what the amendment requires is realistic - for, as victims advocates have repeatedly pointed out, this is exactly the experience they have had in their states after a less-than-ideal amendment was adopted.

37104

105

Occasionally it has been argued that Senate Joint Resolution 3 would somehow be "unique" in the annals of American constitutional law in extending rights only to a certain "subgroup" of citizens or of crimes. This claim is incorrect. The United States Constitution already contains a whole host of provisions that, as written or interpreted, draw such distinctions between individuals and between crimes, often for no reason other than administrative convenience. For instance, the right to a jury trial extends only to cases "where the value in controversy shall exceed twenty dollars." Even narrowing our view to criminal cases, frequent line-drawing exists. For instance, the Fifth Amendment extends to defendants in federal cases the right not to stand trial "unless on a presentment or indictment of a Grand Jury" - however, this right is limited to a "capital or otherwise infamous crime," and, in any event, it is not extended to any state prosecutions. The Sixth Amendment seemingly extends to "all criminal prosecutions,"" 106 but courts have drawn various limiting lines. For instance, the Amendment's right to trial “by an impartial jury" does not extend to "petty crimes or offenses." The Sixth Amendment's right "to the assistance of counsel" applies to all offenses, but the Supreme Court has spoken of the right to court-appointed counsel at state expense as extending only to "indigent" defendants without precise definition. State and federal appellate courts have then developed "a series of guidelines for determining indigency."108 The "subgroup" of defendants charged with treason are given special protection so as not to be convicted "unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."109

As a final point in the legal analysis, it is important to understand how broadly the phrase "crime of violence" extends. The Senate Judiciary Committee report on this provision noted that this phrase

extends broadly to all forms of homicide (including voluntary and involuntary
manslaughter and vehicular homicide), sexual assault, kidnaping, robbery, assault,
mayhem, battery, extortion accompanied by threats of violence, carjacking, vehicular
offenses (including driving while intoxicated) which result in personal injury, domestic
violence and other similar crimes. A "crime of violence" can arise without regard to
technical classifications of the offense as a felony or a misdemeanor. 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.... Similarly, some

104 U.S. CONST. amend. VII.

105 U.S. CONST. amend. V.

106 U.S. CONST. amend. VI.

107 Duncan v. Louisiana, 393 U.S. 145 (1968); see also Baldwin v. New York, 399 U.S. 66 (1970) (“petty" offenses involves authorization for less than six months imprisonment).

108

LAFAVE & ISRAEL, CRIMINAL PROCEDURE § 11.2(g) (2d ed. 1992).

109 U.S. CONST. art. 3, § 3.

crimes are so inherently threatening of physical violence that they could be "crimes
of violence" for purposes of the amendment. Burglary, for example, is frequently
understood to be a "crime of violence" because of the potential for armed or other
dangerous confrontation. . . . [S]exual offenses against a child, such as child
molestation, can be "crimes of violence" because of the fear of the potential for force
which is inherent in the disparate status of the perpetrator and victims and also
because evidence of severe and persistent emotional trauma in its victims gives
testament to the molestation being unwanted and coercive. . . . .Finally, an act of
violence exists where the victim is physically injured, is threatened with physical
injury, or reasonably believes he or she is being physically threatened by criminal
activity of the defendant. For example, a victim who is killed or injured by a driver
who is under the influence of alcohol or drugs is the victim of a crime of violence, as
is a victim of stalking or other threats who is reasonably put in fear of his or her
safety.10

With all this said, I should state my own view that I would prefer a Victims' Rights Amendment that extended beyond crimes of violence. I preferred, for example, the formulation used in the Amendment in a previous Congress, that extended to victims of crimes of violence and other crimes as a defined by Congress. It appears, however, that the political support to pass this broader formulation is lacking, and Senators Kyl and Feinstein have, with great reluctance, acceded to the narrower formulation because the alternative — passing no Victims' Rights Amendment at all — is clearly so much less desirable. Crime victims cannot let the perfect become the enemy of the good. Senate Joint Resolution 3 extends rights to most cases where they are most desperately need. That is why most cri victims' organizations who are members of the National Victims Constitutional Amendment Network have strongly endorsed it.

B. Enforcement Issues

Senate Joint Resolution 3 also contains certain restrictions on the manner in which the extensive list of rights conferred on victims can be enforced. Here again, the extent of the restrictions should not overstated. Section 3 provides:

Only the victim or the victim's lawful representative shall have standing to assert the
rights established by this article. Nothing in this article shall provide grounds to stay
or continue any trial, reopen any proceeding or invalidate any ruling, except with
respect to conditional release or restitution or to provide rights guaranteed by this
article in future proceedings, without staying or continuing a trial. Nothing in this
article shall give rise to or authorize the creation of a claim for damages against the
United States, a State, a political subdivision, or a public officer or employee.'''

110 S. Rep. No. 105-409 at 24.

IS.J. RES. 3, § 2 (1999).

This language was not invented solely for the federal amendment. To the contrary, it follows on the heels of similar language in a number of state victims' amendment. It is instructive on this point, for example, to consider the language in the Missouri amendment, which provides:

3. Nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality, or any of the agencies, instrumentalities, or employees provided that the General Assembly may, by statutory enactment, reverse, modify, or supercede any judicial decision or rule arising from any cause of action brought pursuant to this section.

4. Nothing in this section shall be construed to authorize a court to set aside or to void a finding of guilt, or an acceptance of a plea of guilty in any criminal

The Missouri provision is by no means unique, as virtually every other state amendment contains, either directly or indirect, provisions limiting the manner in which they can be enforced. Senate Joint Resolution 3, then, simply reflects the current consensus in the states that means of enforcing victims' rights cannot be unlimited.

In analyzing the effect of Section 3's restrictions on enforcement, they must be read in connection with all of the other provisions in the proposed Amendment. Under Section 1, victims will have extensive constitutional rights, and under Section 2, they will have “standing" to enforce those rights. The only effect of Section 3 is to limit the manner of enforcing some of these rights. In assessing the effect of this limitation, we must bear in mind how radically different the legal landscape would look with all of the Section I rights in place. If a Victims' Rights Amendment passes Congress and is ratified by the states, virtually every judge, prosecutor, defense attorney, court clerk, governor, and crime victim in the country would know about victims rights and that they were constitutionally protected in our nation's fundamental charter. Both the House and Senate of the United States Congress would pass the measure by two-thirds votes and then a full three-quarters of the states would ratify the provision."3 No doubt these events would generate dramatic public awareness of the nature of the rights and the importance of providing them. In short, the adoption of the Amendment would constitute a major national event. One might even describe it as a "constitutional moment" (of the old fashioned variety) where the nation recognizes the crucial importance of protecting certain rights for its citizens. 114

Were such events to all occur, the lot of crime victims likely would improve considerably. The available social science research suggests that the primary barrier to successful implementation of victims' rights is "the socialization of [lawyers] in a legal culture and structure that do not

112 MO. CONST., art. I, § 32.

113 See U.S. CONST., art. V.

114

moments").

Cf. 1 BRUCE ACKERMAN, WE THE PEOPLE passim (1990) (discussing "constitutional

recognize the victim as a legitimate party in criminal proceedings." Even a critic of the amendment, Professor Mosteller, seems to agree with this view, explaining that "officials fail to honor victims' rights largely as a result of inertia and past learning, insensitivity to the unfamiliar needs of victims, lack of training, and inadequate or misdirected institutional incentives."116

A constitutional amendment, reflecting the instructions of the nation to its criminal justice system, is perfectly designed to attack these problems and develop a new legal culture supportive of victims. To be sure, one can paint the prospect of such a change in culture as "entirely speculative.' 7 Yet this means nothing more than that, until the Amendment passes, we will not have an opportunity to precisely assay its positive effects. Constitutional amendments have changed our legal culture in other areas, and clearly the logical prediction is that a victims' amendment would go a long way towards curing official indifference.

This hypothesis is also consistent with the findings of the NIJ study on state implementation of victims' rights. The study concluded that “[w]here legal protection is strong, victims are more likely to be aware of their rights, to participate in the criminal justice system, to view criminal justice system officials favorably, and to express more overall satisfaction with the system.' 18 It is hard to imagine any stronger protection for victims' rights than a federal constitutional amendment. Moreover, we can confidently expect that those who will most often benefit from the enhanced consistency in protecting victims' rights will be members of racial minorities, the poor, and other disempowered groups. Such victims are the first to suffer under the current, “lottery” implementation of victims' rights."

119

In short, the mere passage of a constitutional amendment is an "enforcement" power that, even by itself, goes far beyond anything we have today in any of the state amendments. The simple fact that rights are found in the United States Constitution gives great reason to expect that they will be followed. Confirming this view is the fact that other provisions of our Constitution — freedom

115 Erez, Victim Participation, supra note 80, at 29; see also WILLIAM PIZZI, TRIALS WITHOUT TRUTH (1999) (discussing problems with American trial culture); William Pizzi, Rethinking Our System, 1999 UTAH L. REV. (forthcoming) (noting trial culture emphasis on winning and losing that may overlook victims); William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 STAN. J. INT'L L. 37, 41 (1996) ("So poor is the level of communication that those within the system often seem genuinely bewildered by the victims' rights movement, even to the point of suggesting rather condescendingly that victims are seeking a solace from the criminal justice system that they ought to be seeking elsewhere") 116 Robert Mosteller, The Victims' Rights Amendment: The Unnecessary Amendment, 1999 UTAH L. REV. (forthcoming).

117 Id.

118 NIJ Study, supra note 76, at 10.

119 See supra note 81 (finding minority victims least likely to be afforded rights today). Cf. Lynn Henderson, Victim's Rights in Theory and Practice, 1999 UTAH L. REV. (forthcoming) (criticizing "lottery approach to affording victims' rights).

of speech, freedom of the press, freedom of religion — are all generally honored even without specific "enforcement" provisions.

Senate Joint Resolution 3 also eliminates another common reason for failing to protect victims rights: the misguided view that a defendant's constitutional rights “trump" a victim's assertion of a right. In a number of cases, victims' rights have not been enforced because defendants have made vague and imprecise claims about their federal constitutional “due process" rights being violated. Those claims would be unavailing after the passage of a federal amendment. For these reasons, the mere fact of passing a Victims' Rights Amendment can be expected to bring a dramatic change to the way in which victims rights are enforced even were no enforcement actions to be brought by victims and their advocates. The remaining enforcement problems will be limited to the truly narrow subset of cases involving truly malevolent or badly misinformed actors in the criminal justice system.

Turning now to the specific effect of the Section 3 language, the provision will have no bearing on the enforcement of many victims' rights. The language specifically allows victims to seek to enforce rights "in future proceedings...." Thus, the limitation can have no effect on the victims' interest in enforcing the right to a trial free from "unreasonable delay," since by definition the right can only concern future proceedings.

Even with respect to rights that are potentially implicated by the "no invalidating” language in Section 3, the only remedy that is restricted is the appellate remedy of “invalidating” a previously made ruling. If the trial court mistakenly denies a right to a victim, it would be free to correct the error. Rectifying that mistake would not be "invalidating" the trial court's sentence or plea. As the Senate Judiciary Committee report on this language explained, “Of course, limits on the ability of victims to 'invalidate' a court ruling do not forbid a victim from asking a court to reconsider its own ruling or restrict a court from changing its own ruling." 120 Thus, the only practical effect that the provision will have is curtailing the ability of victims to obtain an appellate remedy, and even there, only where that appellate would necessitate reversing some previously-entered order that relate to issues that cannot be remedied prospectively. In the real world, victim appeals will be extraordinarily rare under any conceivable constitutional amendment, so we are discussing what can only be regarded as a subsidiary issue.

The provision also allows invalidating rulings "with respect to conditional release or restitution." Thus, if a sentence were to be imposed without restitution to the victim, remanding for resentencing at which restitution would be included in the sentence is expressly permitted; if a bail decision were reached without involvement by victim, the victim could demand a new bail hearing.

It is also vitally important to remember that the provision in Senate Joint Resolution 3 will not bar all possibility of victims overturning a sentence or a plea as a means of enforcing the amendment. The provision is found in a section that reads "nothing in this article shall provide grounds to... ." The phrase "in this article" means that the Victims' Rights Amendment the "article" in

120 S. REP. NO. 105-409 at 34.