The Honorable Steve Chabot, Chairman
House Judiciary Sub-Committee on the Constitution
129 Cannon House Office Building
Washington, DC 20515-3501
The Honorable Jerrold Nadler
233 Rayburn House Office Building
Washington, DC 20515
May 9, 2002
OPPOSE: H.J. Res. 91, ""An Amendment to the Constitution of the United States to protect the rights of crime victims.""
Dear Representatives Chabot and Nadler:
We are writing in opposition to H.J. Res. 91, which Representative Chabot introduced on May 2 and which is scheduled for a sub-committee hearing today. Although worded differently, H.J. Res. 91 poses the same problems that amendments from previous Congresses have posed, most recently S.J. Res. 3 and H.J. Res. 64 in the 106th Congress. This amendment would fundamentally alter the nation's founding charter and would apply to every federal, state and local criminal case, profoundly compromising Bill of Rights' protections for accused persons.
H.J. Res. 91 would give rights to victims of violent crime such as: the right to notice of any public proceeding; the right not to be excluded from public proceedings; the right to be heard at release, plea, sentencing, pardon and reprieve hearings; an interest in avoiding unreasonable delay; and just and timely restitution. The Amendment also provides victims with the right to ""adjudicative decisions"" regarding victim's safety, speedy trial and restitution. Although ""adjudicative decisions"" is not defined in the bill, this phrase could be interpreted as providing victims with the right to a hearing.
Many of these provisions reflect laudable goals, but it is unnecessary to pass a constitutional amendment to achieve them. Every state has either a state constitutional amendment or statute protecting victims' rights and the proponents have not made the case that those measures fail to protect victims' interests. More importantly, providing these ""rights"" to victims will compromise the rights of the accused.
The amendment does not protect the rights of accused persons. Although the words of this amendment are different from previous versions of the Amendment introduced in earlier Congresses, the effect is the same. If passed, the Amendment would erode the presumption of innocence, erode the right to a fair trial, hamper the ability of law enforcement to effectively prosecute cases, discriminate between victims and impose legal liability on the states.
One of the primary concerns that opponents of the Amendment have raised is that it will erode the rights of accused persons. The victims' rights amendments of eight states expressly provide that nothing in the amendment may diminish the rights of the accused. Proposed H.J. Res. 91 does not, but oddly suggests that the rights of victims are ""capable of protection without denying the constitutional rights of those accused of victimizing them."" This clause constitutes more of an observation than a prohibition; nothing in its purports to prohibit any diminution of other rights, which have long existed under the Constitution. It would be the first time in our nation's history that the Constitution was amended in a manner that restricted rights of the accused.
In guaranteeing victims the ""right to adjudicative decisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender,"" the amendment commands, at the least, millions of new local court hearings every year, and potentially, widespread federal judicial interference with the decisions of local law enforcement, prosecution and corrections officials.
This is a new clause that has not been included in previous versions of the amendment. It is unclear what this phrase means, but at the least, it would appear to guarantee victims a right to a hearing on these issues. Previous amendments have given victims the right to be present and heard at all public proceedings - this version appears to go beyond the right to be present and be heard by also granting the right to a hearing. Serious questions are presented for all components of the system: Should a judge give greater weight to the victim's preference for speed or type of disposition than to the prosecutor's strategy? (This has been a leading concern of prosecutors in expressing opposition to the amendment - for example, in letters from former U.S. Deputy Attorney General Philip Heymann to Senator Kennedy on September 4, 1998, and from National District Attorneys Association President-elect William Murphy to Senator Moynihan on April 17, 2000.) Does the amendment require judges to make adjudicative decisions ordering police or corrections officials to take various steps to protect victims' safety, possibly trumping personnel or resource allocations they would otherwise have made? If the judge does not enter such an order, or the officials do not obey it, are they subject to an injunction or declaratory relief, plus fines for contempt? Must judges and probation officers go through restitution and fact-finding hearings to protect themselves against litigation, even where the defendant is indigent with no possibility of making payments?
The Constitution should only be amended when there are no other alternatives available. Since 1791, the Federal Constitution has been amended only 19 times. (Amendment XVIII established prohibition and Amendment XXI repealed it. Thus, only 17 amendments have been permanently added to the Constitution.) Amending the Constitution is a serious matter and should be reserved for those issues where there are no other alternatives available. H. J. Res. 91 does not meet this standard because there are other alternatives available to protect the interests of crime victims. Thirty-three states have passed victims' rights constitutional amendments and every state has either a state constitutional amendment or statute that protects victims' rights. Greater effort should be made to enforce already existing laws instead of amending the federal constitution.
The Victims' Rights Amendment erodes the presumption of innocence. The framers were aware of the enormous power of the government to deprive a person of life, liberty and property. The constitutional protections afforded the accused in criminal proceedings are among the most precious and essential liberties provided in the Constitution. The VRA undermines the presumption of innocence by conferring rights on the accuser, and potentially diminishing fundamental safeguards designed to protect against convicting the innocent.
Not every accused person is actually guilty. But giving the accuser the constitutional status of victim will impact the judge and jury, making it extraordinarily difficult for fact finders to remain unbiased when the ""victim"" is present at every court proceeding giving his or her opinion as to what should happen. The VRA makes the accuser a third party in the criminal case, before a judge or jury has determined that the accuser is actually a ""victim,"" that a crime was actually committed, or that the accused did it.
Many organizations that provide support to battered women are opposed to this amendment because battered women are often charged with crimes when they use force to defend themselves against their batterer. Under the VRA, the battering spouse is considered the ""victim"" and will have the constitutional right to have input into each stage of the proceeding from bail through parole. Why should a man who has spent years abusing his partner be given special constitutional rights?
The Amendment is likely to be counter-productive because it could hamper effective prosecutions and cripple law enforcement by placing enormous new burdens on state and federal law enforcement agencies. It is unclear how much weight judges will be required to give to the views of a crime victim if he or she objects to an action of the prosecutor or judge. For example, what if a victim opposes a negotiated plea agreement? Over 90 percent of all criminal cases do not go to trial but are resolved through negotiation. Even a small increase in the number of cases going to trial would burden prosecutors' offices. There are many reasons why prosecutors enter into plea agreements such as allocating scarce prosecutorial resources, concerns about weaknesses in the evidence, or strategic choices to gain the cooperation of one defendant to enhance the likelihood of convicting others. Prosecutorial discretion would be seriously compromised if crime victims could effectively obstruct plea agreements or require prosecutors to disclose weaknesses in their case in order to persuade a court to accept a plea. Ironically, this could backfire and result in the prosecution being unable to get a conviction against a guilty person - this would not serve society's or the victim's interests.
Similar problems could arise from the notice requirement. We do not oppose statutes that require states and the federal government to give notice to victims about key hearings, but we do oppose making this a constitutional requirement. What remedy will the victim have when the state inevitably fails to inform him or her of a proceeding?
Section three reads, ""'Nothing in this article shall be construed to provide grounds for a new trial or to authorize any claim for damages."" However, this still leaves open the possibility of seeking declaratory or injunctive relief against the judge, prosecutor or police when they fail to follow through with every requirement under the amendment. The remedy for violation of an injunction is a fine for contempt, which could be as substantial as damages, particularly considering the millions of cases and tens of millions of events triggering the amendment's rights every year. Presumably, victims would be entitled to bring suit under 42 U.S.C. sec. 1983. If the victim prevails under a 1983 claim, he is entitled to attorneys' fees, which are not considered damages.
One must also consider the Supreme Court's history of antipathy to constitutional rights without meaningful remedies. As the Court demonstrated by fashioning out of whole cloth a damages remedy for Fourth Amendment violations in the case of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), there are situations where damages are the only possible remedy - i.e., for property damage or physical injury directly occasioned by the violation. When cases start cropping up in which a victim is seriously injured or murdered as a direct result of a government official failing to give notice of a planned release or plea bargain, the Court will be powerfully motivated to fashion a monetary remedy - labeled something other than ""damages,"" to be sure - to ensure that victims' constitutional rights are not second-class constitutional rights.
It bears emphasis that the defendants in any such action for redress of a violation of victims' constitutional rights will be local government officials whose primary duties are the enforcement of the criminal laws or the custody and supervision of criminal offenders, including police, prosecutors, judges, corrections, probation and parole offenders, and even victims services agencies. Whatever time they take defending such litigation will be time away from their primary responsibility to promote public safety. Whatever money paid as a result of the litigation - whether in attorneys' fees, fines, or an alternative form of ""damages"" - will come from taxpayers, reducing accounts otherwise dedicated to public safety.
Section three of S.J. Res. 91 may also authorize appointment of counsel for victims. The section reads, ""Only the victim or the victim's lawful representative may assert the rights established by this article."" The term ""lawful representative"" is undefined, and could be interpreted as meaning an attorney. If victims are entitled to have attorneys represent them, then in order to make this right meaningful the state will have to subsidize the cost of attorneys for those who cannot afford to hire their own.
State and federal criminal justice systems are in crisis because they are unable or unwilling to provide adequate counsel for indigent accused persons. The additional cost of providing counsel to victims as well as defendants in criminal cases would be prohibitively expensive. Adding the financial burden of providing counsel to victims will likely further limit defendants' access to counsel as well as pose a major conflict of interest. If this happens, it will tax an already severely overtaxed system, make it less likely for accused persons to retain adequate counsel, and therefore, increase the likelihood of wrongful conviction.
The VRA poses more problems than solutions. Apart from the serious constitutional problems this amendment raises, there are many practical problems that the VRA will create. Who is a victim? The amendment does not define this and it is quite possible that in any one case there would be multiple victims with competing interests. In a homicide case, a child of the victim and the parent of the victim may disagree on how the government should handle the case. Whose opinion prevails? What if the victim changes his or her mind during the course of the case? This happens frequently in death penalty cases where the victim initially wants the government to seek the death penalty and then changes his or her mind before the case is concluded? And what about the fact that the amendment only covers victims of ""violent"" crime? This means that a person who has been the victim of a misdemeanor assault would have constitutional rights, but not an elderly widow who has been swindled out of her life savings. It also means that victims in different states will be treated differently because each state has its own laws defining crimes of violence and property crimes. Some states consider burglary a crime of violence, while others consider it a property crime. Persons in adjoining states might have different rights under the federal constitution. This would create serious equal protection problems.
A constitutional amendment is not the solution. Crime victims deserve protection, but a victims' rights constitutional amendment is not the way to do it. H.J. Res. 91 unnecessarily amends the federal constitution, places inflexible mandates on states, may hinder prosecution of criminal cases and threatens the rights of the accused. We urge you to oppose this amendment.
Thank you very much for your attention to this important issue.
Sincerely,
Professor Richard L. Abel
Connell Professor of Law
University of California at Los Angeles
Arwen Bird, Director
Survivors Advocating for an Effective System
Wade Henderson, Executive Director
Leadership Conference on Civil Rights
David Kopel
Independence Institute*
Professor Robert Mosteller
Chadwick Professor of Law
Duke Law School
Laura Murphy, Director
Washington National Office
American Civil Liberties Union
Erwin Schwartz, President
National Association of Criminal Defense Lawyers
Scott Wallace, Director
Defender Legal Services
National Legal Aid and Defender Association
*For Identification Purposes Only
Cc: Members of the House Judiciary Committee
Sub-Committee on the Constitution