Essentially, this provision applies the amendment to all felony offenses and all violent misdemeanors. This comprises the vast majority of cases in the federal criminal justice system.

To put this sweeping proposal in perspective, more than 58,000 criminal cases were commenced in the federal courts during Fiscal Year 1999. Of this total, nearly 47,000 were felonies. Our statistics do not readily indicate how many of the more than 11,000 misdemeanors filed involved violence. Although the impact of this provision upon the federal courts would be substantial, that effect will pale by comparison to the impact it will have upon the states, where more than 14.6 million criminal actions were filed during 1998.

Closely associated with this issue is the question of what classes of persons will qualify as a "victim." We note that the proposed amendment includes no definition of victim. Must a person suffer direct physical harm to qualify as a victim? Or is it sufficient if the person has suffered pecuniary loss alone? What if the person is alleging solely emotional harm? Is that enough to qualify him or her as a victim? Are family members of a person injured by a crime also victims? What about close friends, employers, or business partners?

Suppose more than 1,000 people are defrauded as part of a fraudulent securities scheme, but the prosecutor chooses to prosecute just ten of these cases. Are the other 990 defrauded persons victims under the proposed amendment? Suppose an agreement is reached whereby the defendant agrees to plead guilty to just ten of the cases. Are the other 990 defrauded persons victims under these circumstances? Will our answer affect a prosecutor's ability to obtain plea agreements from defendants?

The effect of a potentially expansive definition of victim becomes particularly important in light of the broad classes of crimes to which the amendment applies. If the proposed amendment were limited to crimes of violence, the impact would be more manageable. Most crimes that can be classified as crimes of violence (excluding terrorist attacks) involve few victims (although in the state courts the number of these cases is quite large). However, H.J. Res. 64 appears intended to apply to all felonies, with potentially dramatic results.

For example, many districts in our country are currently handling large numbers of telemarketing fraud cases. Thousands of victims can be involved in a single case. The numbers of victims in a single environmental case could be even more extensive, particularly in the context of a toxic discharge into the air of a large metropolitan area or into the watershed of a heavily populated region. Providing the rights enumerated in the proposed amendment to large numbers of victims could overwhelm the criminal justice system's ability to perform its primary function of adjudicating guilt or innocence and punishing the guilty.

Extending the definition of victim to those who claim emotional harm from criminal offenses dramatically exacerbates the potential impact of this broad definition. The number of persons who could claim to be emotionally harmed by significant, well-publicized crimes could be quite large. Additionally, substantial litigation could result from the requirement of restitution, especially in cases involving non-economic injury.

We urge Congress to evaluate the potential extensive reach of this proposal and the inevitable costs and impact that it will have upon our criminal justice system. At a time when Congress is increasingly urging budgetary restraint, you may wish to consider narrowing the sweep of the amendment, dedicating scarce public resources to reach the victims of violent crimes, where the rationale for considered treatment of the victim is most compelling.

The application of the amendment to "any other crime that involves violence" is also problematic. It is unclear to what crimes this provision would apply. Even the term "crime of violence," which is much more commonly utilized in legal parlance, has many meanings under state and federal law. This problem is magnified by the fact that this provision applies to misdemeanor cases, the number of which is particularly large in the state courts. Failure to provide a clear and practical definition of this term will inevitably result in protracted and unnecessary litigation that will likely take years and great expense to resolve.

We suggest that the Committee consider modifying the proposed amendment to additionally prohibit a victim from challenging a "negotiated plea." Permitting the challenge of a proposed plea interferes with the prosecutor's ability to obtain convictions of defendants whose successful prosecution may rest on the cooperation of another defendant. Guilty pleas are sometimes also negotiated because the prosecution witnesses are, for various reasons, not as strong as they appear to be on paper. Also, the sheer volume of cases would generally overwhelm any prosecutor's office and the courts unless the vast majority were settled. Permitting challenge to a prosecutor's judgment regarding an accepted plea could lead inadvertently to a failure to secure a conviction. The significance of this issue should not be underestimated.

• Federalism

The matter of victim enforcement raises significant federalism concerns. While the proposed amendment includes provisions that bar monetary damages as a remedy, it appears that victims may be able to seek injunctive relief against state officials for violation of their new constitutional rights. Such claims, almost inevitably filed in federal courts, could cause significant federal court supervision of state criminal justice systems for the purpose of enforcing the amendment. These conflicts between federal courts and state governments would be avoided by a statutory approach to victims' rights.

Congress should consider modifying the proposed amendment to allow a judge, while recognizing the rights of the victims to the extent practicable, to provide for exceptions in individual cases when required for the orderly administration of justice. Congress may also wish to consider modifying the proposed amendment to additionally allow Congress to statutorily enact exceptions in "aid of the administration of justice." At the very least, Congress should provide an exception permitting the sequestration from trial proceedings of a victim who will appear as a witness at the guilt phase of the trial. This could be accomplished through a general provision in the proposed amendment stating that the victim's rights should not "interfere with the constitutional rights, including due process rights, of the person accused of committing the crime." It could also be accomplished through a more narrow provision, similar to that in the Wisconsin constitution, by the addition of a phrase allowing sequestration when "necessary to a fair trial for the defendant." Another approach, similar to that taken under the Constitution of Florida, would add a phrase allowing sequestration "to protect overriding interests that may be prejudiced by the presence of the victim."

• Speedy Trial Considerations

The proposed amendment includes a victim's right to "consideration of the interest of the victim that any trial be free from unreasonable delay." Determining the meaning of this phrase and how it interacts with existing speedy trial provisions should be a fertile source of diversionary litigation.

In federal court, the sixth amendment right to a speedy trial and the Speedy Trial Act, see 18 U.S.C. §§ 3161 - 3173, not only guarantee and explicate the defendant's right to a speedy trial, but also recognize the public's, and therefore the victim's, interest in swift justice. However, the Speedy Trial Act also recognizes several legitimate bases to postpone trial, including plea negotiations. See 18 U.S.C. §3161. This mechanism is an integral part of the criminal justice system, which balances the desirability of a speedy trial with the realistic requirements of a fair proceeding.

How is this right to consideration of the interest of the victim that any trial be free from unreasonable delay to be enforced? Will the victim have a right to seek relief from unreasonable delay? Such a right apparently presupposes that either the public prosecutor or the presiding judge, or perhaps both, are indifferent to a reasonably prompt disposition of the case. A motion to move the case faster would require a collateral hearing to determine the extent of the delay and whether it is unreasonable. The victim would then be in an adversarial position to the prosecutor and perhaps to the presiding judge. Would another judge be required to make the determination? Would a federal judge be asked to pass judgment on the efficiency of a state court?

With ever increasing criminal dockets and limited prosecutorial and judicial resources, victims in several cases on the same docket, clamoring for speedier proceedings, could potentially cause severe internal conflicts within units of the same court.

• Notice

It is important that the responsibility for providing notice of proceedings and of the release or escape of a defendant be appropriately allocated to the prosecution, law enforcement agencies, or corrections agencies as is the law and practice in virtually all the states providing for victims' rights. Many of the rights under the proposed amendment must attach long before a defendant is formally charged in court. The judiciary would not have access to much of the information necessary to provide the required notice. It has neither the personnel nor resources to provide such notice to thousands of victims or to provide the specialized types of victim assistance that is available from the first line of contact that victims have with the criminal justice system. The situation is likely no better -- and possibly worse -- in the state court systems.

Preference for a Statutory Alternative

If the Congress decides to affirmatively act in this area, the Judicial Conference strongly prefers a statutory approach as opposed to a constitutional amendment. A statutory approach would allow all participants in the federal criminal justice system to gain experience with the principles involved without taking the unusual step of amending our nation's fundamental legal charter, with its concomitant application to the various state systems. Many of the principles contemplated in H.J. Res. 64 represent a significant change in our criminal justice system, literally realigning the interests of defendants and victims, as well as the process by which criminal cases are adjudicated. The rights and protections heretofore afforded to citizens under the Constitution were largely part of the fabric of the law well-known and understood by the Founding Fathers, while many of the concepts in the victims' rights area are largely untested, at least in the federal system. It could conceivably take years for a settled body of law and judicial administration to evolve. A statutory approach would accommodate this process.

A statutory approach would also vitiate the potential specter of significant federal court involvement in the operations of the state criminal justice systems under a victims' rights constitutional amendment. Finally, a statutory approach is more certain and immediate, an advantage to victims. Conversely, a proposed amendment potentially would not be effective for many years, awaiting the lengthy, ponderous and uncertain ratification process required under Article V.

In closing, I would like to say that the members of the federal judiciary, like all Americans, share a profound concern for the victims of crime. Neither judges nor their loved ones are immune from the results of criminal activity. However, we believe that the interests of crime victims are best served by a system which will provide adequate protection for the rights of victims while balancing the need to ensure a fair trial for persons accused of a crime but who are presumed to be innocent. That is our goal. It is one we should share together.

We also believe that crime victims are not served when false expectations are raised by enactments that describe various rights but exclude any practical enforcement of those rights. However, if real enforcement mechanisms are provided, we risk creating a dual system of public and private prosecutors in the same proceeding who could well end up at cross purposes, thereby frustrating the original intent of the enactment. Finally, a constitutional amendment significantly affects our system of federalism. A federal constitutional right is necessarily enforceable in federal court. Federal judges would inevitably be asked to enforce the new federal right when it is allegedly not being honored in state court proceedings. Unlike post-conviction habeas review, enforcement of these victims' rights would have to occur during the pendency of the state court proceedings to have any meaning. The ramifications of this federal supervision should be carefully considered, especially since many in Congress have expressed deep concern over perceived federal judicial intervention in state governmental matters. If the response is that only state courts would be allowed to police state criminal proceedings with respect to the new federal constitutional right -- a novel solution -- one must then wonder what the purpose of the amendment is in the first place.

Once again, I thank you for the opportunity to appear before you today. I am prepared to respond to any questions you might have about this issue.