lost income, funeral expenses in the case of homicide, and the costs of attending the trial.88

Each victim * ** shall have the rights

* **to consideration for the safety of the victim in determining a release from custody. * **

This provision guarantees that victims' safety will be considered by courts, parole boards, and other authorities in determining a discretionary release of an offender from custody 89 For example, in considering whether to release a suspect on bail, a court will be required to consider the victims' safety. This dovetails with the earlier-discussed provision giving victims a right to speak at proceedings to determine a "release from custody." Once again, it is important to emphasize that nothing in the provision gives the victim any sort of a veto over the release of a defendant (or, alternatively, any sort of prerogative to require the release of a defendant). To the contrary, to the provision establishes a requirement that fair "consideration" be given to such concerns in the process of determining release.

Part of that consideration will undoubtedly be whether the defendant should be released subject to certain conditions. One often-used condition of release is a criminal protective order.90 For instance, in many domestic violence cases, courts may release a suspected offender on the condition that he 91 refrain from contacting the victim. Undoubtedly in many cases, "consideration" of the safety of the victim will lead to courts crafting appropriate "no contact" orders and then enforcing them through the ordinary judicial processes currently in place.

Each victim *** shall have the rights *** to reasonable notice of the rights established by this article

Rights for victims are of little value if victims remain unaware of them. This provision establishes that victims will receive "reasonable" notice of the rights. In many states, notice of crime victims' rights is accomplished by providing information in a computer generated form letter advising a victim that charges have been filed. That is, for example, the procedure followed in many prosecutors' offices in Utah. The letter will also often notify the victim about who may be called to obtain additional information or services.9 92

As with other provisions in the amendment, the requirement here not an absolute one, requiring notice in all circumstances. Instead, the requirement is for "reasonable" notice, a term that will give appropriate latitude to those within the criminal justice system to respond to unforeseen or unforeseeable circumstances. It is instructive in this regard that the Fourth Amendment to the Constitution contains similar reasonableness standard in forbidding "unreasonable" searches and seizures. This flexible language has served the country well in allowing the courts to interpret the kinds of searches and seizures that are impermissible. As a leading constitutional scholar has recently explained, "The core of the Fourth Amendment *** [is] reasonableness." 93 This reasonableness approach is also appropriately employed in defining victims' rights.

SECTION 2

Only the victim or the victim's representative shall have standing to assert the rights established by this Article

This language confers standing on victims to assert their rights. Standing is a critically important provision that must be read in connection with all of the other provisions in the amendment. Under Section 1, victims will have extensive constitutional rights; under Section 2, they will have "standing" to enforce those rights.

This provision rests at the heart of the Crime Victims' Rights Amendment. With the Amendment in place, no longer could court's conclude that victims lack standing to even be heard about their rights. In previous testimony, I have explained in some detail how standing has proven to be a barrier to enforcement of congressional con

88 See 18 U.S.C. § 3663A.

89 In the case of a mandatory release of an offender (e.g., releasing a defendant who has served the statutory maximum term of imprisonment), there is no "determining" to be done and hence the provision is inapplicable, unless the law allows the imposition of conditions on such releases. 90 See generally Beloof, supra note 54, at 3-22 to 3-27.

91 Domestic violence defendants are predominantly, although not exclusively, male.

92 Some times notice to victims is misleadingly called "Miranda rights" for victims. The equation to the decision in Miranda v. Arizona is misleading. Not only is there the unfairness of comparing accused law violators with victims of those criminal violations, but rights for crime victims are not required to be delivered by police officers at a time when doing so might impede the criminal investigation.

93 Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 31 (1997).

ferred victims' rights in the Oklahoma City bombing case,94 so I will only briefly elaborate the point here. After victims of the bombing were denied their right under federal statute to attend a trial 95 (because they would be "witnesses" at the death penalty impact phrase 00f the proceedings), they sought review of the issue before the Tenth Circuit. The Court, however, concluded that they lacked standing under Article III of the U.S. Constitution to seek review of their claims.96 This forced Congress to respond by attempting to overrule the decision, which it did in the Crime Victims' Rights Clarification Act of 1997.97 Even that prompt response did not secure the right to attend the proceedings for all of the victims.98

The Crime Victims' Rights Amendment would eliminate once and for all the difficulty that crime victims have in being heard in court to protect their interests by conferring standing on the victim. Victim's "representative" can also be heard, permitting, for example, a parent to be heard on behalf of a child or a family member on behalf of a murder victim or a lawyer to be heard on behalf of a victim-client. The right is formulated in restrictive terms ("Only the victim *** shall have standing ***") to avoid the possibility that a defendant might somehow seek to take advantage of victims rights. This limitation prevents criminals from clothing themselves in the garb of a victim and claiming victims' rights.99 In Arizona, for example, the courts have allowed an unindicted co-conspirator to take advantage of a victims provision.100 Such a result is not permitted under the Crime Victims' Rights Amendment.

Nothing in this article shall provide grounds for the victim to challenge a charging decision or a conviction; to overturn a sentence or negotiated plea; to obtain a stay of trial; or to compel a new trial

This language restricts the remedies that victims may employ to enforce their rights. At the outset, I must give my own personal view that I do not support such a restriction in these terms. At the same time, however, I understand how reasonable minds can differ on such questions. 101

The basic dilemma posed by enforcement of victims' rights is whether victims are allowed to appeal a previously entered court judgment and reverse it for non-compliance with victims' rights. If victims are given such power, the ability to enforce victims' rights increases while the finality of court judgments is concomitantly reduced. Depending on the weight one assigns to the competing concerns, different approaches seem desirable. Indeed, allowing the possibility of victim appeals of plea bargain could, it has been argued, even redound to the detriment of crime victims generally by making plea bargains less desirable to criminal defendants and forcing crime victims to undergo more trials. 102

The Crime Victims' Rights Amendment strikes a compromise approach to this problem. It provides that "Nothing in this article" shall provide a victim with grounds for overturning a sentence or a plea, to stay a trial, or compel a new trial. Before turning to the precise parameters of this language, it is important to note that such enforcement issues will hopefully be relatively rare in the wake of the passage of a federal constitutional amendment. After the passage of such an amendment, virtually every judge, prosecutor, defense attorney, court clerk, and crime victim in the country would know about victims rights and that they were constitutionally protected in our nation's fundamental charter. This is an "enforcement" power that, even by itself, goes far beyond anything found in existing victims provisions. The mere fact that rights are found in the U.S. Constitution gives great rea

94 See 1997 Cassell testimony, supra note 1. I served as co-counsel in this litigation, along with Bob Hoyt, Karan Bhatia, and Arnon Seigel of the Washington, DC., law firm of Wilmer, Cutler & Pickering. In more recent litigation, Reg Brown has joined our team. This representation has all been done on a pro bono basis.

95 See 42 U.S.C. 10606(b)(4).

96 See U.S. v. McVeigh, 106 F.3d 325, 334-35 (10th Cir. 1997).

97 Pub. L. No. 105-6, codified in 18 U.S.C. § 3510.

98 See 1997 Cassell testimony, supra note 1.

99 E.g., Kan. Const. art. 15, §15(c) (similar restriction).

100 See Knapp v. Martone, 823 P.2d 685, 686-87 (Ariz. 1992) (en banc).

101 This is not to say that I believe victims should have unlimited rights to challenge proceedings. One alternative formulation was that found in S.J. Res. 6, which "Nothing in this article shall provide grounds for the victim to challenge a charging decision or a conviction; to obtain a stay of trial, or to compel a new trial." However, the differences between this formulation and that found in S.J. Res. 44 are relatively modest, and certainly provide no good basis for opposing the overall package of rights protected in S.J. Res. 44.

102 See Sarah N. Welling, Victim Participation in Plea Bargains, 65 Wash. U.L.Q. 301, 350 (1987). Wellington further argues against victim appeals of pleas be of double jeopardy concerns. Because such concerns have been eliminated by the "no overturning" provision in S.J. Res. 44, I will not discuss them further.

son to expect that they will be followed. Confirming this view is the fact that the provisions of our Constitution-freedom of speech, freedom of the press, freedom of religion are all generally honored even without a specific "enforcement" provision. The Crime Victims' Rights Amendment will eliminate what is perhaps the most common reason for failing to protect victims rights—simple ignorance about victims and their rights.

Similarly, the Crime Victims' Rights Amendment will eliminate the next most common reason for failing to protect victims rights: the misguided view that defendant's constitutional rights "trump" a victim's assertion of a right. In many of the litigated cases, victims rights have not been enforced because defendants have made vague, imprecise, and inaccurate 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 Crime 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 narrow subset of cases involving truly malevolent or badly misinformed actors in the criminal justice system.

Turning now to the specific language in the Amendment, it does not bar all possibility of, for example, 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 overturn a sentence or negotiated plea." The phrase "in this article" means that the Crime Victims' Rights Amendment-the “article" in constitutional terms-by itself does not automatically create a right to overturn a sentence or a plea. This is a limitation on the power of the Supreme Court to craft, on its own authority, judicial remedies for overturning sentences and pleas. Congress and the states would remain free to pass implementing statutes allowing such overturning in the appropriate circumstances, because these statutes would not be found "in this article." In other words, the "no overturning" language simply removes this aspect of the remedies question for the judicial branch and assigns it to the legislative branches in Congress and the states. Of course, it is in the legislative branch where the appropriate facts can be gathered and compromises struck to resolve which challenges, if any, are appropriate in that particular jurisdiction. Similarly, it should be noted that the language proscribes only certain victims' remedies, such as "overturning" a sentence. Accordingly, it would not bar remedies that fall such of overturning a sentence, such as merely modifying a sentence or remanding for a sentencing proceeding at which the victim would have an opportunity to make an impact statement. Similarly, the "no overturning" language is limited to pleas and sentences, not to other decisions such as parole.103

Nothing in this article shall give rise to a claim for damages against the United States, a State, a political subdivision, or a public official

One possible way of enforcing victims' rights is through a suit for money damages. Suits would create clear financial incentives for criminal justice agencies to comply with victims' rights requirements. Some states have authorized suits for such damages in limited circumstances. 104 On the other hand, civil suits filed by victims against the state suffer from several disadvantages. First and foremost, in a time of limited state resources and pressing demands for state funds, the prospect of expensive awards to crime victims might reduce the prospects of ever passing a Crime Victims' Rights Amendment. A related point is that such suits might give the impression that crime victims seek financial gain rather than fundamental justice. Because of such concerns, a number of states have explicitly provided that their victims' rights amendments create no right to sue for damages. 105 Other states have reached the same destination by providing explicitly that the remedies for violations

103 Cf. Bernant et al., supra note 5, at 131 (discussing existing right to overturn parole decisions in some states when victim was not notified).

104 See, e.g., Ariz. Rev. Stat. Ann. § 13-4437(B) (Supp. 1993) (“A victim has the right to recover damages from a governmental entity responsible for the intentional, knowing, or grossly negligent violation of the victim's rights.* *"); see also Davya B. Gewurz & Maria A. Mercurio, Note, The Victims' Bill of Rights: Are Victims All Dressed Up with No Place to Go?, 8 St. John's J. Legal Comment. 251, 262-65 (advocating civil suits for violations of victims' rights).

105 See, eg, Kan. Const. art. 15, § 15(b) ("Nothing in this section shall be construed as creating a cause of action for money damages against the state. **"); Mo. Const. art. 1, §32(3), (5) (same); Tex. Const. art. I, §30(e) ("The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section.").

of the victims' amendment will be provided by the legislature, and in turn by limiting the legislatively-authorized remedies to other-than-monetary damages. 106

The Crime Victims' Rights Amendment breaks no new ground but simply follows the prevailing view in denying the possibility of a claim for "damages" under the Amendment. For example, no claim could be filed for money damages under 18 U.S.C. § 1983 under the Amendment.

Because money damages are not allowed, what will enforce victims' rights? Of course, preliminarily it must be hoped that the need for lawsuits to enforce victims' rights will be unnecessary. The actors in the criminal justice system are under an obligation to follow the law in spite of the fact that damages are not a possibility. With the heightened awareness that comes from passing the federal constitutional amendment, the need for enforcement may be reduced considerably.

Beyond that hope, victims will be able to bring court actions to secure enforcement of their rights. For example, in the Oklahoma City bombing litigation, our procedural vehicle was a "writ of mandamus." Other possible relief might include injunctive relief. No doubt, some of these issues will be spelled out in implementing legislation. In my state of Utah, for example, the implementing statute to our state amendment provides for two kinds of suits. First, in situations where a state actor "willfully or wantonly fails to perform duties" covered by the Amendment or the Act, "an action for injunctive relief, including prospective injunctive relief, may be brought against the individual and the governmental entity that employs the individual." 107 For example, if a county attorney's office refuses to send required notices to crime victims, a victim or victims' group may bring an action seeking to enjoin the office to provide such notices. Second, victims may also bring an action for declaratory relief “defining the rights of victims and the obligations of government entities." 108 For example, if a court denies a victim her right to be heard at a sentencing hearing, she can file a motion for a declaratory judgment that she is entitled to speak. If the judge persists in denying the right to speak, an appeal may be taken from the adverse ruling under the rules governing appellate actions.109 The rules for appellate actions make provision for emergency or extraordinary writs, 110 which could be employed in situations where time is of the essence.

One obvious concern with the enforcement scheme is whether attorneys will be available for victims to assert their rights. No language in the Crime Victims' Rights Amendment provides a basis for arguing that victims are entitled to counsel at state expense.111 To help provide legal representation to victims, implementing statutes might authorize prosecutors to assert rights on behalf of victims. In Utah, for example, our statutes provides for such assertion,112 which has allowed prosecutors schooled in the nuances of criminal procedure to assist victims in protecting their rights.

SECTION 3

The Congress and the States shall have the power to implement and enforce this article within their respective jurisdictions by appropriate legislation, including the power to enact exceptions when necessary to achieve a compelling interest This language confers on Congress and the States the power to enforce the Crime Victims' Rights Amendment. Similar language is found in Section 5 of the Fourteenth Amendment, which provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."113 The Supreme Court has described Section 5 as "a positive grant of legislative power" to Congress.114 Similarly, the Court has defined Congress' section 5 power in the broad terms: "What legislation is appropriate, that is, adapted to carry out the objects the amendment[] * *

*

106 See, eg, Ill. Const. art. I, §8.1(b) ("The General Assembly may provide by law for the enforcement of this section."); Ill. Ann. Stat. ch. 725 para. 120/9 (Smith Hurd Supp. 1994) ("This Act does not * * * grant any person a cause of action for damages which does not otherwise exist.").

107 Utah Code Ann. §77-38-11(1) (Supp. 1994).

108 Id. §77-38-11(2)(a). For declaratory judgment procedures, see id. §§ 78-33-1 to -13.

109 Utah Code Ann. §77-38-11(b) (Supp. 1994); see Statutory Provisions on Crime Victims' Rights: Hearings on S.B. 156 Before the Senate Judiciary Comm., 50th Utah Leg., Gen. Sess. (Feb. 11, 1994) (statement of Sen. Craig A. Peterson, S.B. 156 sponsor) (Sen. recording B) ("The appellate court becomes the court of victims rights enforcement. Where an issue has been identified as substantive, the appellate courts would have the oversight authority.").

110 Utah R. App. P. 19.

111 Cf. Gideon v. Wainwright, 372 U.S. 335 (1963) (defendant's have a right to state-paid counsel).

112 Utah Code Ann. §77-38-9(6) (Supp. 1994).

113 U.S. Const. amend. XIV, §5.

114 Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).

is brought within the domain of congressional power." 115 The enforcement provision of the Crime Victims' Rights Amendment should be interpreted in a similar fashion to Section 5, with two distinctions.

*

First, the Crime Victims' Rights Amendment enforcement power rests not exclusively in the Congress, but rather in "[t]he Congress and the States * ** within their respective jurisdictions. * *" This is a recognition that the criminal justice "system" around the country is in fact composed of various systems, both state and federal. The enforcement provision recognizes this federalist system by allowing Congress and the States the enforcement power within their respective jurisdictions. Second, the "enforcement" power in the Crime Victims' Rights Amendment is somewhat broader than the power in Section 5, since the enforcement power includes not only the power to "enforce" but also the power to "implement." This language is necessitated by the Supreme Court's recent decision in City of Boerne v. Flores, 116 which struck down the Religious Freedom Restoration Act of 1993.117 In that decision the Court described Congressional power to enforce the Fourteenth Amendment in rather crabbed terms.118 To avoid the possibility that the Court could strike down victims implementing legislation as beyond the power of Congress or the Courts, the Crime Victims' Rights Amendment specifically authorizes implementation. While this broadens Congressional and State power under the Amendment, it does not create power. to establish constitutional rights. Congress and the states cannot use this power to modify substantive constitutional law. For example, Congress and the states could not, under the Crime Victims' Rights Amendment, claim to be "implementing" the Amendment by modifying any of the constitutional rights of criminal defendants.

The provision also gives Congress and the states the ability to "enact exceptions when necessary to achieve a compelling interest." This provision is designed to respond to suggestions that have occasionally been made that, in some rare cases, it would be impossible to provide rights to crime victims. Those suggestions are rarely fleshed out in any tangible way; nor are they based on real world examples of difficulties in implementing state constitutional provisions protecting victims rights. Accordingly, my sense is that the ability to enact exceptions will prove to be a safeguard against purely imaginary dangers. Should such dangers materialize, however, the Amendment empowers Congress and the states to respond by enacting exceptions. Exceptions must serve a "compelling interest," a standard with which the courts are familiar. 119

SECTION 4

The rights established by this article shall apply to all proceedings that begin on or after the 180th day after ratification of this article

This straightforward provision gives federal and state courts ample time to prepare to administer the new rights. The provision applies to "proceedings" that apply after 180 days, not crimes that are committed after 180 days. This raises no ex post facto concerns because the Crime Victims' Rights Amendment does not enlarge the criminal penalties to which defendants are subject. It is well established that "to fall within the ex post facto prohibition, a law must be retrospective that is 'it must apply to events occurring before its enactment'-and it 'must disadvantage the offen4er affected by it' by altering the definition of criminal conduct or increasing the punishment for the crime." 120 The only possible argument that ex post facto concerns are implicated is that the Crime Victims' Rights Amendment might increase the restitution orders to which defendants are subject. However, the restitution envisioned by the Amendment is not "punishment" of defendants, but rather compensation for victims, and thus raises no ex post facto issues.

115 In Ex part Virginia, 100 U.S. 339, 345–46 (1879).

116 117 S.Ct. 2157.

117 107 Stat. 1488, 42 U.S.C. §2000bb et seq.

118 See generally Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997).

119 See, e.g., Timmons v. Twin Cities Area New Party, 117 S.Ct. 1364, 1368-70 (1997) (discussing "compelling state interest" standard in a First Amendment context).

120 Lynce v. Mathis, 117 S.Ct. 891, 896 (1997) (citations omitted).