Supreme Court of Rhode Island

Frank Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

Joseph R. Weisberger

CHIEF JUSTICE

February 8, 2000

The Honorable Charles T. Canady, Chairman

The Honorable Melvin L, Watt, Ranking Member

Subcommittee on the Constitution

362 Ford House Office Building

Washington, D.C. 20510-6220

Re: House Joint Resolution 64, "Proposing an amendment

to the Constitution of the United States to protect the

rights of crime victims"

Dear Chairman Canady and Ranking Member Watt:

The Conference of Chief Justices (CCJ) has an ongoing Task Force on Victims' Rights, which I chair, to consider Congressional proposals to protect the rights of crime victims. On June 25, 1997, 1 testified on behalf of CCJ on H.J. Res. 71 and H.R. 1322 in the 105th Congress. We recently were informed that the Subcommittee on the Constitution would hold a hearing on H.J. Res. 64 on February 10, 2000. We would hope that you would enter this letter in the record of your hearing and consider our views as you process this legislation.

As we stated in 1997, CCJ is in favor of according the victims of crime all rights that are consistent with the paramount duty of insuring public safety by the prosecution of criminal offenders. CCJ applauds the noble goals of H.J. Res. 64 as we did its predecessor, H.J. 71. However, we remain concerned with the federalism issues presented in H.J. Res. 64.

The CCJ concurs with the recommendations of the U.S. Judicial Conference regarding a statutory alternative to this issue. In its most recent official position (statement of U.S. Chief Judge George P. Kazen before the Committee on the Judiciary of the House of Representatives, June 25, 2997), Chief Judge Kazen stated. "In the event that Congress chooses to affirmatively act on the issue of victims' rights, the Judicial Conference would strongly prefer that Congress pursue a statutory approach to this issue as opposed to a constitutional amendment." It is their and our position that a statutory provision enacted by Congress would give the federal judiciary a more measured opportunity to refine untested legal concepts and rights in order to develop a body of precedent that would pave the way for an eventual possible constitutional amendment. We understand that the U.S. Judicial Conference will reiterate that position at your hearing on February 10, 2000.

As you know, all states have some type of statutory guarantee for the protection of victims' rights, most of which have been enacted recently, At least 33 of the states also have constitutional provisions and these enactments provide victims with the opportunity to be heard at the various stages of criminal litigation, particularly at the point of sentencing and in respect to release on bail or on parole. More states are considering fewer constitutional changes. If the sponsors of H.J. Res. 64 are searching for a single settled law governing victims, the goal will not be achieved through a Federal Constitutional Amendment. Preempting each state's existing laws in favor of a broad Federal law will create additional complexities and unpredictability for litigation in both state and federal courts for years to come. We believe that the existing extensive state efforts provide a significantly more prudent and flexible approach for testing and refining the evolving legal concepts concerning victims' rights.

The Conference, also, cannot emphasize too strongly our great concern with creating the potential for extensive federal court surveillance of the day to day operations of state law enforcement operations in this area. It is almost a foregone conclusion that if a federal victims rights constitutional amendment is enacted, then there would be an increase in oversight by the lower federal courts of such issues as:

definition of who is a "victim";

a conflict between the right "to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime" and the common law rationale for witness sequestration;

the implications of the amendment for the numerous states where juvenile proceedings are kept confidential.

There are also numerous practical questions about the ancillary costs of a federal constitutional amendment for the state court systems. For instance, it is not clear which state entity would be responsible for the notice requirements proposed by H.J. Res. 64. An amendment also raises resource issues for states handling indigent crime victims and their need for court-appointed counsel. All of these issues eventually would involve increased conflicts between state and federal judiciaries similar to the habeas corpus litigation of the past.

Another grave concern of the Conference is that since damages against state and federal officials are prohibited under H.J. Res. 64, an alternative remedy for victims would be to seek injunctive relief against state officials in federal courts. This type of litigation is reminiscent of federal civil rights cases under 42 U.S.C. 1983 (See Pulliam v- Allen, 452 U.S. 522 (1984), which were only recently modified by Congress to limit abuses (Sec. 309 of S. 1887, P.L. 204-317).

In the event that the House of Representatives is determined to embark upon the process of a constitutional amendment, the CCJ would suggest that its provisions be applicable only to federal criminal proceedings. In this way experience would be gained within the federal judiciary concerning the identification of and solution to problems that would invariably arise.

We recognize that the present draft of the amendment pending before the House would be applicable both to the federal judiciary and to the states. Section 3 provides that "Congress shall have the power to enforce this article by appropriate legislation. Exceptions to the rights established by this article may be created only when necessary to achieve a compelling interest." We would urge your Subcommittee to review this section and allow the state legislatures to implement this article with respect to state proceedings. Such power is more appropriately exercised by state legislatures within their respective jurisdictions.

The Conference would further urge your Subcommittee to include language that would prohibit federal judicial oversight of the implementation of this article save by the Supreme Court of the United States through its discretionary review of state courts by writ of certiorari.

To summarize our comments, CCJ suggests, alternatively:

(1) that victims' rights be protected in the federal system by a statutory enactment;

(2) that if a constitutional amendment be proposed, it be applicable only to federal

judicial proceedings;

(3) if H.J. Res. 64 is to be proposed by Congress that implementation of the article be

enforced within the states only by state legislative action; and,

(4) that federal judicial oversight of interpretation of the article be limited to

discretionary review of the state court action by the U.S. Supreme Court by writ

of certiorari.

On behalf of the Conference of Chief Justices, I thank you for your consideration of the suggestions which are set forth in this letter. I would further volunteer myself and other members of the Conference of Chief Justices to be available to appear and testify at any further hearings conducted by your Subcommittee on this pending resolution.

Very truly yours,

Joseph R. Weisberger

Chief Justice Supreme Court of Rhode Island

Chairperson, CCJ Task Force on Victims' Rights

cc: Members, Committee on the Judiciary, U.S. House of Representatives

Chief Justice Norman Veasey, Supreme Court of Delaware, and

President of the Conference of Chief Justices

Chief Justice Thomas Moyer, Supreme Court of Ohio, and

Chair, CCJ/COSCA Government Affairs Committee

Honorable Roger Warren, President, NCSC