Response to Minority Views of
Senators Leahy, Kennedy, Kohl, Feingold, Schumer, and Durbin
by
Steve Twist
General Counsel
National Victims Constitutional Amendment Project
A. Introduction
On November 7, 2003, Senators Leahy, Kennedy, Kohl, Feingold,
Schumer, and Durbin presented their “Minority Views” to Senate Report
108-191, the Judiciary Committee’s Report accompanying S. J. Res. 1, the
Crime Victims Rights Amendment (hereinafter “Minority Senators”). The Minority Senators
set forth their reasons for opposing S. J. Res. 1. This is a response to
their arguments.
At the outset it should be noted that the Minority Senators
concede, “The treatment of crime victims certainly is of central
importance to a civilized society.” Surely something of “central importance
to a civilized society” is important enough to warrant protection in our
fundamental charter. Surely things of such “central importance” should not be
subject to the shifting influences of legislative majorities. Surely things of “central importance” to our
civilization should not be subject to judicial activism, without grounding in
the Constitution. Let us agree that while the treatment of victims is of
“central importance,” so is the treatment of defendants. The centrality of both
defendants and victims rights should be protected against government usurpation.
Perhaps the minority view is grounded in the belief that
victims are less “central” to our civilized society than defendants. Or perhaps
use of the word “treatment” implies that victims are to be simply the objects
of a beneficent government’s largesse, and if so all will be well. Yet crime
victims, along with defendants, simply seek what the minority view asserts to
be of central importance to our society. Victims do not seek to be objects of
the government’s largesse; rather, they
seek as free citizens to be empowered with rights and standing that no judicial
or legislative majority can ignore or take away.
The minority view questions the “emotional engine
feeding this amendment.” Surely those of that view would concede that similar
engines fed the movements for the civil rights amendments, women’s suffrage,
the 18-year-old voting age requirement, and indeed similar engines fed the
campaign for the Bill of Rights itself. The emotion of the parents of a
murdered child forced to sit outside the courtroom during trial, the emotion of
a battered woman who cannot address the court before her abuser is released -- these
and other emotions are not illegitimate. Injustice creates emotion in the heart
of every American, and that emotion feeds reform movements. In our history
those movements have often led to constitutional amendments. We are a
better country for it. Surely something of central
importance to our civilized society ranks with the best of these movements.
If crime victims, as a class, were as “politically
popular” as the minority view suggests, they would not be forced to endure the
sustained injustice that is their unquestioned lot. Even the Minority Senators
do not question the multiple, repeated cases of injustice presented to the
Committee. They acknowledge the injustice, but simply propose to address it
through statutory reform. Yet the history of our country confirms that great
injustice can only be ended through the reform of our basic charter.
James Madison, the Minority Senators note, cautioned that
amendments be reserved for “certain great and extraordinary occasions.” What
the minority view does not mention is that Madison wrote those words in
Federalist No. 49, published on February 2, 1788. Fifteen months later, on June
8, 1789, Madison proposed the Bill of Rights, saying in his speech to Congress,
“… if we can make the constitution better in the opinion of those who are
opposed to it, without weakening its frame, or abridging its usefulness, in the
judgment of those who are attached to it, we act the part of wise and liberal
men to make such alterations as shall produce the effect.”
B. It Is Necessary To Amend the
Constitution to
Protect Victims’
Rights
The minority view disputes the “need” to amend the
Constitution “to protect the rights of crime victims.” Despite the best efforts
of the States and the Federal Government, twenty years of experience with
lesser laws than the U. S. Constitution has confirmed that they are inadequate.
Only the Constitution of the United States, the “will of all of us,” as Madison
scholar Robert Goldwin described it, has the power to change the culture of our
country’s criminal justice systems. The best intended and drafted Federal
statutes can only address the problems of victims of Federal crimes; they
cannot address the vast majority of crime victims in the nation. Each State can
only reform its own system, and then only in the shadow of the Constitution
which has no rights for victims. Only the Constitution has the power to become “the
supreme Law of the Land,” and as such, only the Constitution can give every
American what should be a birthright to fair treatment.
The standard of article V of
the Constitution, that an amendment be “necessary,” is, of course, met whenever
the Congress and the States so decide. It may not seem “necessary” to the minority
view that the parents of a murdered child be allowed to remain in the courtroom
throughout the trial, or that the voice of a battered woman be heard on the
matter of the release or plea bargain for her batterer, but in a decent and
free society, these citizens should be able to make that choice for themselves.
1. Congress and the States Have Inadequate Power to Protect Victims’ Rights
Without a Federal Constitutional Amendment
If the “power” of statutes and State constitutional
amendments had been “adequate,” as the Minority Senators suggest, the
“emotional engine feeding this amendment” which the minority view somewhat
derisively compares with temperance movement, surely would have dissipated long
ago.
The Minority Senators write, “No
Victims' Rights Amendment was necessary, for example, to secure a role for
victims at pretrial detention and capital sentencing hearings.” What the minority
view claims to know is, as stated, sadly just not so. Salerno, cited by
the Minority Senators for the first proposition, did not secure for victims a
right to be present and heard at pre‑trial detention proceedings, and
still today despite our best efforts in the States, victims are still not
afforded this basic right. Victim allocution at capital sentencing hangs by a
mere thread at the Supreme Court and, in most places in the country, contrary to
the rights of the defendant’s family, victims are not allowed to offer a
recommendation as to the sentence. See,
Lynn v. Reinstein, 68
P.3d 412 (Ariz. 2003), cert denied,
2004 WL 47465 (U.S.Ariz.). This is because neither the
Congress nor the States may pass statutes that address criminal procedure
without opening the door to claims by defendants, however unfounded, that their
“rights are being violated.” No constitutional right of a defendant is
infringed by the victims’ rights that are being proposed. However, that does
not stop a defendant from raising the claim, or trial courts from taking the
path of least resistance to uphold the claim and protect their record, as
little or no opportunity exists for victims to challenge adverse rulings.
The law professors cited by the Minority Senators have
not offered any evidence to support their conclusion that Federal or State laws
work, nor can they. The unreported decision of the Maryland Court of Special
Appeals in Rippeon and Dobbin v. State of Maryland, No. 2554
(July 9, 2002) should prove the point conclusively. There, despite a
constitutional right to be present at trial and to be heard at sentencing, the
parents of a murdered child were excluded from the courtroom during the trial
and the mother was silenced at the sentencing. Moreover, the court concluded
the parents had no remedy because when they sought appellate review the court
found the matter was moot.
The fact that there is not as large “an objectionable
body of law” as the minority view would like is actually evidence of the
failure of victims’ rights laws to date. They are too often ignored and their
denial is rarely subject to appellate review because of standing and mootness.
The Minority Senators support “training and education” as
a substitute for fundamental rights. Presumably they would not recommend the
same remedy for the protection of defendants’ rights
2. Statutes Are Not Preferable To Amending
the Federal Constitution
No civil libertarian would propose that defendants’
rights be protected only by statute and that they need not be protected by the
constitution. Yet victims’ rights are relegated to this second-class status.
Why are the participatory rights of victims deemed less worthy? The view
that only defendants are an “insular minority” needing constitutional
protection is inaccurate. If crime victims were so popular a political force as
some would suggest, why are they regularly on the outside of the system looking
in? Why are their claims for just treatment so often ignored? Statutes have
proven to be unenforceable appeasements and nothing more. While it is true that
statutes can be more easily amended and are hence more “flexible” it is
precisely for this reason that they are not adequate to secure fundamental
rights.
The Minority Senators cite opposition from certain
groups, while failing to recognize the vast majority of mainstream victims’
rights and law enforcement groups supporting S. J. Res. 1. Attached as Appendix
A is a response to the opposition from several of the groups cited by the
Minority Senators.
3. An Extensive Framework of Victims’ Rights Has Proven Inadequate
The litany of laws identified by the Minority Senators
proves the point made here. Together they have proven wholly inadequate to
change the fundamental disrespect for victims, who remain outside the doors of
the courts looking in. Together these laws have not given victims the rights to
notice, presence, and allocution that everyone, even the Minority Senators,
thinks they deserve.
The Minority Senators assert, “An extensive
framework of victims’ rights has already been created through federal and State
legislation and amendments to State constitutions.” This same argument was
offered in 1789 by those opposed to the Bill of Rights. 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 "some states have no bills of rights, there are others provided
with very defective ones, and there are others whose bills of rights are not
only defective, but absolutely improper."
James Madison, Speech to the Congress, June 8, 1789. Our experience in the
victims' rights movement is no different. Not all states have constitutional
rights, nor even adequate statutory rights.
Madison went on to say to his critics, “If they [the
rights] are incorporated into the constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those
rights; they will be an impenetrable bulwark against every assumption of power
in the legislative or executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the constitution by the
declaration of rights.” Now, as when Madison spoke these words, only the U.S.
Constitution can establish “an impenetrable bulwark” for rights which the
Minority Senators concede are “of central importance to a civilized society.”
The Minority Senators cite a 15 year old study from the
American Bar Association which concluded that criminal justice professionals
were “almost universally satisfied” with victims rights laws. The fact the 15
years ago a group of criminal justice professionals were “almost universally
satisfied” with victims rights law should not surprise anyone; it surely does
not surprise crime victims. That the Minority Senators would find it reason to
oppose victims’ rights is regrettable, if not surprising.
Today, 42 State Attorneys General, the IACP, the California District Attorneys Association,
many other major law enforcement organizations, and the mainstream victims
movement disagree and have called for passage of the Crime Victims Rights
Amendment. Even if the statement remained true, it makes the case for the
amendment. The people, whose rights are being denied, the victims of crime, are
clearly not “satisfied” with the injustice that confronts them daily. Perhaps
the Vera Institute is correct that local criminal justice officials “are making
a serious effort to implement the state [victims’ rights] statutes.” But
“serious effort[s]” are not working, as the many cases of injustice attest. And
“serious effort[s]” would not be accepted by the Minority Senators as a
substitute for constitutional rights for defendants. They should not be
accepted for victims.
The Minority Senators assert that amending the
constitution should not be the “first option.” How can they recite a litany of
(failed) statues and, for the last three Congresses, listen to the voices of
those who have tried other options for
more than two decades and still characterize S. J. Res. 1 as a “first
option?”
4. Victims’
Rights Need To Be “Restored”
The minority view has its history
wrong when it minimizes the role of private prosecutions at the time of the
Founding. The clearest analysis on this point has been offered in Senator
Feinstein’s May 2, 2000 statement 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 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 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.
5. The Bill of Rights Is Not Undermined By Enacting Constitutional Rights
For Crime Victims
The Minority Senators claim that they support victims’
rights in statutes. Presumably they mean nothing more nor less than the
codification of the very rights they here argue would be so harmful to the
Republic. The contradiction is remarkable.
The Minority Senators assert that the paramount purpose
of a criminal trial is ... “not to make victims whole.” Of course, the
amendment does not purport to “make victims whole.” But neither should it be
the outcome of the justice system to make victims worse and yet sadly, in case after case, as the Congress has seen,
it does just that. The criminal trial surely can remain a public prosecution,
and its primary purpose surely can be to determine the guilt or innocence of
the accused, without denying to victims the rights to notice, attendance, and
allocution at a few critical stages.
When proponents of
the amendment refer to “balance” in the justice system, they simply mean what
the Minority Senators asserted at the outset: because of the “central[ity]” of
victims rights to the core values of our “civilized society,” balance and
fairness require that victims’ rights be in the same fundamental law as the
defendants.
Moreover, nothing in the proposal threatens the office of
the public prosecutor; were it otherwise a substantial majority of state
Attorneys General would not have supported the amendment, nor the
California District Attorneys Association, nor the many other
prosecutors around the country.
6. There Is A Need For A National Standard Of Victims Rights
The Minority Senators assert that “every State already
protects the rights of crime victims, ….” The nation, as seen by the minority view,
is far different from the one actually inhabited by victims of crime, whose
“rights” continually are disregarded. Once again the argument of the minority view
folds in on itself. The minority view first asserts that victims’ rights need
to be established, just not in the constitution; then it asserts victims’
rights are now already protected “in every State.” The speed and agility with
which these two arguments are interchanged by the minority view is quite
remarkable.
The Minority Senators quote five law professors who
acknowledge “where fundamental human rights are in imminent jeopardy, the
Constitution might need to be amended to provide a national standard.” It could
not have been better said. Perhaps the five law professors, and the Minority
Senators, believe that it is more “fundamental” for criminal defendants to have
due process rights (all added by amendments to the constitution) than for crime
victims to have them, but the principled basis for such a conclusion is, at
best, seen through a glass darkly. For the parents of a murdered child who are
excluded from the courtroom of their child’s murderer and for a battered woman
who is silenced at the release hearing for her abuser, the rights look pretty
fundamental. The five law professors and the Minority Senators think the
extension of participatory rights to criminal defendants was necessary for us
to be “a strong and decent nation,” but that extending the very same kinds of
rights to crime victims is unnecessary. This unequal, double-standard of
justice remains unexplained.
In fact, there is a need for a uniform national standard
that sets a floor of victims’ rights for the very same reasons that there is a
national standard for the rights of defendants. The rights proposed in S. J.
Res. 1 should be the birthright of every American, indeed, every crime victim
in our country, wherever the crime occurs.
7. A
Constitutional Amendment Would Mean Victims in Every State Would Have Standing to
Enforce Their Rights
The Minority Senators say that a statute may grant
standing to victims to assert their rights. This is correct. But establishing
the rights in the constitution will create standing, so as to make unnecessary
the fight for standing in every State. The Minority Senators don’t oppose
standing for victims, indeed they are “committed to giving victims real and
enforceable rights.” Why constitutional standing to enforce those rights would
be a bad thing is not explained by the Minority Senators.
C. The Proposed Amendment Will Not Have Dangerous and
Uncertain Consequences for the Nation’s Criminal Justice System; It Will, In Fact,
Have Beneficial Consequences
At its roots, the effective functioning of our
justice system relies on the voluntary cooperation of crime victims to report
the crimes against them and testify truthfully when called upon. Victim
distrust of the system and belief that it is unjust cripple the nation’s
confidence in its courts wherever it occurs. This indeed has “dangerous”
consequences for the nation. But expanding rights for America’s crime victims
does not. The Minority Senators express a fear that the amendment “could help
criminals,” and at the same time could cause “the conviction of some who are
innocent and wrongly accused.” There is no basis for these extraordinary
conclusions. Certainly none when the Minority Senators claim to support the
very same rights in statute.
1. The Amendment Will Not Impair the Ability Of Prosecutors To Convict
Violent Criminals and Disrupt the War on Terror
No language in the amendment would allow a victim to “compromise
prosecutorial discretion and independence,” to “effectively dictate policy
decisions,” to place “unknowing, and unacceptable, restrictions on prosecutors”
or to “override the professional judgment of the prosecutor” regarding
investigation, timing, disposition, or sentencing. These assertions by the
Minority Senators are all the more remarkable given their claim to support “comprehensive”
statutory rights.
The amendment gives victims the right to be heard at a public
plea proceeding; it is a right to simply a voice not a veto, not an “override,”
nor the power to “dictate,” as the Minority Senators assert. From this simple
right the Minority Senators project “dangerous” consequences. In the real world
no such consequences unfold. That a judge has the discretion to reject a plea
when he or she determines it not to be in the best interests of justice, and
that a judge may exercise that discretion after hearing from the victim of the
crime, does not undermine in any way the prosecutor’s authority, any more than
when a defendant speaks at a plea proceeding. Merely giving victims a
voice hardly gives victims the power or the right to “obstruct plea
proceedings,” as the Minority Senators asserts. No prosecutor could ever be “forc[ed],”
as asserted in the Minority Senators, to disclose “investigative strategies or
weaknesses in their case” under the amendment. Beth Wilkinson’s fearful
testimony to the contrary notwithstanding, the real life experience in Arizona,
with more than a decade of history and the actual experience of literally
hundreds of thousands of cases, confirms no threat to prosecution. At some
point the fears of hypothesis must yield to reality. No "hands are
tied" by extending this simple voice to crime victims.
Nor
should the Federal Civil Rights laws be of concern to prosecutors. Congress has
the power to define the scope of any such remedy and civil rights action will
lie for a prosecutor’s “unpopular choice.” Indeed, under Arizona law, a victim
may file an action for damages against those who willfully and maliciously deny
rights to a victim. No such action has been filed in the fourteen years the law
has been on the books. The minority view posits a world in which prosecutors
are regularly pitted against victims. Nothing could be further from the truth.
In the real world, prosecutors are not threatened by a victim’s voice, and
victims understand that prosecutors are their champions. Prosecutors do not “represent”
victims in a criminal case as a lawyer “represents” a client and the suggestion
from the minority view that a conflict between the victim and the prosecutor
would require prosecutors “to recuse themselves from the case” is unfounded.
Victims do not see collateral civil litigation against prosecutors as a
meaningful way to enforce rights in a criminal case for good reason. It would
never work.
Senators
Leahy and Kennedy support statutory rights that are “strong and enforceable”
and which they assert will “do more to protect victims than S. J. Res. 1.” And
yet, the Minority Senators oppose the victim’s right to be in the courtroom, speculating
that victims will lie to conform their testimony to that of other witnesses. The
Minority Senators assert that “sequestration rules … are in effect in every
jurisdiction in the country.” As applied to crime victims, this statement is
untrue. Arizona and other states allow victims to be present throughout trial. In
Alabama, crime victims even sit at counsel table. Exceptions are made to the
sequestration rule for important reasons, for the defendant and for the
government's chief investigator. No rule excludes parties in civil cases, who
are also witnesses, and we surely value truth no less in civil cases.
Moreover,
the minority view’s speculation about victims lying is unproven speculation. And there is no need to speculate; there are
States that have not applied the sequestration rule to victims for years and
years without evidence of perjury.
Common
sense is enough to conclude why the exception does not create the evils
predicted by the minority view. First, it's perjury and the victim might go to
prison. Second, changing a statement subjects the victim to devastating cross-examination
because of the prior inconsistent statements, all of which would have been
recorded and made available to the defendant. Third, it would undermine the victim’s
true goal which is to see the guilty punished not the innocent. While a
guilty defendant may have a self‑interested motive to lie to escape
justice, a victim has no similar self‑interested motive to see an
innocent person convicted while the guilty offender remains at large.
Perhaps
these are the reasons why in 14 years no “tailored … testimony” has been found
in Arizona, nor is there any evidence from the real world of jury “discredit[ing]
or discount[ing]” a victim's testimony as the Minority Senators speculate. The
Minority Senators surely know this experience from Arizona. Where their
speculative theory conflicts with hard facts, the minority view seems to choose
theory every time.
The
amendment protects a victim's right not to be excluded from "public
proceedings." It leaves untouched the law which defines when proceedings
may be closed. As was stated in the Committee Report, “Victims' rights under
this provision are also limited to ‘public’ proceedings. Some proceedings, such as grand jury
investigations, are not open to the public and accordingly would not be open to
the victim. Other proceedings, while generally open, may be closed in some
circumstances. For example, while plea
proceedings are generally open to the public, a court might decide to close a
proceeding in which an organized crime underling would plead guilty and agree
to testify against his bosses. See 28 C.F.R. § 50.9. Another example is
provided by certain national security cases in which access to some proceedings
can be restricted. See The
Classified Information Procedures Act, 18 U.S.C. app. 3. A victim would have no
special right to attend. The amendment
works no change in the standards for closing hearings, but rather simply
recognizes that such nonpublic hearings take place.” The Minority Senators
challenge the application of § 50.9, yet their hypothetical of the pleading mob
soldier fits squarely within the four corners of the rule. The rule permits the
government to seek closure when, among other standards, there is “(ii) a substantial likelihood of imminent
danger to the safety of parties, witnesses, or other persons; or (iii) a
substantial likelihood that ongoing investigations will be seriously
jeopardized.” These are the very circumstances the Minority Senators posit.
Nothing in the amendment could
possibly be construed to “[force] prosecutors to try cases before they are
fully prepared.” The right to have an interest in avoiding unreasonable delay
duly considered carries with it no power to “forc[e]” cases to trial prematurely;
indeed, such a result itself would be inherently “unreasonable.”
The Minority Senators fear the
impact the amendment might have on terrorist trials before military
commissions. The proposed amendment would not impair the administration of
justice through its application in proceedings before military
commissions. Although the minority view correctly
notes that the amendment lacks a phrase that would limit its application in
military proceedings “to the extent that Congress may provide by law,” this
purposeful omission of the phrase is by no means a roadmap to the amendment’s
meaning on this issue. While the
minority view would have one believe that the omission in the amendment is a
literary talisman whose application would stifle the functioning of the court
system in certain situations, the plain meaning of the amendment suggests
otherwise. The proposed amendment is
silent on the application before military commissions issue because the
application will be left up to Congress and therefore on its face the amendment
neither supports nor rejects its application in proceedings before military
commissions.
2. The Amendment Will Not Impose Tremendous New Costs on the System
The Minority Senators fear that the right to reasonable
notice will lead to staggering costs. It has not. The costs are far from
staggering and testimony before the Committee has confirmed this. Moreover,
with technological advances, the costs are reducing. Would costs stop the minority
view from defending notice for defendants, or the state? Why should victims be
excluded from this basic element of fairness? Surely in America we are a great
enough, and decent enough, and compassionate enough country to extend to
victims of crime the same notice we give to defendants and the government.
Nothing
in the amendment requires appointment of counsel for crime victims. The Sixth
Amendment comparison offered by the minority view is flawed; clearly there is
no parallel "right to counsel" expressly written into the proposed
amendment. Nor would any sheriff be required to transport an inmate victim to
court because the right "not to be excluded" only applies when
victims can otherwise present themselves at the courthouse. Moreover, the
revised restrictions clause allows greater flexibility in this regard. The right
otherwise parallels the defendant's rights in that neither the defendant nor
the victim would be subject to the sequestration rule.
3. The New Constitutional Rights for Victims Will Not, In Any Way,
Undermine Bedrock Constitutional Protections Afforded To the Accused by the Bill
Of Rights
The Minority Senators concede that "[c]onflicts between victims' rights … and the protections afforded defendants by the Bill of Rights likely would be infrequent," and suggest five examples. None of them conflicts with the Bill of Rights.
Giving victims rights
at the accusatory stage of criminal proceedings does not undercut the presumption
of innocence