STATEMENT OF DOUGLAS E. BELOOF

BEFORE THE COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON THE CONSTITUTION

HOUSE OF REPRESENTATIVES

SUPPORTING THE CRIME VICTIM'S RIGHTS AMENDMENT

ON FEBRUARY 10, 2000

Mr. Chairman and Distinguished Members of the Committee, I am pleased to be here today to support the Crime Victim's Amendment to the Bill of Rights.

I am a law professor at Northwestern School of Law at Lewis & Clark College. I am also the Director of the Crime Victim Law Institute. I am a former prosecutor and former defense attorney. I have written the book, Victims in Criminal Procedure, a casebook for law students and presently the only comprehensive work in the field. Presently, I am working on a legal treatise of victim law, with Professor Paul Cassell. When complete, it will be the only treatise on the subject. The Senate Judiciary Committee Majority Report on the Crime Victim's Rights Amendment [herinafter "Amendment"] has referred to me as a leading authority on the subject of victim law.

In this era of strident partisan politics it is encouraging indeed that when it comes to fundamental rights, such as the modest but important rights set forth in the Amendment, that strong support can be found among Republicans and Democrats, liberals, conservatives and moderates alike. Senators as diverse as Jon Kyl (R) and Dianne Feinstein (D) are sponsors of the Senate's version of this bill. This diversity of support from the left and right exists in legal academia as well, with conservative Professor Paul Cassell of Utah and liberal Professor Laurence Tribe of Harvard joining together to testify in the Senate and write op-ed pieces in newspapers supporting the Amendment.

The Amendment itself is a product of much compromise in the Senate. As a result it embodies the minimum rights needed to ensure fairness to crime victims in the criminal process while preserving the rights of the criminal defendant. The crime victim rights set forth in the Amendment are limited and modest. The Amendment represents an extremely cautious approach to introducing crime victim rights into the Constitution. Nevertheless, the Amendment is not merely a symbolic document and the rights included are very important.

The process of amending the constitution is a majoritarian process, in the sense that it takes a super-majority of legislators to refer to the states and a super-majority of states to agree. All amendments enacted have had this quality of strong majoritarian support. The fact that a large majority consensus must exist to achieve amendment creates a paradox. The paradox is that while strong majority consensus is necessary to amend the constitution, this qualification itself leaves the Amendment open to the attack that the Amendment is unnecessary because the country already supports what is embodied in the Amendment. The paradox exists here because the proposed rights in this Amendment have strong support in many states. The support in the states is demonstrated in the chart in Appendix A to this testimony. The way out of the paradox is to answer this question: Does the nature of the rights and values expressed in the Amendment warrant placement in the Bill of Rights? The answer to this question is the essence of the matter before you today.

I suggest as your first priority you answer the question of whether the nature of the rights are such that they belong in the Bill of Rights. If you answer this question first, other questions answer themselves. By way of illustration we can use the example of the value of federalism. Should the value of federalism prevent you from passing the Amendment? First, answer the question about whether the nature of the rights are such that the nation should adopt them as a civil right properly attaching to American citizenship. If the answer is yes, federalism is not a central concern. In other words you can believe generally in federalism, or any other important value, and still support the Amendment once you identify the civil right as important enough to be included in the Bill of Rights.

I am completely persuaded that the nature of the rights in the Crime Victim's Amendment deserve constitutional status. The reasons that the rights in the Amendment deserve Constitutional status are:

(1) Victims are the person harmed by crime. As a result crime victims have a personal stake, or personal interest, in the case. This personal stake and the affront to crime victim dignity in denying the significance of this interest is significant enough to amend the Constitution to provide crime victims with basic rights;

(2) the history of crime victims in the criminal process in this country provides strong support for the amendment;

(3) every state has accepted as legitimate the concept of victim harm as a basis for victim rights

(4) the United States Supreme Court has already recognized victim harm as a legitimate concept in striking constitutional balances;

(5) the rights in the Amendment are, like other civil rights, rights against government;

(6) the rights embody fundamental fairness.

(7) victims will not be respected in the criminal process until the Amendment is passed.

First, and foremost, the reason why victims should have accommodations in the criminal process is because they are the person harmed. As the person harmed crime victims have a personal interest, or stake, in a criminal proceeding involving their own victimization that ordinary witnesses simply do not have. This assertion is so fundamentally true that I have never come across any coherent assertion to the contrary.

As a practical matter, there are two kinds of harm that crime victims suffer. The first is primary harm, which is the harm from the crime itself. The second kind of harm is harm from the operation of governmental processes. Both of these kinds of harm provide the basis for the Amendment. The primary harm, harm from the crime itself, is what distinguishes a crime victim from a witness. A crime victim has experienced a direct, personal harm, a witness has not. It is this primary harm that gives the victim a personal interest, or stake, in the criminal process. The

failure of the government's criminal procedures to acknowledge this personal interest, or stake, leads to a secondary harm to the victim.

This line of logic is already followed in cases of the Supreme Court of the United States which has used this logic on several occasions over the last two decades. In 1983, in Morris v. Slappy, the Court urged that "in the administration of justice the courts cannot ignore the interests of crime victims." In 1998, in Calderon v Thompson, the Court said, "Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the "powerful and legitimate interests in punishing the guilty," an interest shared by the State and the victim alike." Significantly, the Court's implicit acknowledgment and reliance upon secondary harm was made in Calderon without any legislative directive that secondary harm be considered in the relevant context. In 1991, in Payne v Tennessee, the Court acknowledged that crime harms unique individual human beings as well as society. The significance of these cases is that the Court acknowledges that victim harm can result from the operation, or more accurately mis-operation of the criminal process itself.

In supporting the Amendment, the Congress is basing its support on concepts not only familiar to the U.S. Supreme Court, but concepts embraced by the Court in several different constitutional criminal contexts. Because the Court has recognized these concepts of victim harm as legitimate, Congress may take comfort in the fact that by supporting the Amendment Congress does not risk introducing a novel concept into the Court's constitutional jurisprudence. By supporting the Amendment Congress merely recognizes a value that the Court itself has recognized, but which the Court cannot place in the Bill of Rights. Furthermore, the rationale of primary and secondary harm to crime victims has been embraced in every state in the country and the federal government by passing, to use but one example, laws allowing victim impact statements. A significant majority of states have acknowledged the values of dignity, respect and fairness to crime victims as a basis for modest victim rights in the criminal process. This state information is set out in detail in Appendix A, below.

That victims have a personal interest, or stake, in the case is a truth that has deep historical roots in our country. It is helpful to briefly examine the history because it supports the passage of the amendment. There is no question but that at the time of the framing of the Constitution crime victims were deeply involved in the criminal process. Recently, I have completed work on a history of victim's in the criminal courtroom, (working manuscript on file with author). It is apparent from this history that victims were considered parties to criminal proceedings in state courts well into the late 1800's and extending into the early 1900's. The complete elimination of victims, except as witnesses, from criminal proceedings in this country only came about in the 1900's. Exclusion of victims reached its zenith with the passage of Federal Rule of Evidence 315, passed in the 1970's, which banned victim-witnesses from the courtroom at the request of either party. For most of the history of the states victims had the ability to participate in the criminal process. Indeed an historical vestige of this ability is that in almost every jurisdiction in this country, including the federal courts, victims can privately retain attorneys to assist the public prosecutor. The point is that the framers of the Constitution passed the Bill of Rights in an era when victim participation in the criminal process was a fact. As a result it can be said with certainty that the rights of the criminal defendant were not originally intended to prevent the crime victim from involvement in the criminal process. Professor Tribe has independently made the same assessment that the amendment contains rights that "the Framers of the Constitution undoubtedly assumed would receive fuller protection than has turned out to be the case." Our assertions are further supported by the long history of victim participation in the criminal process subsequent to the enactment of the Constitution. Our country's history supports the idea that victims are harmed by crime and have a personal interest in the case that is greater than the interest of mere witnesses. It is important to note that the Amendment does not return us to the days of private prosecution, nor should it. But, history clearly supports the idea that the harm to crime victims is significant enough to provide them the minimal rights set forth in the Amendment.

Fundamental rights are typically rights against government. Rights which resemble due process rights, which are the type of rights embodied in the Crime Victim's Amendment, are particularly rights to prevent the government from establishing processes that deny fairness. In the words of Professor Tribe:

The rights in question - rights of crime victims not to be victimized yet again through the process by which governmental bodies and officials prosecute, punish and release the accused or convicted offender - are indisputably basic human rights against government, rights that any civilized system of justice would aspire to protect and strive never to violate. To protect these rights of victims does not entail constitutionalizing the rights of private citizens against other citizens; for it is not the private citizen accused of crime by state or federal authorities who is the source of of the violations that victim's rights advocates hope to address with a constitutional amendment in this area. Rather, it is the Governmental authorities themselves, those who pursue or release) the accused or convicted criminal with insufficient attention to the concerns of the victim, who are sometimes guilty of the kinds of violations that properly drawn amendment would prohibit.

Senator Biden has said, "I am now convinced that no potential conflict exists in the rights enumerated in the Amendment and any existing constitutional right afforded to defendants...."

This is consistent with the experience with victims rights provisions in the states. A recent summary of the available research on the purported conflict of rights found that victims' rights do not harm defendants:

Studies show that there "is virtually no evidence that the victims' participation is at the defendant's expense." For example, one study, with data from thirty-six states, found that victim-impact statutes resulted in only a negligible effect on sentence type and length. Moreover, judges interviewed in states with legislation granting right to the crime victim indicated that the balance was not improperly tipped in favor of the victim. One article studied victim participation in plea bargaining found that such involvement helped victims "without any significant detrimental impact to the interests of prosecutors and defendants." Another national study in states with victims' reforms concluded that: "Victim satisfaction with prosecutors and the criminal justice system was increased without infringing on the defendant's rights." [Richard Barajas & Scott Alexander Nelson, The Proposed Crime Victims' Federal Constitutional Amendment: Working Toward a Proper Balance, 49 Baylor L. Rev. 1, 18-19 (1987) (quoting Deborah P. Kelly, Have Victim Reforms Gone Too Far - or Not Far Enough?, 5 CRIM. JUST., Fall 1991, at 22; Sarah N. Welling, Victim Participation in Plea Bargains, 65 WASH. U.L.Q. 301, 355 (1987)).]

Concurring with Professor Tribe and Senator Biden, Professor Cassell, in his Senate testimony and in a persuasive article in the Utah Law Review, has effectively demonstrated that the Amendment does not negatively impact criminal defendant's rights, and that arguments to the contrary are far-fetched. I completely support the assessment of Professors Tribe and Cassell, as well as Senator Biden that the Amendment does not conflict with a defendant's constitutional rights. On other issues pertaining to this Amendment, Professors Tribe and Cassell have presented valuable testimony before the Senate. By reference to their testimony I make clear that I agree with the insight and analysis given before the Senate by these professors and strongly urge the House to obtain their Senate testimony.

The last point that needs to be emphasized is that victim's rights will never be fully respected until they are protected in the United States Constitution. The undeniable reality today is that, despite promises in victims enactments around the country, victims rights are far too often not actually afforded to victims. Numerous examples of violations of rights have been provided in previous hearing on this subject, both before the House Judiciary Committee and the Senate Judiciary Committee. These are not merely isolated examples. A comprehensive review of the issue was conducted by the United States Department of Justice. As reported by the Attomey General, the Department found that:

efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate. Victims' rights advocates have sought reforms at the state level for the past twenty years, and many states have responded with state statutes and constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to fully safeguard victims' rights. These significant state efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights.

The Attomey General's conclusions were supported by a lengthy report from the Office for Victims of Crime in the Department of Justice. The reported field concluded that "[a] victims' rights constitutional amendment is the only legal measure strong enough to rectify the current inconsistencies in victims' rights laws that vary significantly from jurisdiction to jurisdiction on the state and federal level."

The most thorough statistical research on the level of compliance with victims' rights fully confirms these general conclusions about inadequate protection. In 1998, the National Institute of Justice (NIJ) carefully investigated several states and found that numerous crime victims are denied their rights and concluded that "enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice." The report provided repeated illustrations of circumstances in which victims were not provided rights to which they were entitled. For example, even in several states that NIJ had identified as giving "strong protection" to victims rights, fewer than 60% of the victims were notified of the sentencing hearing and fewer than 40% were notified of the pretrial release of the defendant. A later, follow-up analysis of the same data found that victims who were racial minorities were disproportionately affected, and were less likely to be afforded their rights under the patchwork of existing statutes.

The reasons that victims rights are not fully respected is complex and multi-faceted. One clearly repeated theme that stands out from the research and victims report, however, is that today victims are essentially "second class citizens" in our nation's criminal justice system. While the defendant has constitutional rights protected in the United States Constitution, victims lack any recognition. As a result, victims simply lack the status - the legal recognition - that they need to insure that their rights are protected in the process

In conclusion, it is my opinion that this Amendment belongs in the Bill of Rights because of the nature and quality of the rights protected, because the Supreme Court has adopted the underlying rationale of victim harm in several modem cases, because the history of this country includes a long period when crime victims have had far greater participation in the criminal process than they presently have, because the Amendment has strong majority support in this country, because the rights in the Amendment do not compromise the rights of the criminal defendant, because the Amendment embodies rights which are the minimum accommodation our civilized nation should provide to individuals harmed by crime, and because without the Amendment victims will not be respected in the criminal justice process.

As Members of Congress you have the rare privilege of being able to refer this Amendment to the States. I strongly urge you to do so.