02/10/00 Committee on the Judiciary

TESTIMONY OF CONGRESSMAN JIM BARCIA

SUBCOMMITTEE ON THE CONSTITUTION

VICTIMS' RIGHTS CONSTITUTIONAL AMENDMENT

FEBRUARY 10, 2000

Mr. Chairman, distinguished members of the Committee, I want to thank you for the opportunity to share my thoughts with you this morning about this important legislation. Chairman Canady, I appreciate you calling this hearing and giving victims a forum to voice their concerns about the Constitution's silence on victims' rights.

I am very proud to be working together with Congressman Steve Chabot, Senator Jon Kyl, and Senator Dianne Feinstein to advance the cause of a Constitutional Amendment to ensure victims' rights in our criminal justice system.

I appreciate the willingness of Members on both sides of the aisle to work together to protect the rights of victims. This cooperation extends beyond the Members to their staffs as well. On that note, I would like to recognize the Majority Counsel, Jonathan Vogel, for his flexibility and willingness to accommodate our requests. I thank you.

I believe the measure before us this morning will change the current dynamics of our criminal justice system to one that is more fair to all parties, and not allow victims to be re-victimized by an unfair legal process.

Presently, the scales of justice are tilted against crime victims. For too long, victims of crime have gone unrecognized in criminal justice laws. Too often the victim is all but forgotten, left on the outside of the process looking in. This is not right and must be changed.

Victims should not occupy the fringes of our criminal justice process. They should have the right to be notified of, and not excluded from, any public proceedings relating to the crime committed against them. They should have the right to participate in parole or early release hearings. They should have the right to be notified when the perpetrator is released or escapes from custody. Their safety should be considered when the defendant might be released from custody.

The amendment before us is based on the fundamental principle that both victims of crime and accused criminals have rights in our criminal justice system. The rights of the defendant are clearly outlined in the Constitution. It is now time for the rights of victims to also be guaranteed by our Constitution.

I recognize that critics of this amendment may say that we are trying to take away the rights of the defendant, to throw our country back to the days when the defendant was guilty until proven innocent. Clearly, no one here today is advocating such a course.

What my colleagues and I are trying to accomplish with the Victim's Rights Constitutional Amendment is to ensure that when a judge has to balance the rights of the victim with the rights of the defendant, the scale is not tipped in favor of the defendant.

I have also heard critics of this legislation ask the questions, "Why does the Constitution need to be amended? Why can't a State Constitution address victims' rights?"

The answer to these questions is that when a judge is presented with a conflict between the rights of the victim and the rights of the defendant, the rights of the accused prevail. This is because rights guaranteed under the Constitution-the defendant's rights- take precedence over the rights of the victim, which are not universally and uniformly protected.

When a judge balances defendants' rights in the Federal Constitution against victims' rights in a state law, the victim always loses. Rights of the defendant, which are guaranteed under the Constitution, will always take precedence over the rights of victims which are not universally guaranteed.

To date, 32 states have passed some form of a Victims' Rights Amendment to their State Constitutions. Yet a National Institute of Justice study found that in these states only 60% of victims were notified when defendants were sentenced and less than 40% were notified of a defendant's pretrial release.

There are still far too many situations in which victims only learn that their perpetrator has been released by seeing them on the street. There are still too many situations where family members are not allowed in the courtroom during the trials of their loved ones' perpetrator. There are still too many situations where the stories of the victim go untold.

Like everyone in this room, I do not take amending the Constitution lightly. But I believe that only an amendment to the Constitution will bring an end to the suffering victims face at the hands of this process.

It was Supreme Court Justice Benjamin Cardozo, one of the preeminent judges of the first half of the twentieth century, who said:

"Justice, though due of the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."

As we enter the twenty-first century, we see the filament Justice Cardozo spoke of becoming increasingly thin. Our current system is not fair to victims and the time has come for us to enact a Constitutional amendment that will balance the scales of justice.

Before I conclude my testimony, let me say one more thing. John Walsh, a good friend and a strong advocate of victims' rights had planned to testify at today's hearing. However, he was unable to appear this morning. But this hearing would not be complete without referencing this remarkable man.

Many of you may know John from the crime fighting television show, America's Most Wanted. However, his incredibly successful career as a host of nationally televised program and as an advocate for victims' rights, was a career he never anticipated, or desired.

In the summer of 1981, John Walsh was a partner in a hotel management company in Hollywood, Florida. He was living the American dream. He and his wife, Reve, had a beautiful six-year-old son, Adam, the joy of their lives.

They never thought crime could touch them. But their joy was shattered on July 27^th, 1981, when Adam was abducted and later found murdered. The Walshs' never received closure to this horrible tragedy. The prime suspect in Adam's murder was never charged in the Adam Walsh case. He died in prison while serving a life sentence for other crimes, taking the truth to the grave with him.

Since that day, John has dedicated his life to advancing the cause of victims' rights and using his television program to help bring closure to the lives of many crime victims. If he were here today, I think there is one message he would want to reinforce and leave you with this morning:

Our nation was founded on the principles of equal protection under the law and equal justice for all. It is not until our Constitution specifically, expressly, and universally guarantees the rights of victims that the scales of justice will truly be balanced.