[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
VICTIMS' RIGHTS AMENDMENT
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
ON
H.J. Res. 40
__________
APRIL 25, 2013
__________
Serial No. 113-18
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
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Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida STEVE COHEN, Tennessee
[Vacant] TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
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APRIL 25, 2013
Page
THE BILL
H.J. Res. 40, the ``Victims' Rights Amendment''.................. 4
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 7
WITNESSES
William G. Montgomery, Maricopa County Attorney
Oral Testimony................................................. 11
Prepared Statement............................................. 14
John W. Gillis, Maricopa County Attorney's Office's Victim
Services Division
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Robert P. Mosteller, Professor, University of North Carolina
School of Law
Oral Testimony................................................. 31
Prepared Statement............................................. 34
Douglas E. Beloof, Lewis & Clark Law School
Oral Testimony................................................. 40
Prepared Statement............................................. 42
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking
Member, Committee on the Judiciary, and Member, Subcommittee on
the Constitution and Civil Justice............................. 7
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution and Civil Justice... 60
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 213
Supplement to the Testimony of William G. Montgomery, Maricopa
County Attorney................................................ 214
VICTIMS' RIGHTS AMENDMENT
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THURSDAY, APRIL 25, 2013
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 11:34 a.m., in
room 2237, Rayburn Office Building, the Honorable Trent Franks,
(Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Chabot, DeSantis, Nadler,
and Scott.
Staff present: (Majority), John Coleman, Counsel; Sarah
Vance, Clerk: (Minority) David Lachmann, Subcommittee Staff
Director; and Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
Today's Subcommittee on the Constitution and Civil Justice
examines H.J. Res. 40, the bipartisan ``Victims' Rights
Amendment'' to the Constitution, also known as the VRA.
An amendment to the Constitution for the rights of victims
was first proposed by President Ronald Reagan's Task Force on
Victims of Crime in 1982. The task force wrote, in part--do we
have some feedback here? I didn't want you all to miss this
quote. It is really a cool quote. [Laughter.]
The task force wrote, in part, ``We do not make this
recommendation lightly. The Constitution is the foundation of
national freedom, the source of national spirit. But the
combined experience brought to this inquiry and everything
learned during its process affirmed that an essential change
must be undertaken. The fundamental rights of innocent citizens
cannot adequately be preserved by any less decisive action.''
Victims' rights legislation amendments have enjoyed broad
support at the state and Federal levels, passing by 80 percent
margins in the states and securing influential bipartisan
support at the highest levels of the Federal Government.
Senators Kyl and Feinstein have championed victims' rights in
the Senate, and multiple house and Senate hearings have been
devoted to advancing victims' rights.
Despite the best efforts at the state and Federal level to
bring balance through statutes or state constitutional
amendments, these efforts have proven inadequate whenever they
come into conflict with bureaucratic habit or traditional
indifference or sheer inertia or the mere mention of an
accused's rights, even when those rights are not genuinely
threatened.
As the U.S. Justice Department concluded after careful
review of the issue, the existing ``haphazard patchwork of
rules is not sufficiently consistent, comprehensive or
authoritative to safeguard victims' rights.'' In light of the
inadequacies of our current laws, it is time we amended the
United States Constitution to include rights of victims of
crime, and it is time for Americans who become victims of crime
to have the same rights anywhere in the United States,
regardless of the state in which that crime occurs.
The VRA would specifically enumerate rights for crime
victims, including the right to fairness, respect and dignity;
the right to reasonable notice of and the right not to be
excluded from public proceedings related to the offense; the
right to be heard at any release, plea, sentencing, or any
other such proceeding involving any right established in the
amendment; the right to proceedings free from unreasonable
delay; the right to reasonable notice of the release or the
escape of the accused; the right to due consideration of the
crime victim's safety and privacy; and the right to
restitution. Moreover, the amendment expressly provides
standing for the victim to enforce the enumerated rights.
Supporters of a victims' rights amendment have included
presidents George H. W. Bush, Bill Clinton, George W. Bush;
Attorneys General Janet Reno, John Ashcroft, and Alberto
Gonzales; Professor Larry Tribe of the Harvard Law School; the
National Governors Association; 50 state attorneys general;
Mothers Against Drunk Driving; the National Association of
Parents of Murdered Children; the National Organization of
Victims' Assistance; and finally, the National District
Attorneys Association, the voice of the Nation's prosecutors.
Last year, the Phoenix Law Review, at the Phoenix School of
Law, published a special issue containing articles and authors'
statements regarding the Victims' Rights Amendment. I would
like to ask unanimous consent to put it into the record.
Hearing no objection, so ordered.*
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*The material submitted for the record is not reprinted in this
hearing record but is on file with the Subcommittee.
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The issue is entitled, ``A Proposed Victims' Rights
Amendment to the Constitution,'' and it is dated April 19,
2012.
In addition, my office has received several law review
articles, additional written testimony, a proclamation by
Governor Brewer of Arizona recognizing this week as Arizona
Crime Victims' Rights Week, and letters from victims' rights
organizations, including the National District Attorneys
Association, the National Organization for Victim Assistance,
the National Center for Victims of Crime, and the Justice
Fellowship, which we will add to the hearing record as well.**
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**The information referred to is available in the Appendix.
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I look forward to hearing from the witnesses today on this
critical issue, and I will now yield to the Ranking Member, Mr.
Nadler, for his opening statement.
[The resolution, H.J. Res. 40, follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you, Mr. Chairman. I apologize for being
a little late and I thank you for holding the hearing.
First of all, I ask unanimous consent that the statement of
the distinguished Ranking Member, Mr. Conyers, be placed in the
record.
Mr. Franks. Without objection, so ordered.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Thank you, Mr. Chairman.
Today, we examine the proposed Victims' Rights Amendment to the
Constitution, an issue that has come before this Committee many times
since the 104th Congress.
The timing of this hearing is especially appropriate as it
coincides with the National Crime Victims Rights Week.
This hearing, therefore, provides an excellent opportunity to
reflect not just on what has been accomplished, but what more we can do
to aid victims of crime.
I continue to have serious reservations about amending the
Constitution in order to aid victims or crime. I do not believe a
constitutional amendment is necessary, and I am deeply concerned that
it will undermine both the rights of defendants, and the ability of law
enforcement to do its job.
As we consider the Victims' Rights Amendment, I would like us to
keep the following issues in mind.
First, would a constitutional amendment actually provide any
benefit to a victim of crime?
As demonstrated by prior Congresses, there has never been any
action on this undertaking because of the cumbersome nature of amending
the Constitution.
However, Congress has passed various measures that continue to
provide meaningful assistance to victims and that protect their rights.
The Federal Crime Victims Assistance Fund--managed by the FBI and
various Justice Department Divisions--provides critical assistance to
victims and survivors immediately after the crime.
The Treasury Offset Program is a centralized debt collection
program that helps agencies collect delinquent debts owed by criminals
and to ensure that they pay restitution to crime victims. To date,
these efforts have resulted in more than $24 million in restitution
payments.
The Office for Victims of Crime funds programs to enhance and
provide comprehensive services for victims of human trafficking.
The Drug Endangered Children Program is a collaboration among
federal, state, and local nonprofit entities and the public to develop
best practices to help educate law enforcement, justice system
personnel, and service providers about children put in harm's way by
family members involved in drugs.
There are also programs funded under the Children's Justice Act and
federal funding for victim-witness coordinators in U.S. Attorneys's
Offices and the FBI. In addition, federal funds support the Federal
Victim Notification System, and state victim assistance formula grants.
These are just a few of the efforts to provide assistance to crime
victims.
In contrast, the Victims' Rights Amendment is utterly silent about
how it would provide any meaningful counseling, funding, or other
assistance that experience has shown is so helpful in the wake of a
crime.
The services now being provided to crime victims are invaluable,
and it would make sense to augment them.
Yet, while we are wasting time on this Amendment, budget cuts,
including the sequester, have reduced the resources available to help
victims and law enforcement. We should build on our successes, not
undermine them.
Second, we should consider how would this Amendment affect other
rights under the Constitution.
In particular, I am very concerned that the Amendment would
interfere with the right to a fair trial notwithstanding its broad
declaration that the ``rights of a crime victim to fairness, respect,
and dignity, [are] capable of protection without denying the
constitutional rights of the accused.''
Just because we say it doesn't make it true.
Most troubling, it drastically changes the contours of a criminal
trial from one in which the guilt or innocence of a defendant must be
determined, instead requiring courts to behave in ways that assume
guilt prior to trial.
But other aspects of this Amendment, including actions that would
prejudice the jury, or allow a third party to demand that a trial move
ahead when the prosecution or the defense are trying to assemble a
case, could wreak havoc.
Finally, we should consider what would be the impact of a
constitutional amendment on the administration of justice, particularly
the effective and expeditious prosecution of criminals.
The Amendment would create numerous opportunities for litigation to
interfere with the judicial process.
We have heard in the past from prosecutors and some victims rights
advocates about the danger of giving so wide a group of individuals the
right to sue.
For example, a person who had abused a woman for 20 years, and who
was ultimately stabbed by her, would enjoy the full range of newly
created constitutional rights under this Amendment.
A victim who objected to the prosecution's strategy, or the
decision by a prosecutor to wait for additional evidence, for example,
could sue and assert that his or her constitutional rights had been
violated under this Amendment.
There are many reasons why, over the years, we have never advanced
this constitutional amendment, and that we have sought legislative and
administrative means of protecting the rights of victims, and assisting
them in the aftermath of crime.
I want to thank the witnesses for attending. I look forward to
their testimony.
Thank you, Mr. Chairman. I yield back.
__________
Mr. Nadler. Thank you. Thank you, Mr. Chairman.
Mr. Chairman, today we consider a subject of great
importance to every Member of this House, our responsibility to
ensure that victims of crime have their rights respected, their
needs met, and the role that everyone in the criminal justice
system must play in assisting victims who have suffered great
harm. It is especially suitable that we are discussing these
vital issues during National Crime Victims Week.
There was a time in this country when victims of crime were
not treated respectfully. At times, crime victims felt, and not
without justification, that they were considered almost
extraneous to the process. With greater awareness and legal
protections enacted at the state and Federal levels, victims
now receive all kinds of assistance, including counseling,
financial assistance, notification, and the respect to which
anyone who has suffered harm is entitled. We offer both
financial and technical assistance to states to help them
provide services to crime victims.
So while we have made great progress, we can and should do
more. We could provide more funding for crime victims'
programs. We could provide the training and resources necessary
to ensure that our existing laws, which require notice and
assistance to crime victims, are fully enforced.
One thing we did recently that will help crime victims was
to put an end to the delays and obstructionism that held back
the reauthorization of the Violence Against Women Act. The
resources that that act provides to victims of some of the most
heinous crimes is invaluable.
Crime victims also need to see the guilty party is punished
and to be reassured that neither they nor anyone else will have
to fear further victimization by that individual. In that
regard, I have serious concerns about this proposed
constitutional amendment. We have heard from law enforcement
professionals that it will do more to obstruct the wheels of
justice than to provide victims with the assistance they need
to put their lives back together. It will certainly spark
extensive litigation in our already over-burdened criminal
justice system, and it may provide an opportunity for people
who do not have the best of motives to cause terrible trouble
in prosecutions.
Our first obligation to crime victims is to provide
assistance, but we must do the job right. Constitutional
amendments may make for great headlines, but they are no
substitute for the resources victims and law enforcement need.
Offering symbolic gestures to crime victims and stonewalling
legislation that would provide assistance to them is not the
way to help victims of crime.
Cutting funding for victim assistance programs, as the
sequester legislation has done in the name of fiscal austerity,
is certainly not the way, and I hope that my colleagues will
remember that when we take up the Balanced Budget
Constitutional Amendment later this year. For example, the
Crime Victims Fund was established by the Victims of Crime Act
to provide funding for state victim compensation and assistance
programs. The CVF, the Crime Victims Fund, provides funding for
discretionary grants for private organizations' assistance, the
Federal Victim Notification System, funding for victim
assistance staff within the FBI and the executive office of the
U.S. Attorney, funding for the Children's Justice Act Program,
and compensation for victims of terrorism. It is funded through
criminal fines, forfeited appearance bonds, penalties and
special assessments collected by the U.S. Attorney's Office,
Federal courts, and the Federal Bureau of Prisons.
Since 2002, Congress has allowed gifts, bequests and
donations from private entities to be deposited into the CVF.
For fiscal year 2012, Congress set the CVF distribution cap at
$705 million. For fiscal year 2013, the Obama Administration
requested an increase in the CVF cap by $365 million, to a
total of $1.07 billion, but Congress limited funding to $705
million. According to OMB, the sequester resulted in the loss
of approximately $36 million to that reduced number. This means
real less services to victims of crimes.
So if we are to measure Congress' commitment to crime
victims in terms of providing them with actual assistance
instead of by rhetoric, then this Congress and the reckless
budget cutters simply don't measure up.
Amending the Constitution is also difficult, as it should
be. We have only had, since the Bill of Rights was added in
1791, 17 amendments to the Constitution, three of them in the
aftermath of the Civil War. So since the Civil War, only about
a dozen.
In the case of this proposed amendment, this Committee,
much less this House, has not even acted on it. We do hold
hearings every Congress, but that is the end of it. Debating
yet another constitutional amendment that we know from long
experience is going nowhere will certainly not help victims of
crime. We will hold a hearing, we will talk about it today, and
that will probably be the end of it. Judging from past
experience, Republican congresses will hold this hearing, we
will never mark up a bill, we will never pass it, and certainly
the Senate won't look at it. That will help no one. Certainly
it won't help victims of crime. Legislation that protects
victims' rights and improves services would help victims of
crime. I hope that we can work together to improve and expand
those services in the future.
I want to join the Chairman in welcoming our panel today,
and I look forward to their testimony. I thank the Chairman and
the witnesses, and I yield back the balance of my time.
Mr. Franks. I thank the gentleman.
We would now yield to the Chairman of the Committee, Mr.
Goodlatte from Virginia. However, Mr. Goodlatte is not here at
the moment. So without objection, if he arrives, we will allow
him to make his statement at that time. Otherwise, we will
place his statement in the record.
I would now yield--let's see, I think Mr. Conyers'
amendment or his opening statement will be placed in the record
as well.
Let me now introduce our witnesses.
Bill Montgomery is the County Attorney for Maricopa County,
Arizona. Mr. Montgomery is a West Point graduate, decorated
Gulf War veteran, former Deputy County Attorney, and a
professional prosecutor. Mr. Montgomery earned his J.D. from
Arizona State University College of Law, graduating magna cum
laude and receiving the Order of the Coif. As a prosecutor with
the Maricopa County Attorney's Office, he quickly gained a
reputation as an aggressive prosecutor. Mr. Montgomery has
helped shape legislation designed to protect victims of crime
and reform child protective services, resulting in the creation
of the Office of Child Welfare Investigations, and he continues
to be a passionate advocate for crime victims' rights in
Arizona.
Glad you are here, Bill.
John W. Gillis is a former veteran, Los Angeles police
officer, a former National Director of the Office of Victims of
Crime in the U.S. Department of Justice, and a champion for the
rights of crime victims. Following the 1979 murder of his
daughter, Louarna, Mr. Gillis became a founding member of
Justice for Homicide Victims, JHV, and the Coalition of
Victims' Equal Rights. Mr. Gillis was nominated by President
George W. Bush and confirmed by the U.S. Senate in September,
2001, as the National Director, Office for Victims of Crime,
U.S. Department of Justice. In addition to a Master of Science
degree in public administration, University of Southern
California, he holds a B.A. degree in political science from
California State University at Los Angeles. He has studied law
at Glendale College School of Law, and Mr. Gillis serves as
Chief of the Maricopa County Attorney's Office Victims Services
Division, and on the Board of Directors at the National Crime
Victim Law Institute.
Thank you for being here, sir.
Professor Robert Mosteller--is that Mosteller? I know no
one has ever gotten that wrong before. Professor Robert
Mosteller is an Associate Dean for Academic Affairs at the J.
Dixon Phillips Distinguished Professor of Law at the University
of North Carolina School of Law. Professor Mosteller holds a
B.A. in history from the University of North Carolina, where he
was President of the Phi Beta Kappa, a Master's in public
policy from Harvard, and a J.D. degree from Yale. After
clerking on the United States Court of Appeals for the Fourth
Circuit with Judge J. Braxton Craven, he worked for 7 years
with the Washington, D.C. Public Defenders Service, where he
was Director of Training and Chief of the Trial Division.
Professor Doug Beloof is a law professor at Lewis and Clark
School of Law. Professor Beloof is a graduate of the University
of California at Berkeley and received his J.D. from
Northwestern School of Law of Lewis and Clark College.
Professor Beloof began his law career clerking for Justice
Thomas H. Tongue of the Oregon Supreme Court. As Director of
the Multnomah County Victims' Assistance Program, he worked on
establishing procedures to assist victims of crime. He has been
a prosecutor and a criminal defense attorney, as well as
practicing tort law as a plaintiffs and defense attorney.
Professor Beloof has published a casebook, Victims and Criminal
Procedure, which won a national award for writing in
victimology and the law. He has published numerous articles
about civil liberties for crime victims and also the book
Victims' Rights, a Documentary and Reference Guide.
Thank you, Professor, for being here.
Each of the witness' written statements will be entered
into the record in their entirety, so I would ask that each
witness summarize his or her testimony in 5 minutes or less. To
help you stay within that time, there is a timing light in
front of you. The light will switch from green to yellow,
indicating that you have 1 minute to conclude your testimony.
When the light turns red, it indicates that the witness' 5
minutes have expired.
Before I recognize the witness, it is the tradition of the
Subcommittee that they be sworn, so if you would please stand
to be sworn.
[Witnesses sworn.]
Mr. Franks. Let the record reflect that the witnesses
answered in the affirmative.
I would now recognize our first witness, and please turn
the microphone on before you start speaking.
Mr. Montgomery?
TESTIMONY OF WILLIAM G. MONTGOMERY,
MARICOPA COUNTY ATTORNEY
Mr. Montgomery. Thank you, Mr. Chairman. Dear Mr. Chairman
and Members of the Committee, thank you for the opportunity to
appear in support of House Joint Resolution 40, the Victims'
Rights Amendment, and let me also offer my gratitude to the
Chairman and to Congressman Jim Costa for their continuing work
on behalf of victims of crime.
For the criticism regarding partisanship in our Nation's
capital, this legislation offers a ready antidote, a bipartisan
approach to protecting our fellow citizens when they are harmed
by crime, and this is truly a bipartisan cause. In the
thousands of police reports I have read over the years as a
prosecutor, I have never read of an instance in which a
perpetrator checked the party affiliation of someone before
victimizing them.
In addition to serving as a prosecutor, I have also worked
as a victim rights attorney, advocating for crime victims in
state and Federal courts. Currently, I am the elected county
attorney, called a district attorney in other jurisdictions,
and lead an office serving 4 million people in Maricopa County,
Arizona. I am authorized over 300 prosecutors and have another
40 to 50 civil litigation attorneys on staff. Annually, we
prosecute roughly 35,000 felonies.
Accordingly, my observations of the status of victim rights
is based on firsthand experience in a courtroom and in working
directly with victims of crime. When I tell you that
patronizing arguments in opposition to the Victims' Rights
Amendment are based on false assumptions and disingenuous
hypotheticals, I am speaking from that firsthand experience.
As for concerns over acknowledging the victim of a crime as
a victim in the courtroom, let me simply state they are
unfounded. It does not shift the government's burden of proof
or relieve the jury of their duty to find the facts in any
given case to determine whether this victim was harmed by this
particular defendant in the manner as alleged by the
government. The argument that a victim's right to proceedings
free from unreasonable delay ignorantly claims that trials will
proceed in violation of a defendant's due process rights. This
is an example of rights that can work in parallel without
offense to either a defendant or a victim. A defendant has a
right to a speedy trial but will not move faster than their
attorney can prepare, and neither will the prosecution. Delays
due to the needs of discovery or witness availability are not
impacted.
Those are reasonable delays. In my experience, victims
understand that. They do not seek to push trials where the
danger of a retrial can affect a just outcome.
As for the argument that a constitutional right for a
victim to be present throughout a trial would affect the
defendant's right to a fair trial, I can only say that this
argument is as false and disingenuous as the hypotheticals
offered in support in written testimony presented to this
Committee.
For the record, Abner Louima was never prosecuted for an
offense stemming from his initial contact with police. The
charges were dropped in his case, and the police officers who
harmed him were sent to prison.
As for Rodney King, he was never charged for his high-speed
flight from police, and the two officers involved in beating
him were imprisoned.
But, as we have seen, ever since the cause of
constitutional rights for victims of crime began, opponents
will go to great lengths to scare lawmakers away from justice
for all.
Why is a victims' rights amendment necessary? Because the
inconsistent approaches to crime victim rights across our
country is unacceptable for a Nation that pledges justice for
all and not justice for some or justice only for the accused.
What rights would a victim of the Boston Marathon bombing have
if the case went to trial in a Massachusetts state court? They
would have no constitutional rights to assert whatsoever, and
the Supreme Judicial Court of Massachusetts has stated that a
crime victim has no judicially cognizable interest in the
prosecution of another.
What about the parents of children lost in the tragedy of
Newtown? What if the perpetrator had been tried in state court?
There, they would be able to assert state constitutional
rights, unlike in Boston, just 149 miles away in an adjoining
state. However, the Supreme Court of Connecticut, in reviewing
their Constitution, noted a review of the language of the
Victims' Rights Amendment discloses that the amendment, while
establishing many substantive rights for crime victims, does
not include a right to appeal.
As for the loss of life in Tucson, Arizona from a shooting
that also affected a former Member of this House, had the
perpetrator gone to trial in Federal court, the crime victims
would have had fewer guaranteed rights than if the case had
been tried in one of our state courts following our Victims'
Bill of Rights. Nevertheless, any contest between state
statutory or constitutional rights and Federal constitutional
rights, or Federal statutory rights and Federal constitutional
rights, the result is the same. Victims lose.
To those who hesitate or shy away from amending our
Constitution to protect victims, I would say, with all due
respect, it is a good thing they were not in the first Congress
that provided us with a Bill of Rights. It is good they were
not in the 38th Congress that ended slavery, or the 39th
Congress that asserted rights to equal protection and due
process. It is good they were not in the 66th Congress that
extended the right to vote to women, and it is good that they
were not in the 87th Congress that ended the poll tax. You see,
through the long course of our history, the great injustices in
America have ended with constitutional justice.
In closing, let me note that Sir Winston Churchill once
observed that Americans can always be counted on to do the
right thing after we have tried everything else. We have tried
everything else. I encourage your support for the Victims'
Rights Amendment.
[The prepared statement of Mr. Montgomery follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Well, thank you, sir, very much.
And now, Mr. Gillis, we would recognize you, sir, for 5
minutes.
TESTIMONY OF JOHN W. GILLIS, MARICOPA COUNTY ATTORNEY'S
OFFICE'S VICTIM SERVICES DIVISION
Mr. Gillis. Thank you, Mr. Chairman. Mr. Chairman and
distinguished Members of the Committee, thank you for the
opportunity to address you on the very important issue of
rights for crime victims. As we hear so often, becoming a crime
victim is not something one aspires to achieve through training
and education. Although many people become unintended victims
of crime each day, our United States Constitution fails to
specifically provide basic rights to those individuals who are
victimized.
The victims are young and old. They are rich and poor. They
are people of all ethnicities and colors. But our Constitution
treats them all the same. It completely ignores them.
In 1979, my 22-year-old daughter, Louarna, was murdered by
a gang member who wanted to move up in the gang hierarchy.
Getting into the upper echelon was a long, tough climb for an
ambitious gang member. The shortcut was an assault on a police
officer or a member of the officer's family. He took the
shortcut and murdered my daughter. He drove her to an alley
where he shot her in the back of the head execution style, and
then emptied the revolver in her back as she laid on the
ground. He knew who she was because he had attended school with
her, and he knew I was a police officer.
But within a few months after the murder, he was in
custody, and a few months thereafter the trial began. During
the course of the trial, my wife and I were not allowed in the
courtroom for any testimony. We were relegated to sitting on
the bench in the hallway while the defendant's family, friends
and others were seated in the courtroom. We had to endure the
sneers and jeers each time they walked past.
There are still jurisdictions within the United States
where victims of crime wait in hallways, back rooms, and
outside the courthouses because they are not welcome by our
criminal justice system.
Over one-third of the United States have not amended their
constitutions in order to provide victims in their state the
right to be present in court proceedings. These states don't
see the need for victims to have the right to be heard or the
right to be treated with fairness and dignity. Over one-third
of the states still treat victims as second-class citizens who
are not deserving of constitutional rights.
The murderer of my daughter was tried for first-degree
murder, and that made him eligible for the death penalty.
Eleven jurors voted for first-degree and one juror voted not
guilty. As we prepared for the second trial, the defendant pled
guilty to second-degree murder, and that allowed him to avoid
the death penalty. I was not present for the plea, I was not
present for the defendant's sentencing, nor was I allowed to
make an impact statement. These events were important to me and
my family, and I know these events are important to the
majority of America's crime victims.
Every crime victim in the United States should be
guaranteed the right to be present, the right to be treated
with dignity and respect, and the right to be heard should be a
basic right under the Constitution. My experience as a crime
victim in the criminal justice system is not unique and it is
experienced by tens of thousands of crime victims across
America. Like most victims, I tell my story not for sympathy or
pity. I tell my story to let others know I speak from
experience when I say the system needs a fix.
Two days after the September 11, 2001 terrorist attack, I
was confirmed by the Senate as Director of the Office for
Victims of Crime. During my first days as director, I was
completely immersed in the nuances of working with many states
that had victims and next-of-kin from the terrorist attack.
Each state had different variations and protocol for working
with victims and next-of-kin, and those variations still exist.
Mass victimization events such as 9/11 and the shootings at
Virginia Tech and Northern Illinois University and Delaware
State University and the Boston Marathon bombing involved
victims from multiple states and highlight the need for a U.S.
constitutional amendment.
There are literally tens of thousands of individuals who
are victimized outside their states of residence. With the
expanding use of the Internet, including social media, there
are no geographic boundaries. Child sexual predators reach
across state lines in search of their victims. Rapists and
pedophiles use social media to reach across state lines to find
their victims. The pool for identity theft victims is
nationwide.
Our best hope for protecting the victims' rights is a
constitutional amendment, and I am optimistic that the bill
will move from this Committee. My optimism is based on the fact
that Members of this Committee have steadfastly supported the
rights of women, the rights of children, and the rights of
minorities. So I am optimistic that this Committee will support
rights for victims.
This constitutional amendment would be the capstone for the
individuals and groups you have fought so hard to protect. This
amendment is for people who do not have the power. This
amendment is for people who do not have the funds, the people
who do not have the will, and the people who do not have the
wherewithal to individually fight for their rights. Thank you.
[The prepared statement of Mr. Gillis follows:]
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__________
Mr. Franks. Thank you, Mr. Gillis.
I would now recognize Professor Mosteller for 5 minutes.
TESTIMONY OF ROBERT P. MOSTELLER, PROFESSOR, UNIVERSITY OF
NORTH CAROLINA SCHOOL OF LAW
Mr. Mosteller. Chairman Franks and Members of the
Subcommittee, thank you for this opportunity to testify. I urge
you not to adopt H.J. Res. 40. Victims of crime deserve
society's support. My opposition is only to amending the
Constitution with unnecessary or harmful provisions.
We have amended the Constitution very rarely and should do
so only for compelling reasons, which are not present. Indeed,
there is a mismatch between the legitimate goals of the VRA and
when a constitutional amendment is needed.
The VRA has three main goals. The first is participatory
rights such as notice of hearings. This goal is broadly
embraced and protected through states' constitutions and
legislation. When not fully enforced, it is because of lack of
resources and inertia. These provisions are not trumped by
defendants' rights. Constitutionalizing them does not
accomplish full enforcement.
The second, providing support, has largely disappeared from
later generations of the VRA. Earlier versions provided victims
the affirmative right to be protected, for instance, but not
the VRA. Damage awards against the government have been
eliminated. Constitutionalizing is either a non-issue or
unprecedented.
The third is damage to defendants' rights. Of the three
purposes, only when a Bill of Right guarantee is denied by a
victim's right is a constitutional provision required. The
Crime Victims' Rights Act recognizes a provision of the VRA
that can deny defendants' rights. Instead of an unequivocal
right to presence, it authorizes exclusion of victims who were
witnesses if the court determines their testimony would be
materially altered. The infamous cases of Abner Louima and
Rodney King show the danger of unequivocal presence. As I
clearly stated in my written testimony, but for the clear
medical evidence and the videotape, Louima and King were on
their way to being charged with assaulting police officers. The
true perpetrators would have been beneficiaries of the VRA.
Imagine the four officers who beat King having the
constitutional right to be present to coordinate their lies. No
exception is recognized even when the alleged victims provide
the only evidence that a defendant is guilty. Louima, King,
hundreds of DNA exonerations, and the Duke lacrosse case
demonstrate an essential problem with the amendment. We know at
the beginning of the case the identity of the accused because
that status is directly the result of being charged. However,
we do not know for sure who is the victim, and more frequently
whether this defendant is responsible. The effect of the
amendment is to write into the Constitution the error of some
in the Duke lacrosse case, rushing to judgment. The language in
the preamble, the rights of a crime victim being capable of
protection without denying constitutional rights of the
accused, does not eliminate the problem. It has three plausible
interpretations.
First, it may simply declare the drafters' intent that no
conflict exists between these two rights. That doesn't
eliminate the damage; it authorizes it.
Second, it can be read that when conflicting, the rights of
the victim and the defendant will be balanced. Balance here
means diminished, another description of denied.
The third can be read that whenever a conflict is found
between the two sets of rights, defendant's constitutional
rights will prevail. Only this interpretation eliminates the
potential damage, and it should be added to the provision.
I note two practical problems. First, the definition of the
VRA is extraordinarily broad with respect to ``victim.'' It
draws no distinction between felonies and misdemeanors or
between crimes of violence and crimes that harm property. In
the Federal system, misdemeanors play only a minor role. But in
states, prosecutors' offices must handle a huge volume, and
courts as well, with incredible speed. The North Carolina
Victims' Rights Act limits covered crimes among low-grade
felonies and misdemeanors, and in misdemeanors it covers only
domestic violence. This Federal amendment obliterates those
fine distinctions. It would add cost and harm efficiency to
over-worked and under-funded state criminal justice systems
without offsetting benefits.
Second, crime victims are given an unqualified right to
restitution. This is not a right to an order of restitution
from the convicted offender in an earlier version. It
guarantees restitution and places no limit on the entity
subject to paying restitution. A broad definition of ``victim''
and an unlimited restitution right would have serious
consequences. Let me give you one example.
In North Carolina, many traffic offenses, such as speeding,
are misdemeanors. A simple traffic offense now with speeding
involved would become a covered offense with mandatory
restitution.
In sum, the VRA would harm cost-effectiveness without
materially increasing participatory rights and victim support,
and it would write a rush to judgment into the Constitution.
[The prepared statement of Mr. Mosteller follows:]
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__________
Mr. Franks. Thank you, Professor.
Now we will recognize Professor Beloof for 5 minutes.
TESTIMONY OF DOUGLAS E. BELOOF,
LEWIS & CLARK LAW SCHOOL
Mr. Beloof. Thank you, Chairman Franks, honorable Ranking
Member. Thank you for the opportunity to speak today. I am here
to support the Crime Victims' Rights Amendment to the United
States Constitution, House Joint Resolution 40. For my
framework, I adopt the framework of Professor Laurence Tribe,
distinguished professor of constitutional law at Harvard, also
a noted Democrat.
First, for a constitutional amendment to be appropriate,
the people must widely agree that victims' rights deserve
serious and permanent respect. Victims' state constitutional
rights exist in more than two-thirds of the states, and I only
need to reference the Chair's introductory remarks to reveal
how accepted they are across the country. Clearly, there is
wide agreement that victims' rights deserve serious and
permanent respect.
Second, the right is one that is insufficiently protected
under existing law and cannot be adequately protected through
political action such as legislation. Fundamentally, the
objective of victims' rights is to include victims' interests
in the culture of the criminal justice system. Experience has
shown that to change the inertia of the system, a
constitutional amendment is needed. While many laws providing
for rights exist, enforcement of those rights varies widely,
and too frequently they are honored in the breach.
In my written testimony, I provide examples of these
problems under Federal legislation. Professor Paul Cassell and
former Federal Judge Paul Cassell has submitted written
testimony that also provides examples of how victims' rights
under statute have been honored in the breach. The point of the
examples is not to deride the Justice Department or the courts.
Contrary to these examples, there are many fine Federal
prosecutors who routinely comply with victims' rights, and both
the Clinton and Bush-era Justice Departments supported a crime
victim's rights amendment. Rather, these examples reveal how
statutory rights can be ignored with impunity. Moreover, the
examples reveal that under the CVRA, often no remedy is
provided by the courts.
On the other hand, defendants' constitutional rights are
far less likely to be ignored simply because the rights are
constitutional. Prosecutors universally respect defendants'
rights precisely because defendants' rights are constitutional
rights safeguarded by the Supreme Court. The same will occur
when victims' rights are in the Constitution.
Next, a right must be one whose inclusion in the U.S.
Constitution would not distort or endanger basic principles of
the separation of powers among the Federal branches or the
division of power between national and state governments.
Separation of powers is, of course, enhanced by the amendment
as the Bill of Rights is historically the place for important
rights.
While Federalism is an important value, this amendment
poses no threat to it. The Supreme Court dictates the baseline
of defendants' rights for all the states as a Federal matter.
Individual rights in criminal procedure is already Federal and
has been for decades. There is no hint, even in dicta, even by
the most ardent of Federalists on the Supreme Court, that the
Supreme Court will ever change this reality. Consistent with
this constitutional reality, victims' rights are appropriately
placed in the Federal Constitution because the Federal
Constitution is the baseline of individual rights in criminal
procedure in this country. Thus, the ongoing exclusion of
victims' rights from the Constitution actually reduces the
importance of victims' rights. Moreover, including victims'
rights in the Constitution works no new damage to Federalism
principles. Without a constitutional amendment, there is no
national baseline for victims' rights.
Next, the right would be judicially enforceable without
creating open-ended or otherwise acceptable funding
obligations. One of the weakest arguments made against victims'
rights has been that the administrative sky would fall. This
argument has been made over and over, over the 35 years that
victims have been trying to secure meaningful rights in this
Nation. There is enough experience with victims' rights now,
both in the states and under the Crime Victims' Rights
Amendment federally, to know that the sky will not fall in the
administration of justice.
In the 10 years since the passage of the Crime Victims'
Rights Act, for example, the sky has remained firmly in its
heavens. A review of the case law in that 10-year period
reveals nothing that could credibly be described as
overwhelming the administration of justice. Quite the contrary,
the number of appellate and district court opinions is very
small. To be sure, trial courts more frequently accommodate
victims' rights than appellate court, but there is no empirical
evidence that the courts have been clogged by victims' rights.
Finally, no actual constitutional rights of the accused
should be violated by the amendment. In terms of conflicts with
defendants' rights, in the 10 years of cases under the Crime
Victims' Rights Act, there has been no Federal appellate court
case that has found a conflict with the defendants'
constitutional rights. In fact, the period of time Federal
courts have had to find conflict is far greater than 10 years,
yet no cases have found conflict with the defendants' rights.
As to accommodating the defendants' rights, the bill says,
``Victims' rights, being capable of protection without
violating the rights of the accused, shall not be denied or
abridged by the United States or any state.'' This language was
provided by Professor Tribe.
I believe that the only way to change an entrenched
criminal justice process is for there to be a constitutional
amendment. I urge you to favorably vote this bill out of
Committee. Thank you, Mr. Chair.
[The prepared statement of Mr. Beloof follows:]
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__________
Mr. Franks. Thank you, Professor Beloof.
Thank you all for your testimony.
We will now proceed under the 5-minute rule with questions,
and I will begin by recognizing myself for 5 minutes.
Mr. Gillis, in addition to your personal testimony, I want
you to know your personal testimony was very powerful to me.
The presence of you and your wife here today is an inspiration,
and I am sorry for your loss, and I am grateful that you have
chosen to try to turn it into something that will help prevent
others from dealing with the same kind of loss.
Mr. Gillis. Thank you.
Mr. Franks. Can you describe real-life examples for
existing crime victims' statutes or state constitutional
amendments that have failed to provide the protections that
they promised to crime victims?
Mr. Gillis. I think I would have to refer to my case, which
is still active. Although the defendant was sentenced to life
in prison, he has filed numerous appeals, and just within the
past year there was another appeal that has delayed his parole
hearing. We have no idea what the appeal is about. We only know
that we had a parole hearing and it has been offset, and we are
scheduled to do another hearing.
So this has occurred throughout the time that he has been
sentenced. It has been a drag financially on both my family and
other victims who have to attend these hearings. We are not
notified when a hearing is going to occur. Whenever I am
notified, we just have to pack up. We are notified for the
parole hearing, but we are not notified when there are appeals,
and we are not notified when any other legal actions take
place. So it is a personal issue also, and it happens to many
victims across the country.
Mr. Franks. Yes, sir. Well, thank you.
Mr. Montgomery, in your written testimony you state that,
``Too often, the concern as to whether the rights of victims of
crime should be given the protection of our Constitution has
been premised on the false calculus that any rights accorded to
a crime victim must necessarily result in fewer rights for a
criminal defendant.''
Why will the protection of victims' rights not infringe on
the rights of criminal defendants?
Mr. Montgomery. The very simple answer, Mr. Chairman, is
that victims have the same interest in a just outcome as an
accused does. At the end of a particular case, you want to make
sure that you have the right person who committed the crime.
You want to make sure that they are sentenced to a just
sentence. You don't want to have to come back and do that
again. As Mr. Gillis just told the Committee and told the
Chair, victims want to be done with a case and know that it was
handled and the harm that was done has been addressed, and then
allow them to move on with their lives as best they can.
Additionally, I had to sit and listen with amusement to the
speeding ticket restitution example. You don't create a victim
when you are speeding, unless it is yourself because of the
fine you have to pay. Restitution is provided to a victim who
has been harmed by a criminal offense. If someone hurts
somebody as a result of speeding, they are usually charged with
aggravated assault. But unfortunately, these are the kinds of
examples that are offered, not from people who actually have
experience in advocating in court and dealing with the balance
between victim's rights and a defendant's rights that prove,
day in and day out, with the 35,000 felonies my jurisdiction
deals with, 100,000 misdemeanors on average, we do it every
day.
Mr. Franks. Yes, sir. Thank you.
Professor Mosteller, the right not to be excluded from
public proceedings relating to the offense is a critical
component of the Victims' Rights Amendment. Mr. Gillis
recounted that after a gang member murdered his daughter, he
and his family were relegated to a bench in the hallway of the
courtroom during the trial while the defendant's family and
friends were seated in the courtroom. Mr. Gillis and his family
endured ``sneers and jeers each time they walked past them.''
Why should crime victims be barred from having a
constitutional right to be present at a public trial?
Mr. Mosteller. Crime victims should not be barred except in
very, very, very rare cases. With respect to what the amendment
declares, it has a right to be present with respect to the bail
hearing----
Mr. Nadler. Can you turn on your mic, Professor?
Mr. Mosteller. I'm sorry. It has a right to be present
which affects public proceedings with respect to plea,
sentencing, and release. With respect to release, no issue
whatsoever. With respect to sentencing, other than capital
cases, no issue whatsoever. With respect to plea, no issue
whatsoever. The issues come when we are dealing with the trial
in front of the jury, and it is a situation that only involves
a problem if the victim is a witness. If there are multiple
victims and they can be present during the time the testimony
is being taken by one so that the other can hear, it suggests a
problem with respect to the fairness of the trial.
I am not inventing this problem by any means out of thin
air. We have basically the right with respect to the statute
that says the victim has a right to be present unless the judge
finds that there is going to be a material effect on the
testimony. Then the victim can be excluded. That is a statute
that the United States Congress passed. So it recognized in
writing, and it is one of the reasons there isn't a problem
with respect to the Crime Victims Act. That issue was the one
that was taken out of the picture.
With respect to sentencing in death penalty cases, Payne v.
Tennessee overruled Booth v. Maryland, but it did not overrule
Booth v. Maryland with respect to whether or not a victim has
the right to issue a conclusion with respect to the sentence.
This amendment may well change not only the right to be heard
but what you can say.
Mr. Franks. Thank you, sir.
I now recognize the Ranking Member for questions.
Mr. Nadler. Thank you, Mr. Chairman.
Before I begin, I want to thank Mr. Gillis for his
testimony. I think he expressed in the most eloquent way the
devastating and lasting impact that crime, especially crimes of
such unspeakable violence and cruelty, has on its victims. It
is a reminder of how important it is for all participants in
the criminal justice system, the courts, prosecutors, law
enforcement, Congress and state legislatures, to ensure that
the rights and needs of crime victims are both respected and
addressed, and I hope that this hearing will help us understand
how we can best improve these efforts.
Now, Professor Mosteller, other witnesses today have
argued, in the language of the amendment, that the rights of a
crime victim to fairness, respect and dignity, being capable of
protection without denying constitutional rights of the
accused, shall not be denied or abridged by the U.S. or any
state. Do we need to worry about such conflicts between the
rights of the accused and the rights conferred on victims in
this amendment despite that language? And if so, could you give
us some examples?
Mr. Mosteller. Yes, we do. With respect to two of those
rights, the right to respect and dignity, there is no conflict
whatsoever. With respect to matters like notice, there is no
effect whatsoever. But there is another word in it, and it is a
general word, and it is ``fairness.'' Fairness can also mean
due process. It says fairness, and then it says moreover, and
it lists other rights.
With respect to those other rights, I have spent some time
with respect to the presence at the proceeding, the presence at
the proceeding. In addition to that, the issue with respect to
a speedy trial, a speedy trial for the victim, against undue
delay. Most prosecutors, almost all prosecutors are trying to
move it forward, but there are people who behave badly. Mike
Nifong in the Duke lacrosse case behaved very badly. He delayed
discovery. You have an argument. It is unreasonable delay. The
constitutional amendment does not say unreasonable delay by the
defendant. It says unreasonable delay and that can compromised
by the prosecution as well. And I mentioned a third one----
Mr. Nadler. It could compromise the right of the accused to
a fair trial is what you are saying?
Mr. Mosteller. With respect to enough time to prepare
testimony. You can say this will be limited and it will be
rare, and I would acknowledge it. But you cannot say that there
is no danger.
Mr. Nadler. Thank you. Now, why would a court exclude a
victim from a courtroom under certain circumstances? Well, you
said if the victim is a witness, maybe multiple victims, to
have them in the courtroom might give an opportunity to
coordinate--alleged victims, because you could be wrong about
who is a victim. In the Duke case, for instance, you said that
had they all been present in the courtroom, they could have
coordinated their testimony?
Mr. Mosteller. Yes, and that would be the problem. And with
respect to the normal situation in which a victim is not a
witness, there should be no exclusion.
Mr. Nadler. Well, could a victim act in such a way as to
prejudice the jury other than that situation?
Mr. Mosteller. Absolutely.
Mr. Nadler. How so?
Mr. Mosteller. By excessive emotional outbursts. That is a
limitation upon the right even of the defendant to be present.
A defendant can be excluded. So these are common-sense
limitations.
Mr. Nadler. Now, a defendant has a constitutional right to
be present unless the judge chooses to exclude him because of
his conduct. Under this amendment, would the judge have the
discretion to exclude a victim or an alleged victim because of
his conduct?
Mr. Mosteller. I would hope so. It would suggest that, at
least as I read Mr. Montgomery's testimony, that that could not
even be an admonition to----
Mr. Nadler. I'm sorry. It was suggested it could or could
not?
Mr. Mosteller. Couldn't deny, that it shouldn't even be an
admonition, that you are not supposed to----
Mr. Nadler. So, in other words, the wording of this
amendment as it is worded might, in fact, in your judgment,
preclude the judge from excluding an alleged victim who was
behaving in a way that might prejudice the trial?
Mr. Mosteller. It could. I would hope that the reasonable
application would avoid that problem.
Mr. Nadler. But one doesn't know.
Mr. Mosteller. Pardon?
Mr. Nadler. But one doesn't know.
Mr. Mosteller. One doesn't know.
Mr. Nadler. Thank you. Now, Professor Beloof cites two
cases that seem relevant to the text of the proposed amendment.
The Antrobus this case involved a mass shooting in which the
victims were denied victim status by the court. In the murder
of border patrol agent Brian Terry, Professor Beloof states
that the Terry family was similarly denied victim status. In
both instances, Professor Beloof points out that the CVRA, that
is the Act, the Crime Victims' Rights Act, the definition of
victim ``depends on whether the harm was a direct and proximate
cause of the conduct.'' That is the same language used in the
text of the proposed amendment. Section 2 of the amendment
reads, ``A crime victim includes any person against whom the
criminal offense is committed or who is directly and
proximately harmed by the commission of an act which, if
committed by a competent adult, would constitute a crime.''
It seems to be exactly the same. So it seems that it
wouldn't solve the problem. Would you comment?
Mr. Mosteller. It wouldn't solve that problem, and, in
fact, this version added ``proximate cause.'' It did not exist
until this version. So if you went back to the version that was
in this chamber last year----
Mr. Nadler. But never mind last year's version. This
version?
Mr. Mosteller. This version has proximate cause and it. The
version last year did not have proximate cause in it. It makes
it just the same, and it does not guarantee any discovery right
or any other right that would eliminate the problem.
Mr. Nadler. Thank you.
My time has expired.
Mr. Franks. Thank you, and I will now recognize the
gentleman from Ohio for 5 minutes for questioning.
Mr. Chabot. Thank you very much, Mr. Chairman.
Professor Mosteller, let me start with you, if I can. In
the United States Constitution, there are a number of rights of
the criminal defendant which are stated very plainly, the right
to a jury trial, the right not to have to self-incriminate
himself or herself, and a number of other things, right in the
U.S. Constitution. Now, the innocent victim, the victim's
family, they may be protected by a state constitution or
perhaps a state statute, but not in the Constitution. That is
what the intention of this is, to put the two at least on an
equal footing.
We are talking about right now the criminal defendant who
has oftentimes taken away the loved one of a family, a person
who has done something clearly wrong, something heinous. They
are protected. They get the best protection possible from the
U.S. Constitution. The innocent victim, the person who hasn't
done anything wrong, and their family, no protection whatsoever
in the U.S. Constitution, I would argue an oversight. Great
document, an oversight there. The only way we can change that
is to amend it. Our founders put in there a mechanism for us to
do that. We have been trying to do it for years, and that is
what we are trying to do today.
Oftentimes, if the U.S. Constitution says one thing and a
state statute says something else, if there is a discrepancy,
and sometimes there is, the U.S. Constitution is going to trump
the state statute every time. A lot of us believe that is just
not fair. That is why we want to change this.
Would you disagree with anything I have said? And if so,
what?
Mr. Mosteller. I would disagree with your statement of
equalizing. The status of the criminal defendant, when he is
charged, and as justice Scalia said with respect to the
confrontation clause, you don't deny confrontation because you
think the testimony was reliable; you don't deny a fair trial,
a jury trial, because the judge decides that the defendant is
guilty. We do not know whether the defendant is guilty at that
moment.
Our framers set up a system in a situation in which the
full power of government comes down against a charged
defendant, suffering the possibility of his life or liberty
being destroyed, he is given process rights that lead to
fairness, that protect the individual----
Mr. Chabot. Reclaiming my time, as I have a limited amount
of time, let me turn to Professor Beloof, and also to Mr.
Montgomery. Would you like to respond to the question that I
asked? And perhaps, if you would like to, to the Professor's
answer?
Mr. Beloof. I agree with it. I agree with it, and I
disagree with much of what my colleague, Professor Mosteller,
says about the substantive issues of this amendment. I don't
believe the defendant's rights will be trampled in any way. The
idea that somehow victims attending trial will destroy
defendant's rights I disagree with.
First of all, there are police reports that lock down these
witnesses statements. There are grand jury testimony that locks
down these witness statements, leaving tremendous capacity for
defense attorneys to destroy the credibility of witnesses.
Moreover, witnesses in a trial, their attendance in a trial on
more than one occasion has revealed the testimony on the stand
is untrue. So barring witnesses from the courtroom actually
encourages the lack of truth telling.
So this is not a one-sided issue in any regard.
As to Professor Mosteller's testimony that this has dropped
a variety of things, this is in response to genuine and
considered criticism in the Senate that the last version looked
too much like a statute and not enough like a constitutional
amendment. So we focused on the core.
Mr. Chabot. Thank you. I am almost out of time. So, Mr.
Montgomery, instead of going to you, if I could go to Mr.
Gillis.
Again, we all feel great pain for what you and your family
have gone through, but let me ask you this. One of the great
injustices was the fact that you were unable to go in and see
what was going on, listen to what was going on, and your
daughter was taken from you, and the perpetrator and the
families in connection, gang members, were in there. You did
not get the opportunity to speak at a number of the proceedings
on behalf of, for example, sentencing and what you felt. What
would you have told the court had you been given the
opportunity to make a statement? What sort of input do you
think your daughter and yourself should have been able to give
the court?
Mr. Gillis. I think we could have talked about how it had
impacted the family. We could have also talked about what we
knew about the defendant from the community. But let me also
talk about us being barred from the court, having us sit in the
hallway because they thought that we could be possibly a
witness. It wasn't because we were a witness to anything. We
were not percipient witnesses to anything. So we just sat in
the hall because the defense did not want us in, and in most
cases I find, during my experience as a law enforcement officer
and the other experiences I have had with the criminal justice
system, the defense usually does not want the victim in court
because sometimes the victim has information that they can give
to the prosecutor that will help direct the case. So it is one
less individual that the defense has to worry about.
But most victims want to see the right person prosecuted
for the crime. They don't want to see somebody unjustly accused
or unjustly convicted of a crime. So keeping victims out of the
court, it just doesn't make sense.
Mr. Chabot. Thank you very much.
I yield back, Mr. Chairman.
Mr. Franks. Thank you, Mr. Chabot.
I would now yield to the gentleman from Virginia, Mr.
Scott, for 5 minutes.
Mr. Scott. Thank you.
Mr. Montgomery, we don't need a Federal constitutional
amendment to force you to treat people with dignity and
respect, do we?
Mr. Montgomery. Mr. Chairman, Mr. Scott, no, but I
understand what my oath is, and I understand what my duty is in
the criminal justice system. So it actually is a part of how I
carry forward my duties. But I would still say to that point,
the oath I took of office was to uphold the U.S. Constitution
and our state constitution and the laws thereof, and we do have
a victims' bill of rights in Arizona that requires me to treat
a victim with fairness, respect, and dignity.
But for those who didn't go through the victims' rights
seminar I went through, who don't have the same appreciation,
our criminal justice system does not institutionalize that kind
of treatment as much as we institutionalize the treatment of
defendants.
Mr. Scott. Well, is there a difference in how victims are
treated in states with a constitutional amendment and without a
constitutional amendment?
Mr. Montgomery. I believe that there is. If you are in a
state without a constitutional amendment, when it is convenient
to ignore a victim, when it is convenient to handle a case
without taking into account----
Mr. Scott. Well, exactly what happens----
Mr. Montgomery [continuing]. Whatever it is that they
regard, they do so.
Mr. Scott. And I am sure when you have a constitutional
amendment, some of the witnesses are ignored and disrespected.
What does the victim who is disrespected then do?
Mr. Montgomery. Well, within the State of Arizona and those
states that do provide the ability to appeal, that information
is brought to the attention of the court, and I can certainly
tell you----
Mr. Scott. Which court? The same court? This thing says any
court. I don't know what that means, you can enforce these
rights in any court. Does that limit it to the court that the
case is actually pending in, or can you go to another judge?
Mr. Montgomery. Mr. Scott, I think what you would do is you
would follow the same process that we follow in the United
States and in all courts where initially you bring it before
the court in which the incident or the matter is initially to
be heard and then follow the regular appellate process. That is
what we do in Arizona, and it works very well.
Mr. Scott. And is there any priority for those cases?
Mr. Montgomery. It depends. Within the Federal Crime
Victims' Rights Act, appellate courts, if the matter in
question is at a district court level, have to rule on a
mandamus quickly. In our state courts----
Mr. Scott. Does that take precedence over other pending
cases?
Mr. Montgomery. I believe that it does. They have to rule
on the mandamus quickly, and that is important. What we have to
keep in mind here is that we were talking about a criminal
justice system where we are trying to make sure that the truth-
seeking function is honored and that at the end of it a crime
victim, then, when communicating to other members of our
community, when communicating with their family members the
resolution of the case, can say, you know what, I got harmed,
and our criminal justice system took care of me, and it worked,
and it was good.
Mr. Scott. I am just trying to figure out how this thing
works, because if somebody doesn't think the prosecutor, the
case is going quickly enough, how do you ascertain the
reasonableness of a delay?
Mr. Montgomery. Sure. Mr. Scott, we have a very well-
developed body of jurisprudence on speedy trial rights for
defendants. The corollary to that, then, is in looking at
instances in which a victim might assert an unreasonable delay,
and I will give you a great example. I will contrast it, too.
In an instance in which a defense attorney has not been
able to complete interviews of witnesses and I have a victim
asking me when is this going to go to trial, and I have
personally prosecuted hundreds of cases, I will tell them our
trial date was originally set for June. However, there are five
more witnesses we need to interview, so we are going to have to
delay it to complete that. That sets a reasonable delay.
Mr. Scott. Well, that is reasonable in your mind. Suppose
it is not reasonable in the victim's mind, if they say why
don't you get to work and do the work and get it done?
Mr. Montgomery. Sure, and the victim can certainly bring
that to the court's attention, at which point----
Mr. Scott. Do they have a right to a hearing on that issue?
Mr. Montgomery. Oh, they have a right. When you are going
to have a court hearing at which a motion to continue is going
to be heard, because the defendant has a right to be there, a
victim in Arizona has a right to be there, and also has a right
to be heard on that point, and it happens all the time.
Mr. Scott. And what could be a perfunctory motion in
agreement with the defendant and the prosecutor now becomes a
full-blown hearing.
Mr. Montgomery. And there are times when search and seizure
issues are so apparent on their face, but we still give the
defendant their hearing. I don't think it is unreasonable at
all to give the victim of a crime 2 minutes to be heard on an
issue. But let me give you an example of an unreasonable delay.
Mr. Scott. Wait a minute. Why do you limit it to 2 minutes?
I mean----
Mr. Montgomery. It really doesn't take that much time.
Having practiced in court, like I said, over several hundred
felonies, it doesn't take much time to permit a victim to be
heard on the record. Five minutes isn't a whole lot of time,
either.
Mr. Scott. Do they get to bring witnesses on what's
reasonable? I mean, you are trying to determine whether a delay
is reasonable or not.
Mr. Montgomery. Sure. There is no need for witnesses. You
are talking about the conduct of the case. You have counsel for
each side there. You have the judge, who is sitting on the case
there. Here is an unreasonable delay, though, and I would say
this is why we need this in the Federal Constitution. In a
homicide case in which a young child was brutally murdered, the
defense attorney actually asked for a continuance for 3 weeks
so that she could go on her annual shopping trip to go buy
shoes. The only thing more offensive than someone trying to
delay it was the fact that the court granted it.
Mr. Scott. Well, perhaps the court could decide maybe you
have a problem getting your witness to court and you want to
delay. The defendant doesn't know why you want to delay. You
are just agreeing to a continuance. Do you have to articulate
in court that your witness is not available, or your evidence,
you have lost your evidence? Do you have to articulate that in
court so that the court could rule on whether or not the
continuance is reasonable or not?
Mr. Montgomery. Mr. Scott, if I lost evidence and I am
trying to delay a trial from starting, I believe I have
committed an ethical violation when I know I can't proceed. In
the instance of being able to try to find a witness----
Mr. Scott. Wait a minute. You are looking for the evidence.
Mr. Montgomery. Well, that is different than saying I lost
it.
Mr. Scott. Okay. Well, you don't have it, and you have to
articulate in open report, ``Your Honor, we are not ready
because we don't have enough evidence to proceed,'' and the
defendant ends up objecting to a continuance, so we are still
trying to find evidence. Do you have to articulate that in
court? I mean, the victim is saying let's go, let's go, and you
are in open court. They have a right to be there.
Mr. Montgomery. And I don't have a problem with that. If I
am going to tell the court, ``Judge, I am not ready for trial
today''--but the other thing to keep in mind is that most
states also have a last-day setting in which a defendant has to
be tried. If I am asking for a continuance and I am still
within what is known as a reasonable time, I have 150 days to
try a defendant of a felony who is in custody in Arizona. If I
am moving from the 120th day to the 149th day, I am still
within the timeframe to do it, and I am going to have a
conversation with the victim.
The victim in Arizona has the right to confer with the
prosecutor before the case gets resolved. I am talking to them.
I am letting them know what is going on. I am also talking to
the defense attorney.
Mr. Scott. And if they are not satisfied, do they have the
right to an appeal?
Mr. Montgomery. Yes, they can. They can assert their rights
in trial court and they can special action in Arizona those
rights to an appellate court, and this does happen on occasion.
There are times when I, as the elected prosecutor in Maricopa
County, will file an appeal on behalf of a crime victim to an
appellate court to advocate for their rights. I am no more able
to violate their constitutional rights in Arizona than I can a
defendant's constitutional rights, and we do it every day.
Mr. Franks. Without objection, the gentleman from New York
is granted 1 minute for questions.
Mr. Nadler. Thank you. I would like to ask Mr. Montgomery,
and ask Professor Mosteller to comment also. The amendment says
the crime victim shall have the right to various things and to
restitution. That is a very open concept. So my question is,
how would this work? What are the limits of it, if any? Who
enforces it? How do you measure the restitution? Who is
responsible for it? Let's assume that the culprit, the
defendant, is adjudged guilty, is destitute. And finally, let's
assume that the culprit goes to jail for 30 years or a long
period of time, and when he comes out, does he then owe $30,000
even though he has no money? I mean, how does this work?
Mr. Montgomery. Sure. I can offer our experience in
Arizona, where we do have a constitutional right to
restitution. At the conclusion of the case, the judge can enter
a criminal restitution order against the defendant, ordering
restitution for economic loss caused by the criminal conduct.
Mr. Nadler. Only economic loss?
Mr. Montgomery. It is economic loss, correct. So you look
at whether or not the victim lost work because they had to come
to court. Let's use an easy example of, say, an instance in
which maybe someone stole a victim's car and then crashed it.
They can get the replacement cost for that vehicle.
Mr. Nadler. We know how to measure economic loss.
Mr. Scott. Who pays it?
Mr. Nadler. Who pays it?
Mr. Montgomery. The person responsible. And in terms of
holding a defendant fully----
Mr. Nadler. Let's assume he doesn't have the means. Then
what?
Mr. Montgomery. Get to work.
Mr. Nadler. And if he goes to jail?
Mr. Montgomery. You should not be able to avoid
responsibility for your criminal conduct because you say you
don't have money. You had better get out there and work.
Mr. Nadler. And in a serious crime, you go to jail for 30
years. So do you delay the restitution for 30 years?
Mr. Montgomery. No. They get to work in prison, and from
their earnings, restitution is forwarded to the victim of
crime.
Mr. Franks. The gentleman's time has expired, but if he
wants to ask Professor Mosteller a question, then he can.
Mr. Mosteller. We don't know what it would mean in the
Federal Constitution. Words like this are unprecedented. ``To
restitution'' is different than it was in the previous version.
It used to be in one version ``to an order of restitution from
the convicted defendant.'' Is this a right to monetarily be
made whole by someone? And you have a constitutional right that
says ``to restitution.'' Eighty percent of the people are
indigent. What will it mean down the road? We don't have these
kinds of rights in our United States Constitution. They do
exist in some state constitutions, but it is unprecedented.
Mr. Nadler. It doesn't say just economic.
Mr. Franks. The gentleman's time has expired.
Mr. Mosteller. It does not say economic, and it does not
say from whom.
Mr. Franks. The gentleman's time has expired.
Mr. Nadler. Thank you.
Mr. Franks. I might make the observation that if someone is
to be held liable for economic loss, it probably should be the
convicted offender rather than the victim.
With that, this concludes today's hearing. I want to thank
all of the witnesses for attending. You have been very
responsive and very insightful.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
I thank the witnesses, and I thank the Members, and I thank
the audience for their attendance today.
And with that, this hearing is adjourned.
[Whereupon, at 12:43 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice
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