, and 98% of all prisoners were free from cruel and unusual punishment. Surely the effort still would have been mounted to move the totals closer to 100%. Given the wide acceptance of victims' rights, they deserve the same respect. 82 For reasons such as these, the Victims' Rights Amendment has attracted considerable bipartisan support, as evidenced by its endorsement by the President and strong approval in this Committee at the end of the 104th Congress.** Based on this vote, the widely-respected Congressional Quarterly has identified the Amendment as perhaps "the pending constitutional amendment with the best chance of being approved by Congress in the foreseeable future."85 * United States v. Leon, 468 U.S. 897, 907 n.6 (1984); see also CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 43-44 (1993). 82 FBI estimates suggest an approximate total of about 2,303,600 arrests for violent crimes each year, broken down as follows: 729,000 violent crimes within the crime index (murder, forcible rape, robbery, aggravated assault), 1,329,000 other assaults, 95,800 sex offenses, and 149,800 offenses against family and children. U.S. DEP'T OF JUSTICE, FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: CRIME IN THE UNITED STATES 1996 at 214 tbl.29 (1997). A rough estimate is that about two-thirds of these cases (66%) will be accepted for prosecution, either within the adult or juvenile system. See Brain Forst, Prosecution and Sentencing, in CRIME 363, 36(James Q. Wilson & Joan Petersilia eds. 1995). Assuming the Amendment would benefits 2% of the victims within these charged cases produces the figure in text. For further discussion of issues surrounding such extrapolations, see Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U.L. REV. 387, 438-40; Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions — And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 514-16 (1998). 33 See Announcement by President Bill Clinton on Victims Rights, available in LEXIS on Federal News Service, June 25, 1996. 4 See S. REP. No. 105-409 at 37 (Amendment approved by 11-6 vote). 85 Dan Carney, Crime Victims Amendment Has Steadfast Support, But Little Chance of Floor Time, CONG. QUART., July 30, 1998. |