1986 In theory, of course, victims' rights could be safeguarded without a constitutional amendment. It would only be necessary for actors within the criminal justice system — judges, prosecutors, defense attorneys, and others -to suddenly begin fully respecting victims' interests. The real world question, however, is how to actually trigger such a shift in the Zeitgeist. For nearly two decades, victims have obtained a variety of measures to protect their rights. Yet, the prevailing view from those who work in the field is that these efforts "have all too often been ineffective." Rules to assist victims "frequently fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, or sheer inertia . . . . The view that state victims provisions have been and will continue to be often disregarded is widely shared, as some of the strongest opponents of the Amendment seem to concede the point. For example, Ellen Greenlee, President of the National Legal Aid and Defender Association bluntly and revealingly told Congress that the state victims' amendments "so far have been treated as mere statements of principle that victims ought to be included and consulted more by prosecutors and courts. A state constitution is far... easier to ignore than the federal one.' "It is time to stop ignoring crime victims and their rights. Senate Joint Resolution 3 provides a means for doing so. IV. Senate Joint Resolution 3 Will Improve the Treatment of Crime Victims Throughout the To deal with the failure to fully implement crime victims rights, Senate Joint Resolution 3 would amend the federal constitution by establishing á list of protected rights for crime victims. This would follow in a venerable constitutional tradition, as Harvard Law Professor Laurence Tribe and I have explained: [The proposed Victims' Rights Amendment] would protect basic rights of crime victims, including their rights to be notified of and present at all proceedings in their case and to be hard at appropriate stages in the process. These are rights not be victimized again through the process by which government officials prosecute, punish, and release accused or convicted offenders. These are the very kinds of rights with which our Constitution is typically and properly concerned — rights of individuals to participate in all those government processes that strongly affect their lives.* 89 Moreover, constitutional recognition of victims would guarantee that our criminal justice process 86 Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. TIMES, July 6, 1998, at B5. See, e.g., 1996 Sen. Judiciary Comm. Hearings, supra note 1, at 109 (statement of Steven Twist); id. at 30 (statement of John Walsh); id. at 26 (statement of Katherine Prescott). 87 See Tribe & Cassell, supra note 86, at B5. 88 Proposals for a Constitutional Amendment to Provide Rights for Victims of Crime: Hearings Before the House Judiciary, 104th Cong., 2d Sess. 147 (1996). 89 Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. TIMES, July 6, 1998, at B7. operates in a fully democratic fashion. President Clinton articulated this point in endorsing the proposed amendment in a Rose Garde ceremony: Participation in all forms of government is the essence of democracy. Victims should be guaranteed the right to participate in proceedings related to crimes committed against them. People accused of crimes have explicit constitutional rights. Ordinary citizens have a constitutional right to participate in criminal trials by serving on a jury. The press has a constitutional right to attend trials. All of this is as it should be. It is only the victims of crime who have no constitutional right to participate, and that is not the way it should be." The Amendment would also provide particular benefits to victims of domestic violence and battered women, who are all too often mistreated in our criminal justice system. Joan Zorza, then Chair of the Legislative Committee of the National Coalition Against Domestic Violence, has expressed her view that a federal amendment "is the only way to rebalance the criminal justice system so that the victim's safety and her role in the process will be seen as fundamental to nor conflicting with the system as a whole."9! —not extraneous 90 See Announcement by President Bill Clinton on Victims Rights, available in LEXIS on Federal News Service, June 25, 1996 91 Joan Zorza, Victims' Rights Amendment Empowers All Battered Women, (www.nvc.org/news/tr/battwom.htm). In some unusual cases, victims of domestic violence end up as defendants in the criminal justice system even where they are the victim, rather than the perpetrator, of a crime. In such situations, the victim of domestic violence will not be in any way harmed by the passage of the Victims' Rights Amendment, just as other criminal defendants will not be harmed.. Professor Laurence Tribe, for example, has concluded that the proposed Amendment is "a carefully crafted measure, adding victims' rights that can coexist side by side with defendant's." See Tribe & Cassell, supra note 86, at B5. Similarly, Senator Joseph Biden agrees that "I am now convinced that no potential conflict exists between the victims' rights enumerated in the [proposed Amendment] and any existing constitution right afforded to defendants." S. REP. 105-409 (additional views of Sen. Biden). A recent summary of the available research on the purported conflict of rights supports these views, concluding that the studies show that there "is virtually no evidence that the victims' participation is at the defendant's expense." Richard Barajas & Scott Alexander Nelson, The Proposed Crime Victims' Federal Constitutional Amendment: Working Toward a Proper Balance, 49 Baylor L. Rev. 1, 18-19 (1997) (internal quotation omitted). As an additional protection for domestic violence victims and others unfairly entangled in the criminal justice system, the Victims' Rights Amendment provides that exceptions can be made for "compelling reasons." As a way of illustrating what exceptions might be appropriate, the Senate Judiciary Committee report specifically indicated that “in some cases of domestic violence, the dynamics of victim-offender relationships may require some modification of otherwise typical victims' rights provisions. This [exceptions] provision offers the flexibility to do just that." S. REP. NO. 105-409 at 36. While Senate Joint Resolution 3 would go a long way towards insuring victims a right to participate in criminal proceedings, there are those who claim that it does not go far enough. To be sure, no matter how broadly the Amendment were drafted, it would always possible to add additional protections for victims. The relevant question today is whether Senate Joint Resolution 3 strikes a reasonable balance between protecting the rights of crime victims while at the same time reflecting consensus measures that will attract the necessary political support to for passage. It is well known that obtaining approval for a constitutional amendment is a difficult process. Two-thirds of both Houses of Congress must approve any amendment before sending it along for ratification by threequarters of the states. Thus, a constitutional amendment must command broad support from all quarters of the political spectrum. 92 Against this backdrop, it is unsurprising to find that Senate Joint Resolution 3 contains some compromises in it. It does not - nor will any real amendment ever — contain everything that the victims' rights movement has ever sought. Even so, Senate Joint Resolution 3 contains an extensive list of constitutional rights for crime victims. It would give victims of crimes of violence the constitutional rights to each of the following: 1. "[T]o reasonable notice of.... all public proceedings related to the crime”; 5. "To reasonable notice of a release or escape from custody relating to the crime"; 6. "To consideration for the interests of the victim in a trial free from unreasonable delay"; 7. "To an order of restitution from the convicted offender"; 8. "To consideration for the safety of the victim in determining any release from custody"; and 9. "To reasonable notice of the rights established by this article." This list of rights includes, in the judgment of the National Victims Constitutional Amendment Network, all of the "core" rights that the victims' movement seeks in a constitutional amendment. Concerns have been expressed, however, about two features of Senate Joint Resolution 3: first, its limitation to "crimes of violence," and second, its limitations on the mechanisms for enforcing the rights. These two issues are addressed in the following two sections. A. Limitation to victims of "a crime of violence" Senate Joint Resolution 3 extends constitutional rights to "[a] victin of a crime of violence." 92 See U.S. CONST. art. V. This limitation means that victims of a "property" crime would not be protected constitutionally, while victims of a crime of violence would be protected. In not automatically extending all rights to all crime victims, Senate Joint Resolution 3 follows in a long line of state amendments, state amendments it should be recalled that form the basis for assessing the national consensus that must underlie any federal amendment. Many if not most state amendments protect crime victims "as defined by law." The Missouri amendment is typical on this point. It provides "crime victims, as defined by law, shall have the following rights, as defined by law. . . ."94 Thus, the citizens of Missouri have implicitly suggested that which victims deserve protection in the state constitution does not automatically comprehend all victims, but instead can be left to legislative discretion." The state definitions of “victims” have typically not included all victims for all purposes, and in some cases have been restricted to victims of crimes of violence. The Illinois Constitutional Amendment, widely endorsed by victims' advocates, illustrates this point. After the amendment was passed, victims as “defined by law" included “any person against whom a violent crime has been committed."96 Similarly, the Arizona amendment, often regarded as among the best state amendments, defined "victim" in the constitution as “a person against whom the criminal offense has been committed." 97 The legislature was given the power to "define" these terms, which it did by limiting the phrase "criminal offense" to mean “conduct that gives a peace officer or prosecutor probable cause to believe that a felony or that a misdemeanor involving physical injury, the threat of physical injury or a sexual offense has occurred.""* At least one state amendment has been limited to victims of felony crimes." At least one state amendment has been further restricted specifically to victims of crimes of violence.100 Indeed most of the state amendments do not cover all victims of all crimes.11 Federal statutes also extend rights to victims of crimes of violence, 102 and some of the 93 See, e.g., ILL. CONST. § 8.1(a) (extending rights to "crime victims, as defined by law"). See MO. CONST., art. I, § 32 (emphasis added). 95 The Missouri legislature ultimately passed a broad statutory definition of which victims qualify for protection that embraces all "natural person[s] who suffer[] direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime." MO. REV. STAT. 595.200(6). But the point remains that, in principle, the Missouri amendment itself, endorsed by many of Missouri's leading crime victims' advocates, recognizes that distinctions can be drawn among different victims of crimes. 9% ILL. CORP. STAT., ch. 725 CT 120 § 3. In 1994, the definition was broadened slightly in include, inter alia, “a person who suffers injury to or loss of property as a result of a violent crime perpetrated or attempted against that person." Id. "See WASH. CONST., art. I, § 25 (extending right to "a victim of a crime charged as a felony"); see also MD. CONST. (similar limitation). 100 See NEW MEX. CONST. art. 2, § 24 (extending rights to "the victim of a violent crime"). 101 See, e.g.. COLO. STAT. ANN. § 24-4.1-302 (extending rights to victims of various crimes of violence such as murder, kidnaping, sexual assault, robbery, child abuse, and domestic violence); FLA. STAT. ANN. § 960.001 (limiting rights to notice to cases of homicide, sexual assault, attempted recommendations of the President's Task Force on Victims of Crime extended only to victims of crimes of violence.103 Statistically speaking, crimes of violence are the predominant concern of the crime victims' movement. To be sure, there are more property crime cases than violent crime cases. But we should not equate a homicide or rape with a petty larceny in determining this issue. Instead, we need to look at other measures, such as the number of litigated cases involving the rights of crime victims — a measure of the intensity with which victims are concerned about their rights. Of the cases that have been litigated involving victims rights, I estimate that over 90% involved crime of violence that would be covered by Senate Joint Resolution 3. Similarly, the National Organization for Victim Assistance (NOVA) estimates that of the thousands of calls its receives from victims all over the country every year to its national toll-free 800 number (1-800-TRYNOVA), more than 95% are from victims of crimes of violence who are covered by the Amendment. None of this is to suggest in any way that victims of property crimes can have very substantial interests in the criminal justice process. I understand that the subcommittee may indeed hearing testimony concerning such victims and they have very legitimate interests in having full and enforceable rights in the criminal justice process. Indeed, the National Victims' Constitutional Amendment Network would not support Senate Joint Resolution 3 unless it were convinced that the Resolution would do considerable good not only in the more than 90% of contested cases involving victims of violent crimes but also in the remaining cases involving victims of property crimes to which it does not directly apply. For example, a major concern of victims of non-violent crime is restitution. The passage of the constitutional amendment, with its provision conferring a right to “an order of restitution from the convicted offender," will likely spur adoption of implementing language in Congress and all fifty states. No doubt the implementing language will cover, among other issues, restitution. In all likelihood the implementing language will establish superior mechanisms for collecting restitution that will be of benefit to all victims. Moreover, even apart from specific implementing language, a Victims' Rights Amendment will create a judicial “mindset" that is quite favorable to all victims. Judges will become used to ordering full restitution and it will no longer be the exceptional or unusual event that it too often is today,. Nor would defendant's be able to argue that ordering restitution somehow deprived them of constitutional rights. Judges would know that ordering restitution was the routine, not the exception. This hope that the legislature, courts, and criminal justice officials would broaden the effective reach of victims' rights beyond the confines of homicide, domestic violence, or stalking); IDAHO STAT. ANN. § 19-5306 (extending rights to victims of felony or a misdemeanor involving physical injury, threat of physical injury, or a sexual assault); TEXAS CODE CRIM. P. art. 56.01 (extending rights to victims of sexual assault, kidnaping, aggravated robbery, or crimes involving bodily injury or death). 102 See, e.g., Fed. R. Crim. P. 32 (extending right of allocution to a victim of a crime of violence). 103 See PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT 76-77 (1982) (recommending that "victims of violent crime" should have the right to make a statement at sentencing). |