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4/22/04  -  Crime Victims' Rights Act, S. 2329 passed in the Senate by 96 - 1 vote!

 

S 2329 HDS

108th CONGRESS

2d Session

S. 2329

To protect crime victims' rights.

 

IN THE SENATE OF THE UNITED STATES

 

April 21, 2004

 

Mr. KYL (for himself, Mrs. FEINSTEIN, Mr. HATCH, Mr. LEAHY, Mr. FRIST, Mr. DASCHLE, Mr. MCCONNELL, Mr. DURBIN, Mr. GRASSLEY, Mr. KENNEDY, Mr. DEWINE, Mr. FEINGOLD, Mr. CRAIG, Mr. KERRY, Mr. GRAHAM of South Carolina, Mr. SCHUMER, Ms. COLLINS, Mr. BAYH, Mr. LIEBERMAN, Mrs. CLINTON, Mr. PRYOR, Ms. STABENOW, and Mr. NELSON of Florida) introduced the following bill; which was read twice and ordered held at the desk


A BILL

 

To protect crime victims' rights.

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act'.

SEC. 2. CRIME VICTIMS' RIGHTS.

(a) Amendment to Title 18- Part II of title 18, United States Code, is amended by adding at the end the following:

`CHAPTER 237--CRIME VICTIMS' RIGHTS

`Sec.

`3771. Crime victims' rights.

`Sec. 3771. Crime victims' rights

`(a) RIGHTS OF CRIME VICTIMS- A crime victim has the following rights:

`(1) The right to be reasonably protected from the accused.

`(2) The right to reasonable, accurate, and timely notice of any public proceeding involving the crime or of any release or escape of the accused.

`(3) The right not to be excluded from any such public proceeding.

`(4) The right to be reasonably heard at any public proceeding involving release, plea, or sentencing.

`(5) The right to confer with the attorney for the Government in the case.

`(6) The right to full and timely restitution as provided in law.

`(7) The right to proceedings free from unreasonable delay.

`(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.

`(b) RIGHTS AFFORDED- In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). The reasons for any decision denying relief under this chapter shall be clearly stated on the record.

`(c) BEST EFFORTS TO ACCORD RIGHTS-

`(1) GOVERNMENT- Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).

`(2) CONFLICT- In the event of any material conflict of interest between the prosecutor and the crime victim, the prosecutor shall advise the crime victim of the conflict and take reasonable steps to direct the crime victim to the appropriate legal referral, legal assistance, or legal aid agency.

`(3) NOTICE- Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person.

`(d) ENFORCEMENT AND LIMITATIONS-

`(1) RIGHTS- The crime victim, the crime victim's lawful representative, and the attorney for the Government may assert the rights established in this chapter. A person accused of the crime may not obtain any form of relief under this chapter.

`(2) MULTIPLE CRIME VICTIMS- In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights contained in this chapter, the court shall fashion a procedure to give effect to this chapter.

`(3) WRIT OF MANDAMUS- If a Federal court denies any right of a crime victim under this chapter or under the Federal Rules of Criminal Procedure, the Government or the crime victim may apply for a writ of mandamus to the appropriate court of appeals. The court of appeals shall take up and decide such application forthwith and shall order such relief as may be necessary to protect the crime victim's ability to exercise the rights.

`(4) ERROR- In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates.

`(5) NEW TRIAL- In no case shall a failure to afford a right under this chapter provide grounds for a new trial.

`(6) NO CAUSE OF ACTION- Nothing in this chapter shall be construed to authorize a cause of action for damages.

`(e) DEFINITIONS- For the purposes of this chapter, the term `crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter, but in no event shall the defendant be named as such guardian or representative.

`(f) PROCEDURES TO PROMOTE COMPLIANCE-

`(1) REGULATIONS- Not later than 1 year after the date of enactment of this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims.

`(2) CONTENTS- The regulations promulgated under paragraph (1) shall--

`(A) establish an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim;

`(B) require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, and otherwise assist such employees and offices in responding more effectively to the needs of crime victims;

`(C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and

`(D) provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant.'.

(b) TABLE OF CHAPTERS- The table of chapters for part II of title 18, United States Code, is amended by inserting at the end the following:

3771'.

(c) REPEAL- Section 502 of the Victims' Rights and Restitution Act of 1990 (42 U.S.C. 10606) is repealed.

SEC. 3. INCREASED RESOURCES FOR ENFORCEMENT OF CRIME VICTIMS' RIGHTS.

(a) CRIME VICTIMS LEGAL ASSISTANCE GRANTS- The Victims of Crime Act of 1984 (42 U.S.C. 10601 et seq.) is amended by inserting after section 1404C the following:

`SEC. 1404D. CRIME VICTIMS LEGAL ASSISTANCE GRANTS.

`(a) IN GENERAL- The Director may make grants as provided in section 1404(c)(1)(A) to State, tribal, and local prosecutors' offices, law enforcement agencies, courts, jails, and correctional institutions, and to qualified public and private entities, to develop, establish, and maintain programs for the enforcement of crime victims' rights as provided in law.

`(b) FALSE CLAIMS ACT- Notwithstanding any other provision of law, amounts collected pursuant to sections 3729 through 3731 of title 31, United States Code (commonly known as the `False Claims Act'), may be used for grants under this section.'.

(b) AUTHORIZATION OF APPROPRIATIONS- In addition to funds made available under section 1402(d) of the Victims of Crime Act of 1984, there are authorized to be appropriated to carry out this Act--

(1) $2,000,000 for fiscal year 2005 and $5,000,000 for each of fiscal years 2006, 2007, 2008, and 2009 to United States Attorneys Offices for Victim/Witnesses Assistance Programs;

(2) $2,000,000 for fiscal year 2005 and $5,000,000 in each of the fiscal years 2006, 2007, 2008, and 2009, to the Office for Victims of Crime of the Department of Justice for enhancement of the Victim Notification System;

(3) $300,000 in fiscal year 2005 and $500,000 for each of the fiscal years 2006, 2007, 2008, and 2009, to the Office for Victims of Crime of the Department of Justice for staff to administer the appropriation for the support of the National Crime Victim Law Institute or other organizations as designated under paragraph (4);

(4) $7,000,000 for fiscal year 2005 and $11,000,000 for each of the fiscal years 2006, 2007, 2008, and 2009, to the Office for Victims of Crime of the Department of Justice, for the support of--

(A) the National Crime Victim Law Institute and the establishment and operation of the Institute's programs to provide counsel for victims in criminal cases for the enforcement of crime victims' rights in Federal jurisdictions, and in States and tribal governments that have laws substantially equivalent to the provisions of chapter 237 of title 18, United States Code; or

(B) other organizations substantially similar to that organization as determined by the Director of the Office for Victims of Crime.

(c) INCREASED RESOURCES TO DEVELOP STATE-OF-THE-ART SYSTEMS FOR NOTIFYING CRIME VICTIMS OF IMPORTANT DATES AND DEVELOPMENTS- The Victims of Crime Act of 1984 (42 U.S.C. 10601 et seq.) is amended by inserting after section 1404D the following:

`SEC. 1404E. CRIME VICTIMS NOTIFICATION GRANTS.

`(a) IN GENERAL- The Director may make grants as provided in section 1404(c)(1)(A) to State, tribal, and local prosecutors' offices, law enforcement agencies, courts, jails, and correctional institutions, and to qualified public or private entities, to develop and implement state-of-the-art systems for notifying victims of crime of important dates and developments relating to the criminal proceedings at issue in a timely and efficient manner, provided that the jurisdiction has laws substantially equivalent to the provisions of chapter 237 of title 18, United States Code.

`(b) INTEGRATION OF SYSTEMS- Systems developed and implemented under this section may be integrated with existing case management systems operated by the recipient of the grant.

`(c) AUTHORIZATION OF APPROPRIATIONS- In addition to funds made available under section 1402(d), there are authorized to be appropriated to carry out this section--

`(1) $5,000,000 for fiscal year 2005; and

`(2) $5,000,000 for each of the fiscal years 2006, 2007, 2008, and 2009.

`(d) FALSE CLAIMS ACT- Notwithstanding any other provision of law, amounts collected pursuant to sections 3729 through 3731 of title 31, United States Code (commonly known as the `False Claims Act'), may be used for grants under this section.'.

SEC. 4. REPORTS.

(a) ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS- Not later than 1 year after the date of enactment of this Act and annually thereafter, the Administrative Office of the United States Courts, for each Federal court, shall report to Congress the number of times that a right established in chapter 237 of title 18, United States Code, is asserted in a criminal case and the relief requested is denied and, with respect to each such denial, the reason for such denial, as well as the number of times a mandamus action is brought pursuant to chapter 237 of title 18, and the result reached.

(b) GENERAL ACCOUNTING OFFICE-

(1) STUDY- The Comptroller General shall conduct a study that evaluates the effect and efficacy of the implementation of the amendments made by this Act on the treatment of crime victims in the Federal system.

(2) REPORT- Not later than 3 years after the date of enactment of this Act, the Comptroller General shall prepare and submit to the appropriate committees a report containing the results of the study conducted under subsection (a).

END

 

 

 

March 21 ,2004

 

Nation's Top Prosecutors' and Police Organizations Support

Crime Victims' Rights Amendment

 

 

The National District Attorneys' Association (NDAA) and Fraternal Order of Police (FOB) have both formally endorsed U. S. Senate Joint Resolution 1,  (and its companion resolution in the U. S. House of Representatives, H. J. Res. 48) the Crime Victims' Rights proposed Amendment to the U. S. Constitution. 

Support by the leading National organizations, representing local prosecutors and the rank-and-file law enforcement officers, is a major step toward the enactment and recognition of the need for fundamental rights for crime victims in the U.S. Constitution. 

The NDAA represents approximately 30,000 prosecutors.  The Fraternal Order of Police is the world's largest organization of sworn law enforcement officers, with over 310,000 members in more than 2,100 lodges.

 

* * *

 

The NDAA resolution, was adopted overwhelmingly by a voice vote and states:

 

VICTIM RIGHTS AND FEDERAL CONSTITUTION AMENDMENT

 

    WHEREAS, the local prosecutors of America are responsible for the vast majority of criminal prosecutions in the United States; and

    WHEREAS, as prosecutors our fundamental role is to pursue justice and protect the public safety by holding criminal offenders accountable for their violations of the law; and

    WHEREAS, in carrying out these responsibilities, prosecutors represent both the interests of the public and the individual victims of criminal activity; and

    WHEREAS, now as in the past, prosecutors throughout America are in the forefront of initiatives to recognize, expand and protect the rights of victims of crime.

 

NOW, THEREFORE, BE IT RESOLVED, That the National District Attorneys Association (NDAA), representing America’s prosecutors, supports the adoption of S.J. Res. l (and its companion in the U. S. House of Representatives, H. J. Res. 48) the Crime Victims Rights Amendment to the United States Constitution and call upon the Congress to pass the amendment and the States to ratify it.

 

Adopted by the Board of Directors, March 20, 2004 (Ft. Lauderdale, FL)

 

 

 

  • San Juan Capistrano Becomes First City to Endorse VRA

    On January 6, 2004, the City Council of San Juan Capistrano, CA, formally stated its support for S.J. Res. 1 and H.J. Res. 48, both of which would amend the U.S. Constitution to provide fundamental rights for crime victims. At the urging of former mayor Colleen Campbell, San Juan Capistrano became the first city government to formally support the amendment.

    The City's resolution reads:

    Whereas, the rights of victims of violent crime are currently under represented in the United States Constitution; and,

    Whereas, a United States Constitutional Amendment has been proposed to protect the rights of violent crime victims; and,

    Whereas, the proposed Amendment has received bipartisan support of the 108th United States Congress; and,

    Whereas, the United States President George W. Bush announced his support for the proposed Constitutional Amendment; and,

    Whereas, the City Council of the City of San Juan Capistrano voted unanimously to endorse the Constitutional Amendment at their meeting of December 2, 2003, and is believed to be the first City in the United Statesto formally support the Amendment.

    NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby formally state its support for the 108th United States Congress, Joint Resolution 1, introduced by Senators Jon Kyl and Dianne Feinstein and Joint House of Representatives Joint Resolution 48, sponsored by Representative Steve Chabot...

     

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  •  U.S. Constitution Amendment Testimony, April 6, 2003

    Given before the United States Senate Judiciary, Washington, DC

                                                                             by Collene (Thompson) Campbell

     

    Our only son is dead because of a weak and a criminal forgiving justice system.

    We may be one of the hardest hit crime victim’s families in the Nation, but we are just one family out of hundreds of thousands.

    We continue to be deeply saddened by all four of the 9-11 terrorists attacks.  It is inconceivable to realize that every ten weeks there are as many people murdered right here in America as were killed in all four of the horrible attacks. 

    Our son, Scott, was strangled and thrown from an airplane by two repeat felony criminals and we never found his body. 

    My Brother, my only sibling, auto racing legend Mickey Thompson and his wife, Trudy, were shot to death as they were simply leaving their home on their way to work in the morning.  For any family to deal with murder, is near impossible.  However, to allow the American justice system to add additional pain is intolerable and shameful.

    My small family consists of proud Americans.  Since the American Revolution, our family has fought in every major war, for equality and the freedom for all Americans of this great Nation.  We have worked hard, contributed greatly and never asked for a hand out from anyone.  My family believed the U.S. Constitution was written to protect, balance and establish justice, yes, establish justice  … And, that is true, it does establish justice…unless, and until, you have the misfortune of becoming a victim of crime.

                Like so many others, there has been tremendous pain to our family, and coupled with that grief, is the fact, that the moment we became victims of crime, our rights are ignored in favor of a killer.  That means, a murderer or a rapist has rights not afforded to victims, all because we, the victim, are not mentioned in our U.S. Constitution.

                My husband and I were not permitted to be in the courtroom during three trials for the men who murdered our son.  We were forced to sit in the hall, like a dog with fleas.  Yet, the killers, along with all their family and supporters, were inside the courtroom portraying a family unit.

                We were not allowed to be heard, yet, the killer’s family was able to testify in front of the jury, proclaiming the goodness of the defendant and the evil of victims.

                We were not notified of a hearing before the District Court of Appeal.  Therefore, no one was there to represent our murdered son, however, in full force, forty members of the killer’s contingency, were present.  The murder case was then overturned.  There was to be another trial, the killer was released, without consideration for our safety, and we learned of all this through the media.  I called the Attorney General’s Prosecutor on our case and asked why she hadn’t bothered calling or notifying us regarding the appeal.  Her answer was demeaning, but typical, she said:  “We never notify the victims, they simply don’t understand”.  However, we knew the true reason, . . .. unlike the killer’s defense, she was not required to notify us, because we were only the Mom and Dad of the murdered victim…the next of kin!

    Our family would never ask for restitution, our son’s life does not have a dollar value.  However, among other significant costs, we had to cough up $2,000.00 to get his car out of storage, (after it had been impounded by the police for evidence).  The trials took eight years to complete, while our life was controlled by the defense.  There was no consideration for our devastated personal life, plans, family or finances.  But, I can guarantee you, we and thousands of other victims are the product of others before us doing nothing. Hopefully you are not willing to continue that pattern. 

    You rarely hear from people like us, because victims are too devastated to talk.   We have no financial help or attorneys representing us.  Unlike the defense attorney’s associations we are unable to contribute to legislators.  The victims are forced to fend for themselves.

    Senators, what we victims fail to understand, is how, in this great Nation, we have allowed the violent criminals, and their defense attorneys, to have more rights than the honest, law-abiding good American citizen, who through no fault of their own, has become a victim of violent crime.  I’m certain this is not what the Founders of this Great Nation and the authors of our Constitution intended and it needs to be corrected immediately.

    At a huge cost to taxpayers and to our life personally, our family has continually been in the court system for 21 straight years, and still have no right for a speedy trial. There is no end in sight.

    I’m uncertain how long our family can endure the inequities and injustice that prevails in our courts today.  We, the unfortunate victims, do not have an organization like the ACLU or funds supplied by defense attorneys.  We only have the honesty and integrity of good Americans asking for a balanced justice system.

                We ask you to move forward rapidly with the proposed Constitutional Amendment that will protect and give some of the same rights to crime victims, as those afforded to accused violent criminals.  The amendment we seek does not take away any rights from the criminal.

     It is appalling that a vicious murderer has more rights than law-abiding American citizens.  Unfortunately, the justice system has been altered, until it is now broken.

                On behalf of all crime victims, thank you for allowing me to be heard.

    A special thanks to my own California Senator, Dianne Feinstein and to Arizona Senator Jon Kyl, for having the insight, courage and integrity to carry this amendment.

      

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  • Following is the May 2, 2000 statement by Senator Dianne Feinstein on victim participation in criminal cases in the 18th and 19th century (p. S3249 of the Congressional Record). 

 

Mrs. FEINSTEIN. Mr. President, last week, during the debate on a proposed constitutional amendment to protect the rights of crime victims, Senator LEAHY made several lengthy statements challenging some of the facts set forth by supporters of the amendment, including myself. We responded to many of those arguments at the time--and, I believe, refuted them. I do want not burden the record now by repeating all our contentions or making new ones.

   However, there is one argument that the Senator from Vermont made during the waning hours of debate on the amendment that I find particularly troubling. It involves the role of victims in criminal proceedings at the time our Constitution was written. Because I believe the Senator's comments contradict the clear weight of American history, I feel compelled to respond.

   Here is the argument Senator LEAHY disputes: At the time the Constitution was written, the bulk of prosecutions were by private individuals. Typically, a crime was committed and then the victim initiated and then pursued that criminal case. Because victims were parties to most criminal cases, they enjoyed the basic rights to notice, to be present, and to be heard under regular court rules. Given the fact that victims already had basic rights in criminal proceedings, it is perhaps understandable that the Framers of our Constitution did not think to provide victims with protection in our national charter.

   The Senator from Vermont tried to rebut this argument. Citing an encyclopedia article and a couple of law review articles, he claimed that, by the time of the Constitutional Convention, public prosecution was ``standard'' and private prosecution had largely disappeared.

   Because Senator LEAHY's comments suggest that some confusion about this issue lingers among my colleagues, I would now like to provide some additional evidence demonstrating that private prosecutions had not only not largely disappeared in the late 18th century but in fact were the norm.

   First, it is important to concede one point: some public prosecutors did exist at the time of the framing of the Constitution. Certainly, by then, the office of public prosecutor had been established in some of the colonies--such as Connecticut, Vermont, and Virginia. But just because some public prosecutors existed in the late 18th century does not mean that they played a major role or that public prosecution had supplanted private prosecution. In fact, criminal prosecution in 18th century English and colonial courts consisted primarily of private suits by victims. Such prosecutions continued in many States throughout much of the 19th century.

   Thus, contrary to Senator LEAHY's suggestion that a ``system of public prosecutions'' was ``standard'' at the time of the framing of the Constitution, the evidence is clear that private individuals--victims--initiated and pursued the bulk of prosecutions before, during, and for some time after the Constitution Convention.

   Let's look, for example, at the research of one scholar, Professor Allen Steinberg, who spent a decade sifting through dusty criminal court records in Philadelphia and wrote a book about his findings. Based on a detailed review of court docket books and other evidence, Professor Steinberg determined that private prosecutions continued in that city through most of the 19th century.

   In Professor Steinberg's words, by the mid-19th Century, ``private prosecution had become central to the city's system of criminal law enforcement, so entrenched that it would prove difficult to dislodge. .....''

   Of course, Philadelphia was the city where the Constitution was debated, drafted, and adopted. And for decades it was our new nation's most populous city--and its cultural and legal capital as well.

   It is difficult to reconcile the assertion that a ``system of public prosecutions'' was ``standard'' at the time of the Constitution Convention with historical research showing that, in the same city where the Convention was held, private prosecutions--inherited from English common law--continued to be ``standard'' through the mid-19th century.

   It is not surprising that the Senator from Vermont would conclude that public prosecution had replaced private prosecution by the late 18th century. A cursory exam of historical documents might lead to such a conclusion, for the simple reason that documents regarding public prosecutors and public prosecutions (what few there were) are easier to find than documents regarding private prosecutions. As Stephanie Dangel has explained in the Yale Law Journal:

   [e]arly studies concentrating on legislation naturally over-emphasized the importance of the public prosecutor, since a private prosecution system inherited from the common law would not appear in legislation. Examinations of prosecutorial practice were cursory and thus skewed. The most readily accessible information relating to criminal prosecutions predictably concerned the exceptional, well publicized cases involving public prosecutors, not the vast majority of mundane cases, involving scant paperwork and handled through the simple procedures of private prosecution .....

   Dangel has summed up recent historical research into the nature of prosecution in the decades leading up to the framing of the Constitution as follows:

   First, private individuals, not government officials, conducted the bulk of prosecution. Second, the primary work of attorneys general and district attorneys consisted on non-prosecutorial duties, with their prosecutorial discretion limited to ending, rather than initiating or conducting, prosecutions.

   Regarding the prevalence of private prosecution in the colonies, Dangel noted:

   Seventeenth and eighteenth century English common law viewed a crime as a wrong inflicted upon the victims not as an act against the state. An aggrieved victim, or interested party, would initiate prosecution. After investigation and approval by a justice of the peace and grand jury, a private individual would conduct the prosecution, sometimes with the assistance of counsel....... Private parties retained ultimate control, often settling even after grand juries returned indictments. Contemporaneous sources confirm the relative insignificance of public prosecutions in the colonial criminal system. Only five of the first thirteen constitutions mention a state attorney general, and only Connecticut mentions the local prosecutor. Secondary references are similarly rare. Finally, the earliest judicial decision voicing disapproval of private prosecution did not appear until 1849. No decision affirming public prosecutors' virtually unreviewable discretion appeared before 1883.

   The historical evidence is clear: Because victims were parties to most criminal prosecutions in the late 18th century, they had basic rights to notice, to be present, and to participate in the proceedings under regular court rules. Today, victims are not parties to criminal prosecutions, and they are often denied these basic rights. Thus, a constitutional victims' rights amendment would restore some of the rights that victims enjoyed at the time the Framers drafted the Constitution and Bill of Rights.

   If this historical evidence about prosecutions in the colonies is not enough, I would repeat a point Senator LEAHY [Page: S3250] made himself last week: that in England, any crime victim had the right to initiate and conduct criminal proceedings all the way up to the middle of the 19th century. As we know from Senator BYRD's enlightening remarks last week, many of the rights and liberties of our Constitution--such as those for criminal defendants--have their roots in English history and the English constitution.

   Given the fact, then, that virtually all the protections for criminal defendants in the Bill of Rights have English antecedents--including habeas corpus, trial by jury, due process, prohibition against excessive fines, and so on--it is hardly a stretch to think that the lack of rights for crime victims in the Bill of Rights would reflect an English antecedent as well: the long-established right of victims to prosecute crimes themselves.

   Let me be clear: I do not support a return to the old system of private prosecution. My only point is that we can cogently explain why the Framers did not include a single word on behalf of crime victims in the Constitution. And, given the relatively recent development in the United States of a system of 100% public prosecution, we can offer strong reasons to restore basic rights for victims in our criminal justice system.

   Just so there is no more confusion on this point, let us return to Professor Allen Steinberg, a legal historian who researched and wrote a 326-page book on prosecutions in 19th century Philadelphia--the most in-depth study of private prosecution in the United States.

   Did Professor Steinberg find that public prosecution was ``standard'' in Philadelphia even decades after the Constitution and Bill of Rights were adopted, as Senator LEAHY suggests? No. In fact, he found that victims directly prosecuted crimes in Philadelphia until at least 1875.

   The fact that Professor Steinberg's research is on Philadelphia is undeniably important. Not only did the Framers live in Philadelphia while debating and drafting the Constitution, but many had resided there earlier as well.

   For example, James Madison--sometimes called the Father of our Constitution--was not only a delegate at the Philadelphia Convention, he served in the Continental Congress in Philadelphia from March 1780 through December 1783. I have little doubt that Madison knew that the bulk of criminal prosecutions in Philadelphia consisted of private prosecutions. Here is what Professor Steinberg writes about private prosecutions in Philadelphia:

   [T]he criminal law did have a central place in the everyday social life of mid-nineteenth-century Philadelphia. Private prosecution--one citizen taking another to court without the intervention of the police--was the basis of law enforcement in Philadelphia and an anchor of its legal culture, and this had been so since colonial times ..... Well past mid-century, private prosecution remained popular among a broad spectrum of ordinary Philadelphians. Familiar and frequent, it was rooted in a complex political and legal structure that linked political parties, courthouses, saloons and other centers of popular culture, real crime and dangerous disorder, and ordinary disputes and transgressions of everyday life ..... Through the process of private prosecution, the criminal courts of Philadelphia developed a distinctive set of practices and a culture that was remarkably resilient in the face of constant official hostility and massive social change.......

   He continues:

   Private prosecution refers to the system by which private citizens brought criminal cases to the attention of court officials, initiated the process of prosecution, and retained considerable control over the ultimate disposition of cases--especially when compared with the two main executive authorities of criminal justice, the police and the public prosecutor ..... Private prosecution ..... [was] firmly rooted in Philadelphia's colonial past. [It was an] example[] of the creative American adaptation of the English common law. By the seventeenth century, private prosecution was a fundamental part of English common law. Most criminal cases in England proceeded under the control of a private prosecutor, usually a relatively elite person, and often through a private society established for that purpose.

   Professor Steinberg concludes that before the second half of the 19th Century, private prosecutions were the ``dominant'' mode of criminal justice in Philadelphia. He explains how this system worked:

   When a person wanted to initiate a criminal prosecution, he or she went off to the nearest alderman's office, complained, and usually secured a warrant for the arrest of the accused. After the alderman's constable escorted the defendant to the office, the alderman conducted a formal hearing, and the process was underway. Most often, private prosecutors charged their adversaries with assault and battery, larceny, or some form of disorderly conduct. Well before 1850, aldermen and litigants established patterns of case disposition that would last through most of the century. Most criminal cases were fully disposed of by the alderman .....

   Professor Steinberg also notes that:

   [m]uch of the time, people used the criminal law in their private affairs in order to combat a perceived injustice or to assert basic rights they felt were violated. There was no better example of this than battered wives. Women regularly brought charges against men for assault ...... Most often, ..... the batterer was punished in some manner .......

   And what of the public prosecutor? Contrary to Senator LEAHY's suggestion that public prosecutors had consolidated control over prosecutions by the late 18th century, Professor Steinberg found that--even by the mid-19th Century--the Philadelphia public prosecutor did little more than act as a clerk to victims who were pursuing private prosecutions. Here is what Professor Steinberg found:

   One of the major reasons for the weakness of the court officials was the limited power of the public prosecutor. Most discretion was exercised by the magistrates and private parties, some by the grand and petit juries, and little by anyone else. As late as the mid-1860s, for example, jurists agreed that, despite their importance on the streets, the police had no role in ordinary criminal procedure. More importantly, the same was basically true for the district attorney. In an 1863 outline of criminal procedure, Judge Joseph Allison did not mention the police and gave no discretionary role to the district attorney in the ``usual and ordinary mode of procedure.'' ....... The discretion of the private parties in criminal cases was not checked by the public prosecutor. Instead, the public prosecutor in most cases adopted a stance of passive neutrality. He was essentially a clerk, organizing the court calendar and presenting cases to grand and petit juries. Most of the time, he was either superseded by a private attorney or simply let the private prosecutor and his witnesses take the stand and state their case.

   And the dominance of private prosecutions was certainly not unique to Philadelphia. Other legal historians who have sifted through court records have reached similar conclusions to Professor Steinberg.

   In a 1995 article in the American Journal of Legal History, for example, Robert Ireland concluded that ``By 1820 most states had established local public prosecutors....... Yet, because of deficiencies in the office of public prosecutor, privately funded prosecutors constituted a significant element of the state criminal justice system throughout the nineteenth century.''

   In a 1967 article in the New York University Law Review, William E. Nelson found that private prosecution was commonplace in a typical Massachusetts county between 1760 and 1810. Criminal trials, he writes, were ``in reality contests between subjects rather than contests between government and subject.''

   And the list goes on: other scholars who have acknowledged the prevalence of private prosecution in the American colonies and fledgling United States include Richard Gasjins (Connecticut), Michael S. Hindus (Massachusetts and South Carolina), William M. Lloyd, Jr. (Pennsylvania), and Edwin Surrency (Philadelphia). Indeed, William F. McDonald notes in the American Criminal Law Review that a system of private prosecution was preferred by many around the time of the American Revolution because of a fear of tyranny associated with government prosecutors and because it was less expensive.

   In the face of this overwhelming historical evidence that the bulk of prosecutions at the time of the Constitutional Convention were private, the Senator from Vermont suggested instead that public prosecutions were ``standard.'' He relied on several sources for that conclusion: a four-page article in a legal encyclopedia and a few law review article quotes, one lacking citation and the rest citing the same four-page encyclopedia article.

   Of particular importance seems to be a quotation from an article in the Rutgers Law Review that asserted that ``[b]y the time of the Revolution, public prosecution in America was standard, and private prosecution, in effect, was gone.'' But reading closer, one finds that the support for this statement was none other than a statement in the oft-cited four-page encyclopedia [Page: S3251] article that ``by the time of the American Revolution, each colony had established some form of public prosecution.......''

   Again, however, we have seen that the mere existence of ``some form of public prosecution'' at the time of the American Revolution does not mean that public prosecution was ``standard.'' And it certainly does not mean that public prosecutors handled the bulk of prosecutions or had much a prosecutorial role. They did not. Rather, the weight of historical evidence on this subject--a subject which has been extensively researched and reviewed by some of our country's most distinguished legal historians and other scholars--suggests that private prosecutions were dominant.

   Mr. President, I am glad to have the chance to correct the historical record on this point. I have the utmost respect for my distinguished colleague from Vermont and I thank him for his thoughtful remarks on the history of prosecution in this country. However, I believe that my main point stands: we need to restore rights that crime victims enjoyed at the time the Framers drafted the Constitution and Bill of Rights.

 

  •   Why The Rights Can Only Be Secured In The United States Constitution

Even the Amendment's most ardent critics usually say they support most of the rights in principle. If there is one thing certain in the victims' rights debate, it is that these words, "I'm all for victims' rights but . . .," are heard repeatedly. But while supporting the rights "in principle," opponents in practice end up supporting, if anything, mere statutory fixes that have proven inadequate to the task of vindicating the interests of victims. As Attorney General Reno testified before the House Committee on the Judiciary, ". . . efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate." The best federal statutes have proven inadequate to the needs of even highly publicized victim injustices, as Professor Cassell's writing about the plight of the Oklahoma City bombing victims has ably demonstrated.

In my state, statutes were inadequate to change the justice system. And now, despite its successes, we realize that our state constitutional amendment will also prove inadequate to fully implement victims' rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that is needed to completely change old ways. In our state, as in others, the existing rights too often "fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused's rights -- even when those rights are not genuinely threatened." The experience in my state is, sadly, hardly unique. A recent study by the National Institute of Justice found that "even in States where victims' rights were protected strongly by law, many victims were not notified about key hearings and proceedings, many were not given the opportunity to be heard, and few received restitution." The victims most likely to be affected by the current haphazard implementation are, perhaps not surprisingly, racial minorities.

A group calling itself "Citizens for the Constitution"[hereinafter "Citizens"] has organized under the auspices of The Century Foundation's Constitution Project. Their purpose is to call for restraint in the consideration of Amendments to the U. S. Constitution. In their recent pamphlet, "Great and Extraordinary Occasions": Developing Guidelines for Constitutional Change, the group propounds eight guidelines which, they argue, should be satisfied before any constitutional amendment would be justified. The "Citizens" raise some questions, in the commentary following their guidelines, about the Crime Victims' Rights Amendment. Applying these rigorous Guidelines, however, despite the reservations of the "Citizens" themselves, demonstrates unequivocal support for the case for the Amendment. I would like to direct the Subcommittee's attention to these eight guidelines, which the "citizens" offer in the form of eight questions.

1. Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?

Yes.
Even as the Constitutional rights of persons accused or convicted of crimes address issues of "abiding importance," so to do the proposed rights of crime victims. The legitimate rights of the accused to notice, to the right to be present and the right to be heard or remain silent, the right to a speedy and public trial, or any of the other rights are surely no more enduring than the legitimate interests of the victim to notice, presence, or the right to be heard, or any of the other rights proposed by the amendment. Surely no one could persuasively argue that the rights of the innocent victim were less important or enduring.

Indeed, it is precisely because these values for victims are of enduring, or "abiding" importance that they must be protected against erosion by any branch or majoritarian will. That they do not exist today broadly across the country is evidence that they are not adequately protected despite general acceptance of their merit.

2. Does the proposed amendment make our system more politically responsive or protect individual rights?
Yes.
Clearly the proposed amendment is offered to "protect individual rights." That is its sole purpose.
The "Citizens" however, suggest that Congress should ask "whether crime victims are a 'discreet and insular minority' requiring constitutional protection against overreaching majorities or whether they can be protected through ordinary political means. Congress should also ask whether it is appropriate to create rights for them that are virtually immune from future revision. Let's review these two questions.

"[O]rdinary political means" have proven wholly inadequate to establish and protect the rights reviewed above. If this were not so they would exist and be respected in every state and throughout the federal government. The evidence that they are not is as compelling as it is overwhelming. Why is this so? Are crime victims unpopular? No, but as a class they are ignored; their interests subordinated to the interests of the defendant and the professionals in the system. And those interests are entrenched as deeply as any in this society. Crime victims become "discreet and insular" by virtue of their transparency. If this were not so we would not be here for our rights would be secure.

3. Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?

Yes.
The "Citizens" write, 'The proposed victims' rights amendment raises troubling questions under this Guideline. Witnesses testifying in Congress on behalf of the amendment point to the success of state amendments as reason to enact a federal counterpart. But the passage of the state amendments arguably cuts just the other way; for the most part, states are capable of changing their own law of criminal procedure in order to accommodate crime victims, without the necessity of federal constitutional intervention. While state amendments cannot affect victims' rights in federal courts, Congress has considerable power to furnish such protections through ordinary legislation. Indeed, it did so in March 1997 with Public Law 105-6 . . . which allowed the victims of the Oklahoma City bombing to attend trial proceedings."

I was one of those witnesses the "Citizens" referred to. They should have read all my testimony. Let me repeat again one of my statements, "In my state, the statutes were inadequate to change the justice system. And now, despite its successes, we realize that our state constitutional amendment will also prove inadequate to fully implement victims' rights. While the amendment has improved the treatment of victims, it does not provide the unequivocal command that is needed to completely change old ways. In our state, as in others, the existing rights too often "fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused's rights -- even when those rights are not genuinely threatened." (Quoting Prof. Lawrence Tribe on the proposed amendment).

Moreover our courts have now made explicit in a series of cases (cited in Hearing Report on S. J. Res. 6, April 16, 1997, Senate Judiciary Committee) what was always understood: namely that the U. S. Constitutional rights of the defendant will always trump any right of the victim without any fair attempt to balance the rights of both.

On the Oklahoma City bombing point that the "Citizens" make they should have read the whole testimony of Prof. Paul Cassell who convincingly demonstrates how the statute cited by the citizens was inadequate to the task of fully protecting even these high profile and compelling victims. The law didn't work for them. How much less must it work for victims who don't have the clout to get an act of Congress passed? That "other means," to use the "Citizens" phrase, have simply proven inadequate is concurred in by a broad consensus that includes the Justice Department, constitutional scholars of the highest regard from both ends of the political spectrum, the President, the Vice President, the platforms of both major political parties, and bi-partisan coalition of Members and Senators, and crime victim advocates throughout our country.

4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves in tact?
Yes.
The proposed rights are perfectly consistent with the constitutional doctrine that fundamental rights for citizens in our justice system need the protection of our fundamental law.

5. Does the proposed amendment embody enforceable, and not purely aspirational, standards?
Yes.
The text of the proposed amendment grants to crime victims constitutional standing to stand before any judge in the country and seek orders protected the established rights. This is the essence of enforceability.

6. Have the proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?

Yes.
More than simply "think through" the proposal, proponents of the CVRA have taken roughly two decades of experience with state statutes and constitutional provisions to develop a very refined understanding of the limits of state and federal law, the need for a federal amendment, and how that amendment would work in actual practice and be interpreted. No other constitutional amendment has had this degree of vetting.

7. Has there been full and fair debate on the merits of the proposed amendment?
Yes.
The Congress has had the amendment under consideration since 1996. There have been major hearings in both bodies on multiple occasions. The record of debate and discussion throughout the country is extensive.

8. Has congress provided for a non-extendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?

Yes.
The proposal establishes a seven-year deadline for State ratification.
Conclusion
The proposed amendment passes the test of the "Citizens" Guidelines. More importantly, it is fully faithful to the spirit and design of James Madison.

The "Citizens'" pamphlet, Great and Extraordinary Occasions, takes its name from a line in The Federalist No. 49, authored by James Madison. There Madison rightly argued for restraint in the use of the amendment process. But of course he rose above rightful restraint to propose the first twelve amendments.

When James Madison took to the floor and proposed the Bill of Rights during the first session of the First Congress, on June 8, 1789, "his primary objective was to keep the Constitution intact, to save it from the radical amendments others had proposed . . . ." In doing so he acknowledged that many Americans did not yet support the Constitution.

"Prudence dictates that advocates of the Constitution take steps now to make it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them."

The fact is, Madison said, there is still "a great number" of the American people who are dissatisfied and insecure under the new Constitution. So, "if there are amendments desired of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens," why not, in the spirit of "deference and concession," adopt such amendments?

Madison adopted this tone of "deference and concession" because he realized that the Constitution must be the "will of all of us, not just a majority of us." By adopting a bill of rights, Madison thought, the Constitution would live up to this purpose. He also recognized how the Constitution was the only document which could likely command this kind of influence over the culture of the country.

Our goals are perfectly consistent with the goals that animated James Madison. There is substantial evidence in the land that the Constitution today does not serve the interests of the "whole people" in matters relating to criminal justice. And the way to restore balance to the system, in ways that become part of our culture, is to amend our fundamental law.

"[The Bill of Rights will] have a tendency to impress some degree of respect for [the rights], to establish the public opinion in their favor, and rouse the attention of the whole community . . . [they] acquire, by degrees, the character of fundamental maxims. . . as they become incorporated with the national sentiment . . . ."

Critics of Madison's proposed amendments claimed they were unnecessary, especially so in the United States, because states had bills of rights. Madison responded with the observation that "not all states have bills of rights, and some of those that do have inadequate and even 'absolutely improper' ones." Our experience in the victims' rights movement is no different. Not all states have constitutional rights, nor even adequate statutory rights. There are 33 state constitutional amendments and they are of varying degrees of value.

Harvard Professor Lawrence Tribe has observed this failure : " . . . there appears to be a considerable body of evidence showing that, even where statutory or regulatory or judge-made rules exist to protect the participatory rights of victims, such rights often tend to be honored in the breach . . . ." As a consequence he has concluded that crime victims' rights "are the very kinds of rights with which our Constitution is typically concerned."

After years of struggle, we now know that the only way to make respect for the rights of crime victims "incorporated with the national sentiment," is to make them a part of "the sovereign instrument of the whole people," the Constitution. Just as James Madison would have done it.

 


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