• Giving victims a right to be heard in court regarding a plea agreement will mean an end to plea agreements, and bring our office to a grinding halt.

This right already exists in over a dozen states, and is the practice in many other individual jurisdictions. It has not proven to be problematic. Allowing victims a voice at the plea agreement stage does not substantially reduce the number of plea agreements. In the vast majority of cases, where a victim is told the reasons for the plea agreement in advance, he or she supports the prosecutor’s position because the victim wants a conviction. In some cases the victim may understand the reasons, but still value the opportunity to disagree with the proposal before the court. In those instances, the court most often approves the plea agreement, but the victim is more satisfied by having had a say. There will be a very few instances where the victim is strongly opposed, and some occasions where the court will disallow a plea agreement based in part on the victim’s input, but those are rare.

Prosecutors have found that where the victim is consulted in advance, and the victim is informed that prosecutors by law have the final decision on whether to propose a plea agreement but that input from the victim is valued, prosecutors generally have the support of the victims. If prosecutors do not have the confidence in a proposed plea agreement to explain their reasoning to the victim, then perhaps those plea agreements should not be going forward. They are the very instances where prosecutors are likely to have to defend the agreement to the media.

Allowing victims to be heard at plea agreements actually strengthens the prosecutor’s position, both in court and in the eyes of the public, since most victims support the prosecutor’s position on a plea when they understand the reasoning behind it. It is an instant shield against public criticism. A public that might have otherwise disapproved of a tough decision a prosecutor had to make with respect to a plea agreement is much more forgiving if they know the victim is supportive of that agreement.

• Victims’ rights are not cut and dried. There are a lot of victims prosecutors may not want to give rights to, for instance:

The battered woman who wants the charges dropped, or wants the offender treated with leniency. It is true that oftentimes a battered woman will say that she wants the charges dropped, or is opposed to any sort of punishment for an abuser that may be part of a plea agreement (for a more detailed discussion of victims’ right to input at the plea agreement stage, please see above). These situations usually reflect the dynamics of spousal abuse, which prosecutors have come to recognize. Allowing such victims to be notified of and to attend proceedings does not negatively impact our ability to prosecute the case. Allowing such victims the opportunity to be heard at plea agreements and sentencing should not negatively impact our ability to protect the public safety. In the case of a plea agreement, judges must understand that a battered woman’s refusal to cooperate stems largely from the abusive situation. Just as prosecutors have been educated in the dynamics of domestic violence, so too is the judiciary being educated. Allowing such victims to be heard at sentencing should similarly pose no problems.

Moreover, it is likely that as crime victims come to understand that they have certain constitutional rights in the process, such as the right to have their safety considered in any release decision, the right to be notified of release, and the right to restitution from the offender, that a battered woman will be more likely to trust the criminal justice system and to cooperate in the prosecution of her offender, both in the case at hand as well as in future cases, should there be further incidents of abuse.

Gang members victimized by rivals. Attorney General Janet Reno, who has testified before Congress in support of the amendment, is sympathetic to prosecutors’ concerns that the constitutional right to notice of release may lead to cases where gang members are notified of a rival’s impending release from prison. To reflect this concern, the current version of the proposed amendment provides that there will be exceptions for compelling circumstances, language that is intended in part to address gang-related cases.

Incidents which result in cross-charges in which the victim in one case is the defendant in another. In these cases, the parties’ participatory rights would already protected, i.e., they would already be receiving notice, would be present during proceedings, etc., which should not cause any additional burden for prosecutors.

Battered women wrongly caught up in the system (in cases of cross charges, or where an abused woman strikes back against her offender). This problem exists because of a lack of understanding and training regarding domestic violence. Additional training of law enforcement will eliminate many of these cases. Moreover, the exceptions clause of the proposed amendment is also designed with such women in mind, and the legislative history will reflect this. A woman who is charged with assaulting the abuser may be put at risk if the abuser is notified of her release. The exceptions clause should cover such circumstances.

Convicted felons who are victimized in prison. Persons who are victimized while in custody deserve some rights as victims. The right to be notified as the case progresses should not cause a problem. The right to attend will likely be limited in cases of incarcerated victims, again under the exceptions clause as impacting public safety. Currently under the victims’ rights laws of many states the right to attend does not apply where the victim is incarcerated. The right to be heard would only apply where the victim is present; otherwise the victim has the right to file a written statement, which should not be problematic.

Representatives of minor, incapacitated, or deceased victims who are actually the offender. This is a problem easily dealt with through implementing legislation. Under the victims’ rights laws of many states, a person is disqualified from representing a victim if that person is accused or convicted of the crime against the victim. Some states also disallow representatives who have interests adverse to those of the victim. (See Arizona § 13-4403.) The implementing legislation should be able to avoid such circumstances.

What about mass victim cases? For example, will prosecutors have to notify potentially thousands of people who may have been "victimized" by a telemarketing scam? Again, there is an exceptions clause which allows for exceptions to be made to achieve a compelling interest. If it is determined that locating or notifying all victims in a mass victim case is not possible, this clause will cover it. Nonetheless, as the use of automated victim notification systems and other technology increases, it will become easier to notify many victims at once; some prosecutors’ offices already have this capacity.

There is no evidence that this is true. This has not been the experience of states who have implemented similar amendments. Since the majority of expenses associated with the implementation of the rights proposed by the amendment primarily involve the cost of providing notice, it would be hard to say those costs will be overly burdensome.

In addition, the advent of automated notification programs is expected to reduce the cost of providing notice. In fact, there have been proposals at the federal level to provide funding for such programs.

The federal VOCA Fund is at an all time high. Many of the offices and agencies that argue that they can’t afford to hire victim/witness staff have not attempted to apply for VOCA funds.

Moreover, the costs of providing rights to crime victims are pennies on the dollar compared to what we spend for the rights of criminal defendants. Arguments that providing minimum rights would be too expensive would not be legitimate in the context of defendants’ rights; neither should it be acceptable when talking about the fundamental participatory rights of crime victims. It is simply a cost society must be willing to bear.

• Prosecutors’ staff do not have time to implement these rights.

Many of the rights proposed in the amendment are already being implemented by prosecutors’ offices across the country. For example, many victims are also witnesses to the crime, and are already being notified of proceedings by prosecutors’ offices as part of the normal routine. Once systems are in place to notify other participants in a case, such as a law enforcement officer or the complainant, adding additional persons to the list can be simply a matter of a few keystrokes. Also, as was mentioned earlier, the federal VOCA Fund is at an all time high. Many of the offices who believe that they do not have the staff to implement these rights have not attempted to apply for VOCA funds, which could be used to hire victim/witness staff.

Moreover, prosecutors who have experience implementing both state statutes and state constitutional amendments that give victims basic rights to participate in the criminal justice process — which is all the proposed federal constitutional amendment requires — have found that their jobs have not been made harder, but have instead led to smoother prosecutions. Victim input and involvement alerts the prosecutor to additional facts of the case that may not be present in the police report; victim involvement may alert prosecutors to possible defenses. An involved, informed victim is more likely to cooperate and makes for a better witness. Victim participation makes the system run better, and also enhances the victim’s and the public’s faith in the criminal justice process.

• States are already moving forward in recognizing the crime victim, and the delivery of these rights should be left to the states.

The rights that crime victims seek to place in our highest law are fundamental rights to participate in the criminal justice process. Ironically, all affected individuals in the criminal justice context, with the exception of the victim, already have such rights secured for them in the Constitution. The right to be informed, to be present and to be heard are rights to ensure that the government will take care to consider the interests and circumstances of the victim when collecting evidence and prosecuting cases, just as the government is constitutionally required to do for defendants in any criminal case. There are few situations in life that are as personal as a violent victimization; when someone has had their person violated, they have fundamental interests in the proceedings against the perpetrator. While states have made progress in terms of treating victims with respect and dignity in the criminal justice process, the result has been a patchwork of rights. As it currently stands, victims’ rights to participate vary depending on which side of the state line a crime occurred. Just as there is a national platform of rights for every other participant in the criminal justice system, so too should there be for the victims of crime. This cannot happen until we amend the Constitution to provide for crime victims’ basic rights.

No. The language of the amendment expressly prohibits a cause of action for damages against the United States, a State, a political subdivision, or a public official.

• Prosecutors can’t be expected to make these changes overnight.

This is not an overnight proposition. Assuming the amendment passes the Congress, it must still be ratified by 3/4 of the states, a process that is likely to consume all seven years allotted to it.