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MARCH 24, 1999

Mr. Chairman and Distinguished Members of the Committee, I am pleased to be here today.

I am a Professor of Law at the University of Utah College of Law, where I teach a course devoted exclusively to the rights of crime victims. I have represented crime victims (always on a pro bono basis) on a number of legal issues and written and lectured on the subjects of crime victims rights, as explained at greater length in my attached biography. I serve on the executive board of the National Victim Constitutional Amendment Network, an organization devoted to bringing constitutional protection to crime victims across the country.

I have previously provided extensive testimony to this Committee supporting the Crime Victims' Rights Amendment.[1] I will not reiterate all that I have said there, but did want to briefly note that a strong national consensus appears to be developing that the rights of crime victims deserve protection and that a federal constitutional amendment is the only way to fully guarantee that protection. A substantial majority of the states have passed amendments to their own state constitutions protecting victims' rights and more amendments are passed at every national election. The amendments provide strong evidence that the citizens of this country believe that victims should be respected in the criminal process.

Unfortunately, however, the state amendments and related federal and state legislation are generally recognized by those who have carefully studied the issue to have been insufficient to fully protect the rights of crime victims. The United States Department of Justice has concluded that current protection of victims is inadequate, and will remain inadequate until a federal constitutional amendment is in place. As the Attorney General explained:

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 20 years . . . . 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.[2]

A number of legal commentators have reached similar conclusions. For example, Harvard Law Professor Laurence Tribe has explained that the existing statutes and state amendments "are likely, as experience to date sadly shows, to provide too little real protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia, or any mention of an accused's rights regardless of whether those rights are genuinely threatened."[3] Similarly, Texas Court of Appeals Justice Richard Barajas has explained that "[i]t is apparent . . . that state constitutional amendments alone cannot adequately address the needs of crime victims."[4]

That only a federal amendment will protect victims is the view of those in perhaps the best position to know: crime victims and their advocates. The Department of Justice recently convened a meeting of those active in the field, including crime victims, representatives from national victim advocacy and service organization, criminal justice practitioners, allied professionals, and many others. Their report - published by the Office for Victims of Crime and entitled "New Directions from the Field: Victims' Rights and Services for the 21st Century" - concluded that "[t]he U.S. Constitution should be amended to guarantee fundamental rights for victims of crime."[5] The report went on to explain,

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 levels . . . . Today, many victims do not report crime or participate in the criminal justice system for a variety of reasons, including fear of revictimization by the system and retaliation by the offender. Victims will gain confidence in the system if their rights are recognized and enforced, their concerns for safety are given serious consideration, and they are treated with dignity and respect.[6]

These impressionist conclusions find strong support in a December, 1998 report from the National Institute of Justice (NIJ) finding that many victims are denied their rights and concluding that "enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims' rights in practice."[7] The report found numerous examples of victims not provided rights to which they were entitled. For example, even in several states 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.[8] A follow-up analysis of the same data found that racial minorities are less likely to be afforded their rights under the patchwork of existing statutes.[9]

For reasons such as these, the Victims Rights Amendment has attracted considerable bi-partisan support, as evidenced by its endorsement by the President[10] and strong approval in this Committee at the end of the 104th Congress.[11] Based on this vote, the widely-respected Congressional Quarterly has identified the Amendment as perhaps "the pending constitutional amendment with the best chance of being approved by Congress in the foreseeable future."[12]

As the Victims' Rights Amendment has moved closer to passage, defenders of the old order have manned[13] the barricades against its adoption. In Congress, the popular press, and the law reviews, they have raised a series of philosophical and practical objections to protecting victims' rights in the Constitution. These objections run the gamut, from the structural (the Amendment will "change[] basic principles that have been followed throughout American history"[14]) to the pragmatic (it will "lay waste to our criminal justice system."[15]) to the esthetic (it will "trivialize" the Constitution[16]). In some sense, such objections are predictable. The prosecutors, defense attorneys, and judges who labor daily in the criminal justice vineyards have long struggled to hold the balance true between the state and the defendant. To suddenly find third parties - no, third persons who are not even parties - threatening to storm the courthouse gates provokes, at least from some, an understandable defensiveness. If nothing else, victims promise to complicate life in the criminal justice system. But more fundamentally, if these victim pleas for recognition are legitimate, what does that say about how the system has treated them for so many years?

My aim here focus on how victims' rights would specifically operate under the Victims Rights Amendment. In particular, my testimony analyzes the objections that the Amendment's opponents have raised.[17] It should come as no great surprise that claims the Amendment simultaneously would "change basic principles that have been followed throughout American history," "lay waste to our criminal justice system," and - for good measure - "trivialize" the Constitution" are not all true. My testimony attempts to demonstrate that, in fact, none of these contradictory assertions is supported. A fair-minded look at the Amendment confirms that it will not "lay waste" to the system, but instead will build upon and improve it - retaining protection for the legitimate interests of prosecutors and defendants, while adding recognition of equally powerful interests of crime victims.

The objections to the Victims' Rights Amendment conveniently divide into three categories, which this testimony analyzes in turn. Part I reviews normative objections to the Amendment - that is, objections to the desirability of the rights. The Part begins by reviewing the defendant- oriented objections leveled against a few of the rights, specifically the victim's right to heard at sentencing, the victim's right to be present at trial, and the victim's right to a trial free from unreasonable delay. These objections lack merit. Part I concludes by refuting the prosecution- oriented objections to victims' rights, which revolve primarily around alleged excessive consumption of scarce criminal justice resources. These claims, however, are inconsistent with the available empirical evidence on the cost of victims rights regimes in the states.

Next, Part II considers what might be styled as justification challenges - challenges that a victims' amendment is unjustified because victims already receive rights under the existing amalgam of state constitutional and statutory provisions. This claim of an "unnecessary" amendment[18] misconceives the undeniable practical problems that victims face in attempting to secure their rights without federal constitutional protection.

Part III then turns to structural objections to the Amendment - claims that victims' rights are not properly constitutionalized. Contrary to this view, protection of the rights of citizens to participate in governmental processes is a subject long recognized as an appropriate one for a constitutional amendment. Moreover, constitutional protection for victims also can be crafted in ways that are sufficiently flexible to accommodate varying circumstances and varying criminal justice systems from state to state.

Finally, concludes by examining the nature of the opposition to the Victims' Rights Amendment. Victims are not barbarians seeking to dismantle the pillars of wisdom from previous ages. Rather, they are citizens whose legitimate interests require recognition in any proper system of criminal justice. The Victims' Rights Amendment therefore deserves this Committee's full support.

I. Normative Challenges.

The most basic level at which the Victims Rights' Amendment could be disputed is the normative one: victims' rights are simply undesirable. Few of the objections to the Amendment, however, start from this premise. Instead, the vast bulk of the opponents flatly concedes the vitality of victim participation in the criminal justice system. For example, the senators on this Committee who dissented from supporting the Amendment[19] began by agreeing that "[t]he treatment of crime victims certainly is of central importance to a civilized society, and we must never simply `pass by on the other side.'"[20] Additionally, various law professors who sent a letter to Congress opposing the Amendment similarly begin by explaining that they "commend and share the desire to help crime victims"and that "[c]rime victims deserve protection . . . ."[21]

The principal critics of the Amendment agree not only with the general sentiments of victims' rights advocates but also with many of their specific policy proposals. Strong evidence of this agreement comes from the federal statute proposed by the dissenting members of this Committee, which would extend to victims in the federal system most of the same rights provided in the Amendment.[22] Other critics, too, have suggested protection for victims in statutory rather than constitutional terms.[23] In parsing through the relevant congressional hearings and academic literature, many of the important provisions of the Amendment appear to garner wide acceptance. Few disagree, for example, that victims of violent crime should receive notice that the offender has escaped from custody and should receive restitution from an offender. What is most striking, then, about debates over the Amendment is not the scattered points of disagreement, but rather the abundant points of agreement.[24] This harmony suggests that the Amendment satisfies a basic requirement for a constitutional amendment - that it reflect values widely shared throughout society. There is, to be sure, normative disagreement about some of the proposed provisions in the Amendment, disagreements analyzed below. But the natural tendency to focus on points of conflict should not obscure the substantial points of widespread agreement.

While near consensus has been reached on the desirability of many of the values reflected in the Amendment, critics dispute a few rights are disputed on grounds that can be conveniently divided into two groups. Some rights are challenged as unfairly harming defendants' interests in the process, others as harming prosecutors'. That the Amendment has drawn fire from some on both sides might suggest that it has things about right in the middle. Contrary to these criticisms, however, the Amendment does not harm the legitimate interests of either side.

A. Defendant-Oriented Challenges to Victims' Rights

Perhaps the most frequently-repeatedly claim against the Amendment is that it would harm defendants' rights. Often this claim is made in general terms, relying on little more than the reflexive view that anything good for victims must be bad for defendants. But, as the general consensus favoring victims' rights suggests, rights for victims need not come at the expense of defendants. Strong supporters of defendants' rights agree. Professor Laurence Tribe, for example, has concluded that the proposed Amendment is "a carefully crafted measure, adding victims' rights that can coexist side by side with defendant's."[25] Similarly, Senator Joseph Biden agrees that "I am now convinced that no potential conflict exists between the victims' rights enumerated in the [proposed Amendment] and any existing constitution right afforded to defendants."[26] A recent summary of the available research on the purported conflict of rights supports these views, finding 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."[27]

Given these empirical findings, it should come as no surprise that claims that the Amendment would injure defendants rest on a predicted parade of horribles, not any real world experience. Yet the experience suggests that the parade will never materialize, particularly given the redrafting of the proposed amendment to narrow some of the rights it extends.[28] A careful examination of the most-often advanced claims of conflict with defendants' legitimate interests reveals that any purported conflict is illusory.[29]

1. The right to be heard.

Some opponents of the Amendment object that the victim's right to heard will interfere with a defendant's efforts to mount a defense. At least some of these objections appear to misunderstand the scope of the Amendment. For example, to prove that a victim's right to be heard is undesirable, objectors sometimes claim (as was done in the minority report of this Committee) that the proposed Amendment "gives victims a constitutional right to be heard, if present, and to submit a statement at all stages of the criminal proceeding."[30] From this premise, the objectors then postulate that the Amendment would make it "much more difficult for judges to limit testimony by victims at trial" and elsewhere to the detriment of defendants.[31] Yet, far from extending victims the right to be heard at "all" stages of a criminal case including the trial, the Amendment explicitly limits the right to public "proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence . . . ."[32] At these three kinds of hearings - bail, plea, and sentencing - victims have compelling reasons to be heard and can be heard without adversely affecting defendant's rights.

Proof that victims can properly be heard at these points comes from a legislative proposal by several dissenting members of this Committee. While criticizing the right to be heard in the constitutional amendment, these senators simultaneously sponsored federal legislation to extend to victims in the federal system precisely the same rights.[33] They urged their colleagues to pass their statute in lieu of the Amendment because "our bill provides the very same rights to victims as the proposed constitutional amendment . . . ."[34] In defending their bill, they saw no difficulty with giving victims a chance to be heard,[35] a right that already exists in many states.[36]

A more detailed critique of the victim's right to be heard is found in a recent prominent article by Professor Susan Bandes.[37] Like most other opponents of the Amendment, she concentrates her intellectual fire on the victims' right to be heard at sentencing, arguing that victim impact statements are inappropriate narratives to introduce in capital sentencing proceedings. While rich in insights about the implications of "outsider narratives," the article provides no general basis for objecting to a victim's right to be heard at sentencing. Her criticism of victim impact statements is limited to capital cases, a tiny fraction of all criminal trials.[38]

Professor Bandes' objection is important to consider carefully because it presents one of the most thoughtfully developed cases against victim impact statements.[39] Her case, however, is ultimately unpersuasive. She agrees that capital sentencing decisions ought to rest, at least in part, on the harm caused by murderers. She explains that, in determining which murderers should receive the death penalty, society's "gaze ought to be carefully fixed on the harm they have caused and their moral culpability for that harm . . . ."[40] Bandes then contends that victim impact statements divert sentencers from that inquiry to "irrelevant fortuities" about the victims and their families.[41] But in moving on to this point, she apparently assumes that a judge or jury can comprehend the full harm caused by a murder without hearing testimony from the surviving family members. That assumption is simply unsupportable. Any reader who disagrees with me should take a simple test. Read an actual victim impact statement from a homicide case all the way through and see if you truly learn nothing new about the enormity of the loss caused by a homicide. Sadly, the reader will have no shortage of such victim impact statements to choose from. Actual impact statements from court proceedings are accessible in various places.[42] Other examples can be found in moving accounts written by family members who have lost a loved one to a murder. A powerful example is the collection of statements from families devastated by the Oklahoma City bombing collected in Marsha Kight's affecting Forever Changed: Remembering Oklahoma City April 19, 1995.[43] Kight's compelling book is not unique, as equally powerful accounts from the family of Ron Goldman,[44] children of Oklahoma City,[45] Alice Kaminsky,[46] George Lardner Jr.,[47] Dorris Porch and Rebeca Easley,[48] Mike Reynolds,[49] Deborah Spungen,[50] John Walsh,[51] and Marvin Weinstein[52] make all too painfully clear. Intimate third party accounts offer similar insights about the generally unrecognized yet far- ranging consequences of homicide.[53]

Professor Bandes acknowledges the power of hearing from victims' families. Indeed, in a commendable willingness to present victim statements with all their force, she begins her article by quoting from victim impact statement at issue in Payne v. Tennessee, a statement from Mary Zvolanek about her daughter's and granddaughter's deaths and their effect on her three-year- old grandson:

He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.[54]

Bandes quite accurately observes that the statement is "heartbreaking" and "[o]n paper, it is nearly unbearable to read."[55] She goes on to argue that such statements are "prejudicial and inflammatory" and "overwhelm the jury with feelings of outrage."[56] In my judgment, Bandes fails here to distinguish sufficiently between prejudice and unfair prejudice from a victim's statement. It is a commonplace of evidence law that a litigant is not entitled to exclude harmful evidence, but only unfairly harmful evidence.[57] Bandes appears to believe that a sentence imposed following a victim impact statement rests on unjustified prejudice; alternatively, one might conclude simply that the sentence rests on a fuller understanding of all of the murder's harmful ramifications. Why is "heartbreaking" and "nearly unbearable to read" about what it is like for a three-year-old to witness the murder of his mother and his two-year-old sister? The answer, judging from why my heart broke as I read the passage, it that we can no longer treat the crime as some abstract event. In other words, we begin to realize the nearly unbearable heartbreak - that is, the actual and total harm - that the murderer inflicted.[58] Such a realization may hamper a defendant's efforts to escape a capital sentence. But given that loss is a proper consideration for the jury, the statement is not unfairly detrimental to the defendant. Indeed, to conceal such evidence from the jury may leave them with a distorted, minimized view of the impact of the crime.[59] Victim impact statements are thus easily justified because they provide the jury with a full picture of the murder's consequences.[60]

Bandes also contends that impact statements "may completely block" the ability of the jury to consider mitigation evidence.[61] It is hard to assess this essentially empirical assertion, because Bandes does not present direct empirical support.[62] Clearly many juries decline to return death sentences even when presented with powerful victim impact testimony, with Terry Nichols' life sentence for conspiring to set the Oklahoma City bomb a prominent example. Indeed, one recent empirical study of decisions from jurors who actually served in capital cases found that facts about adult victims "made little difference" in death penalty decisions.[63] A case might be crafted from the available national data that Supreme Court decisions on victim impact testimony did, at the margin, alter some cases. It is arguable that the number of death sentences imposed in this country fell after the Supreme Court prohibited use of victim impact statements in 1987[64] and then rose when the Court reve0rsed itself a few years later.[65] This conclusion, however, is far from clear[66] and, in any event, the likelihood of a death sentence would be, at most, marginal. The empirical evidence in non-capital cases also finds little effect on sentence severity. For example, a study in California found that "[t]he right to allocution at sentence has had little net effect . . . on sentences in general."[67] A study in New York similarly reported "no support for those who argue against [victim impact] statements on the grounds that their use places defendants in jeopardy."[68] A recent comprehensive review of all of the available evidence in this country and elsewhere by a careful scholar concludes "sentence severity has not increased following the passage of [victim impact] legislation."[69] It is thus unclear why we should credit Bandes' assertion that victim impact statements seriously hamper the defense of capital defendants.

Even if such an impact on capital sentences were proven, it would be susceptible to the reasonable interpretation that victim testimony did not "block" jury understanding, but rather presented information about the full horror of the murder or put in context mitigating evidence of the defendant. Professor David Friedman has suggested this conclusion, observing that "[i]f the legal rules present the defendant as a living, breathing human being with loving parents weeping on the witness stand, while presenting the victim as a shadowy abstraction, the result will be to overstate, in the minds of the jury, the cost of capital punishment relative to the benefit."[70] Correcting this misimpression is not distorting the decision-making process, but eliminating a distortion that would otherwise occur.[71] This interpretation meshes with empirical studies in non-capital cases suggesting that, if a victim impact statement makes a difference in punishment, the description of the harm sustained by the victims is the crucial factor.[72] The studies thus indicate that the general tendency of victim impact evidence is to enhance sentence accuracy and proportionality rather than increase sentence punitiveness.[73]

Finally, Bandes and other critics argue that victim impact statements result in unequal justice.[74] Justice Powell made this claim in his since- overturned decision in Booth v. Maryland, arguing that "in some cases the victim will not leave behind a family, or the family members may be less articulate in describing their feelings even though their sense of loss is equally severe."[75] This kind of difference, however, is hardly unique to victim impact evidence.[76] To provide one obvious example, current rulings from the Court invite defense mitigation evidence from a defendant's family and friends, despite the fact the some defendants may have more or less articulate acquaintances. In Payne, for example, the defendant's parents testified that he was "a good son" and his girlfriend testified that he "was affectionate, caring, and kind to her children."[77] In another case, a defendant introduced evidence of having won a dance choreography award while in prison.[78] Surely this kind of testimony, no less than victim impact statements, can vary in persuasiveness in ways not directly connected to a defendant's culpability.[79] Yet it is routinely allowed. One obvious reason is that if varying persuasiveness were grounds for an inequality attack, then it is hard to see how the criminal justice system could survive at all. Justice White's powerful dissenting argument in Booth went unanswered, and remains unanswerable: "No two prosecutors have exactly the same ability to present their arguments to the jury; no two witnesses have exactly the same ability to communicate the facts; but there is no requirement . . . the evidence and argument be reduced to the lowest common denominator."[80]

Given that our current system allows almost unlimited mitigation evidence on the part of the defendant, an argument for equal justice requires, if anything, that victim statements be allowed. Equality demands fairness not only between cases, but also within cases.[81] Victims and the public generally perceive great unfairness in a sentencing system with "one side muted."[82] The Tennessee Supreme Court stated the point bluntly in its decision in Payne, explaining that "[i]t is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant . . . . without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims."[83] With simplicity but haunting eloquence, a father whose ten- year-old daughter Staci was murdered, made the same point. Before the sentencing phase began, Marvin Weinstein asked the prosecutor to speak to the jury because the defendant's mother would have the chance to do so. The prosecutor replied that Florida law did not permit this. Here was Weinstein's response to the prosecutor:

What? I'm not getting a chance to talk to the jury? He's not a defendant anymore. He's a murderer! A convicted murderer! The jury's made its decision. . . . His mother's had her chance all through the trial to set there and let the jury see her cry for him while I was barred.[84] . . . Now she's getting another chance? Now she's going to sit there in that witness chair and cry for her son, that murderer, that murderer who killed my little girl! Who will cry for Staci? Tell me that, who will cry for Staci?[85]

There is no good answer to this question,[86] a fact that has led to a change in the law in Florida and, indeed, all around the country. Today the laws of the overwhelming majority of states admit victim impact statements in capital and other cases.[87] These prevailing views lend strong support to the conclusion that equal justice demands the inclusion of victim impact statements, not their exclusion.

These arguments sufficiently dispose of the critics' main contentions.[88] Nonetheless, it is important to underscore that the critics generally fail to grapple with one of the strongest justifications for admitting victim impact statements: avoiding additional trauma to the victim. For all the fairness reasons just explained, gross disparity between defendants' and victims' rights to allocute at sentencing creates the risk of serious psychological injury to the victim.[89] As Professor Doug Beloof has nicely explained, a justice system that fails to recognize a victim's right to participate threatens "secondary harm" - that is, harm inflicted by the operation of government processes beyond that already caused by the perpetrator.[90] This trauma stems from the fact that the victim perceives that the system's resources "are almost entirely devoted to the criminal, and little remains for those who have sustained harm at the criminal's hands."[91] As two noted experts on the psychological effects of crime have concluded, failure to offer victims a chance to participate in criminal proceedings can "result in increased feelings of inequity on the part of the victims, with a corresponding increase in crime-related psychological harm."[92] On the other hand, there is mounting evidence that "having a voice may improve victims' mental condition and welfare."[93] For some victims, making a statement helps restore balance between themselves and the offenders. Others may consider it part of a just process or may want to communicate the impact of the offense to the offender.[94] This multiplicity of reasons explains why victims and surviving family members want so desperately to participate in sentencing hearings, even though their participation may not necessarily change the outcome.[95]

The possibility of the sentencing process aggravating the grievous injuries suffered by victims and their families is generally ignored by the Amendment's opponents. But this possibility should give us great pause before we structure our criminal justice system to add the government's insult to criminally-inflicted injury. For this reason alone, victims and their families, no less than defendants, should be given the opportunity to be heard at sentencing.

2. The right to be present at trial.

The victim's right to be present at trial creates the most frequently alleged conflict between the Amendment and the defendant's rights.[96] The most detailed and careful explication of this view is Professor Mosteller's, advanced in various articles[97] and recently relied upon by the dissenting senators of this Committee.[98] In brief, Mosteller believes that fairness to defendants requires that victims be excluded from the courtroom, at least in some circumstances, to avoid the possibility that they might tailor their testimony to that given by other witnesses. While I admire the clarity and doggedness with which Mosteller has set forth his position, I respectfully disagree with his conclusions for reasons to be articulated at length elsewhere.[99] Here it is only necessary to note that even this strong opponent of the Amendment finds himself agreeing with the value underlying the victim's right. He writes: "Many victims have a special interest in witnessing public proceedings involving criminal cases that directly touched their lives."[100] This view is widely shared. For instance, the Supreme Court has explained that "[t]he victim of the crime, the family of the victim, [and] others who have suffered similarly . . . have an interest in observing the course of a prosecution."[101] Victim concern about the prosecution stems from the fact that society has withdrawn "both from the victim and the vigilante the enforcement of criminal laws, but [it] cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution."[102]

Professor Mosteller also seems to concede that defendants currently have no constitutional right to exclude victims from trials,[103] meaning that his argument rests purely on policy. Mosteller's policy claim is not the general one that most victims ought to be excluded, but rather the much narrower one that "victims' rights to attend . . . proceedings should be guaranteed unless their presence threatens accuracy and fairness in adjudicating the guilt or innocence of the defendant."[104] On close examination, it turns out that, in Mosteller's view, victims' attendance threatens the accuracy of proceedings not in a typical criminal case, but only in the atypical case of a crime with multiple victims who are all eyewitness to the same event and who thus might tailor their testimony if allowed to observe the trial together.[105] This is a rare circumstance indeed, and it is hard to see the alleged disadvantage in this unusual circumstance outweighing the more pervasive advantages to victims in the run-of-the-mine cases.[106] Moreover, even in rare circumstances of multiple victims, other means exist for dealing with the tailoring issue. For example, the victims typically have given pretrial statements to police, grand juries, prosecutors, or defense investigators that would eliminate their ability to change their stories effectively.[107] In addition, the defense attorney may argue to the jury that victims' have tailored their testimony even when they have not[108] - a fact that leads some critics of the Amendment to conclude this provision will, if anything, help defendants rather than harm them. The dissenting senators, for example, make this harms-the-prosecutor argument,[109] although at another point they appear to present a contrary harms-the-defendant claim.[110] In short, the critics have not articulated strong case against the victim's right to be present.

3. The right to consideration of the victims' interest in a trial free from unreasonable delay.

Opponents of the Amendment sometimes argue that giving victims a right "to consideration" of their interest "that any trial be free from unreasonable delay"[111] would impinge on a defendant's right to prepare an adequate defense. For example, the dissenting Senators in the Judiciary Committee argued that "the defendant's need for more time could be outweighed by the victim's assertion of his right to have the matter expedited, seriously compromising the defendant's right to effective assistance of counsel and his ability to receive a fair trial."[112] Similarly Professor Mosteller advances the claim that this right "also affects substantial interests of the defendant and may alter the outcomes of cases."[113]

These arguments fail to adequately consider the precise scope of the victim's right in question. The right the Amendment confers is one to "consideration of the interest of the victim that any trial be free from unreasonable delay." The opponents never discuss the fact that, by definition, all of the examples that they give of defendants legitimately needing more time to prepare would constitute reasons for "reasonable" delay. Indeed, it is interesting to note similar language in the American Bar Association's directions to defense attorneys to avoid "unnecessary delay" that might harm victims.[114] The victim's right, moreover, is to "consideration" of victims' interests. The proponents of the Amendment could not have been clearer about the intent to allow legitimate defense continuances. As this Committee explained:

The Committee intends for this right to allow victims to have the trial of the accused completed as quickly as is reasonable under all of the circumstances of the case, giving both the prosecution and the defense a reasonable period of time to prepare. The right would not require or permit a judge to proceed to trial if a criminal defendant is not adequately represented by counsel.[115]

Such a right, while not treading on any legitimate interest of a defendant, will safeguard vital interests of victims. Victims' advocates have offered repeated examples of abusive delays by defendants designed solely for tactical advantage rather than actual preparation of the defense of a case.[116] Abusive delays appear to be particularly common when the victims of the crime is a child, for whom each day without the case resolved can seem like an eternity.[117] Such cases present a strong justification for this provision in the Amendment. Nonetheless, in his most recent article Professor Mosteller advances the proposition that this right "should be debated on [its] merits and not as part of a campaign largely devoted to giving victims' rights to notice and to participate in criminal proceedings."[118] This seems a curious argument, as the victims community has tried to debate this right "on its merits" for years. As long ago as 1982, the President's Task Force on Victims of Crime offered suggestions for protecting a victim's interest in a prompt disposition of the case.[119] In the years since then, it has been hard to find critics of victims' rights willing to contend on the merits of the need for protecting victims against abusive delay.[120] If anything, the time has arrived for the opponents of the victim's right to proceedings free from unreasonable delay to address the serious problem of unwarranted delay in criminal proceedings to concede that, here too, a strong case for the Amendment exists.

B. Prosecution-Oriented Challenges to the Amendment

Some objections to victims rights rest not on alleged harm to defendants' interests but rather those of the prosecution. Often these objections surprisingly come from persons not typically solicitous of prosecution concerns,[121] suggesting some skepticism may be warranted. In any event, the arguments lack foundation.

It is sometimes argued that only the state should direct criminal prosecutions. This claim might have some bite against a proposal to allow victims to initiate or otherwise control the course of criminal prosecutions,[122] but it has little force against the proposed amendment. The Victims' Rights Amendment assumes a prosecution-directed system and simply grafts victims' rights onto it. Victims receive notification of decisions that the prosecution makes and, indeed, have the right to provide information to the court at appropriate junctures, such as bail hearings, plea bargaining, and sentencing. However, the prosecutor still files the complaint and moves it through the system, making decisions not only about which charges (if any) to file, but also about which investigative leads to pursue and which witnesses to call at trial. While the victim can follow her "own case down the assembly line" in Professor Beloof's colorful metaphor,[123] the fact remains that the prosecutor runs the assembly line. This general approach of grafting victims' rights onto the existing system mirrors the approach followed by all of the various state victims' amendments, and few have been heard to argue that these systems interfere with legitimate prosecution interests.

Perhaps an interferes-with-the-prosecutor objection might be refined to apply only against a victim's right to be heard on plea bargains, since this right arguably interferes with a prosecutor's ability to terminate the prosecution. But today, it is already the law of many jurisdictions that the court must determine whether to accept or reject a proposed plea bargain after weighing all relevant interests.[124] Given that victims undeniably have relevant, if not compelling, interests in proposed pleas, the Amendment neither breaks new theoretical ground nor displaces any legitimate prosecution interest. Instead, victim statements simply provide more information for the court to consider in making its decision. The available empirical evidence also suggests that victim participation in the plea bargaining process does not burden the courts and produces greater victim satisfaction even where (as is often the case) victims ultimately do not influence the outcome.[125]

In addition, critics of victim involvement in the plea process almost invariably overlook the long-standing acceptance of judicial review of plea bargains. These critics portray pleas as a matter solely for a prosecutor and a defense attorney to work out. They then display a handful of cases in which the defendant was ultimately acquitted at trial after courts had the temerity to reject a plea after hearing from victims. These cases, the critics maintain, prove that any outside review of pleas is undesirable.[126] The possibility of an erroneous rejection of a plea is, of course, inherent in any system allowing review of a plea. In an imperfect world judges will sometimes err in rejecting a plea that, in hindsight, should have been accepted. The salient question, however, is whether as a whole the judicial review does more good than harm - that is, whether, on balance, courts make more right decisions than wrong ones. Just as cases can be cited where judges apparently made mistakes in rejecting a plea, so too they have rejected plea bargains that were unwarranted.[127] The reported cases of victims' persuading judges to reject unjust pleas form just a small part of the picture, because in many other cases, the mere prospect of victim objection undoubtedly has restrained prosecutors from bargaining cases away without good reason. My strong sense is that judicial review of pleas by courts after hearing from victims more often improves rather than retards justice. The failure of the critics to contend on the issue of net effect and the growing number of jurisdictions that allow victim input[128] is strong evidence for this conclusion.

Another prosecution-based objection to victims' rights is that, while they are desirable in theory, in practice they would be unduly expensive.[129] Here again, prominent critics misread the language of the Amendment. For example, the dissenting Senators have advanced the position that the victim's right "not to be excluded from" the trial equates with a victim's right to be transported to the trial. They then conclude that "[t]he right not to be excluded could create a duty for the Government to provide travel and accommodation costs for victims who could not otherwise afford to attend."[130] This objection appears to be contrary to both the plain language of the Amendment and the explicit statements of its supporters and sponsors. The underlying right is not for victims to be transported to the courthouse, but simply to enter the courthouse once there. As the Senate Judiciary Committee report explains, "The right conferred is a negative one - a right `not to be excluded' - to avoid the suggestion that an alternative formulation - a right "to attend" - might carry with it some governmental obligation to provide funding . . . for a victim to attend proceedings."[131] The objection also runs counter to current interpretations of comparable language in other enactments. Federal law and many state constitutional amendments already extend to victims the arguably more expansive right "to be present" at or "to attend" court proceedings.[132] Yet no court has interpreted any one of these provisions as guaranteeing a victim a right of transportation and lodging at public expense. The federal amendment is even less likely to be construed to confer such an unprecedented entitlement because of its negative formulation.[133]

Once victims arrive at the courthouse, their attendance at proceedings imposes no significant incremental costs. In exercising their right to attend, victims simply can sit in the benches that have already been built. Even in cases involving hundreds of victims, innovative approaches such as closed-circuit broadcasting have proven feasible.[134] As for the victims' right to be heard, the state experience reveals only a modest cost impact.[135]

Most of the cost arguments have focused on the Amendment notification provisions. It is already recognized as sound prosecutorial practice to provide notice to victims. The National Prosecution Standards prepared by the National District Attorney Association recommends that victims of violent crimes and other serious felonies should be informed, where feasible, of important steps in the criminal justice process.[136] In addition, many states have required that victims receive notice of a broad range of criminal justice proceedings. Nearly every state provides notice of the trial, sentencing, and parole hearings.[137] In spite of the fact that notice is already required in many circumstances across the country, the dissenting Senators on the Judiciary Committee argued that the "potential costs of [the Amendment's] constitutionally-mandated notice requires alone are staggering . . . ."[138] This suggestion is inconsistent with the relevant evidence. The experience with victim notice requirements already used at the state level suggests that the costs are relatively modest, particularly since computerized mailing lists and telephone calls can be used. The Arizona amendment serves as a good illustration. That amendment extends notice rights far beyond what is called for in the federal amendment,[139] yet prosecutors have not found the expense burdensome in practice.[140] As a result of the existing state notification requirements, any incremental expense in Arizona from the federal amendment should be quite modest.

The only careful and objective assessment of the costs of the Amendment also reaches the conclusion that the costs are slight. The Congressional Budget Office reviewed the financial impact of not just the notification provisions of the Amendment, but of all its provisions on the federal criminal justice system. The CBO concluded that, were the Amendment to be approved, it "could impose additional costs on the Federal courts and the Federal prison system . . . . However, CBO does not expect any resulting costs to be significant."[141]

This CBO report is a good one on which to wrap up the discussion of normative objections to the Amendment. Here is an opportunity to see how the critics' claims fare when put to a fair-minded and neutral assessment. In fact, the critics' often-repeated allegations of "staggering" costs were found to be exaggerated.

II. Justification Challenges A. The "Unnecessary" Constitutional Amendment

Because the normative arguments for victims' rights are so powerful, some critics of the Victims' Rights Amendment take a different tack and mount what might be described as a justification challenge. This approach concedes that victims' rights may be desirable, but maintains that victims already possess such rights or can obtain such rights with relatively minor modifications in the current regime. The best single illustration of this attack is found in Professor Mosteller's soon-to-be-published article, entitled "The Victims' Rights Amendment: The Unnecessary Amendment."[142] There, Mosteller contends that a constitutional amendment is not needed because the obstacles that victims face - described by Mosteller as "official indifference" and "excessive judicial deference" - can all be overcome without a constitutional amendment.[143]

Professor Mosteller's clearly developed position is ultimately unpersuasive because it supplies a purely theoretical answer to a practical problem. In theory, victims' rights could be safeguarded without a constitutional amendment. It would only be necessary for actors within the criminal justice system - judges, prosecutors, defense attorneys, and others - to suddenly begin fully respecting victims' interests. The real world question, however, is how to actually trigger such a shift in the Zeitgeist. For nearly two decades, victims have obtained a variety of measures to protect their rights. Yet, the prevailing view from those who work in the field is that these efforts "have all too often been ineffective."[144] Rules to assist victims "frequently fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, or sheer inertia . . . ."[145] The view that state victims provisions have been and will continue to be often disregarded is widely shared, as some of the strongest opponents of the Amendment seem to concede the point. For example, Ellen Greenlee, President of the National Legal Aid and Defender Association bluntly and revealingly told Congress that the state victims' amendments "so far have been treated as mere statements of principle that victims ought to be included and consulted more by prosecutors and courts. A state constitution is far . . . easier to ignore than the federal one."[146]

Professor Mosteller attempts to minimize the current problems, conceding only that "existing victims' rights are not uniformly enforced."[147] This is a grudging concession to the reality that victims rights are often denied today, as numerous examples of violations of rights in the congressional record and elsewhere attest.[148] A comprehensive view comes from a careful study of the issue by the Department of Justice. As reported by the Attorney 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.[149]

Similarly, a exhaustive report from those active in the 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."[150]

Hard statistical evidence on non-compliance with victims' rights confirms these general conclusions about inadequate protection. As mentioned at the outset of this testimony, a 1998 report from the National Institute of Justice (NIJ) found that many 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."[151] The report provided numerous situations in which victims were not provided rights to which they were entitled. For example, even in several states 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.[152] A follow-up analysis of the same data found that racial minorities are less likely to be afforded their rights under the patchwork of existing statutes.[153] Professor Mosteller dismisses these figures with the essentially ad hominem attack that they were collected by the National Victim Center, which supports a victims' rights amendment.[154] However, the data themselves were collected by an independent polling firm.[155] Mosteller also cites one internal Justice Department reviewer who stated during the review process in conclusory terms that the report was unsatisfactory and should not be published.[156] The conclusion of the NIJ review process, however, after hearing from all reviewers (including apparently favorable peer reviews) was to publish the study.[157] Finally, Mosteller criticizes the data as resting on unverified self-reported data from crime victims. But since the research question was how many victims had been afforded their rights, asking victims (rather than the agencies suspected of failing to provide rights) would appear to be a standard methodological approach. The study also obtained a very high 83% percent response rate from the victims interviewed,[158] suggesting that the findings are not due to any kind of responder bias. And given the magnitude of the alleged failures to provide victims' rights - ranging up to 60% and more - the general dismissal picture presented by the NIJ report is clear. Opponents of the Amendment offer no competing statistics, and such other data as exist tend to corroborate the NIJ findings of substantial noncompliance.[159]

Given such statistics, it is interesting to consider what the defenders of the status quo believe is an acceptable level of violation of rights. Suppose new statistics could be gathered that show that victims rights are respected in 75% of all cases, or 90%, or even 98%. America is so far from a 98% rate for affording victims rights that my friends on the front lines of providing victim services probably will dismiss this exercise as a meaningless law school hypothetical. But would a 98% compliance rate demonstrate that the amendment is "unnecessary"? Even a 98% enforcement rate would leave numerous victims unprotected. As the Supreme Court has observed in response to the claim that the Fourth Amendment exclusionary rule affects "only" about 2% of all cases in this country, "small percentages . . . mask a large absolute number of" cases.[160] A rough calculation suggests that even if the Victims Rights Amendment improved treatment for only 2% of the violent crime cases it affects, a total of about 30,000 victims would benefit each year.[161] Even more importantly, we would not tolerate a mere 98% "success" rate in enforcing other important rights. Suppose that, in opposition to the Bill of Rights, it had been argued that 98% of all Americans could worship in the religious tradition of their choice, 98% of all newspapers could publish without censorship from the government, 98% of criminal defendants had access to counsel, and 98% of all prisoners were free from cruel and unusual punishment. Surely the effort still would have been mounted to move the totals closer to 100%. Given the wide acceptance of victims rights, they deserve the same respect.

Professor Mosteller does not spend much time reviewing the level of compliance in the current system, instead moving quickly to the claim that the constitutional amendment will "not automatically eliminate[]" the problem of official indifference to victims' rights.[162] But the key issue is not whether the Amendment will "eliminate" indifference, but rather whether it will reduce indifference - thereby improving the lot of victims. Here the posture of the Amendment's critics is quite inconsistent. On the one hand, they posit dramatic damaging consequences that will reverberate throughout the system after the Amendment's adoption, even though those consequences are entirely unintended. Yet at the same time, they are unwilling to concede that the Amendment will make even modest positive consequences in the areas that it specifically addresses.

The best view of the Amendment's effects is a moderate one that avoid the varying extremes of the critics. Of course the Amendment will not eliminate all violations of victims' rights, particularly because practical politics have stripped from the Amendment its civil damages provision.[163] But neither will the Amendment amount to an ineffectual response to official indifference. On this point, it is useful to consider the steps involved in adopting the Amendment. Both the House and Senate of the United States Congress would pass the measure by two-thirds votes. Then a full three- quarters of the states would ratify the provision.[164] No doubt these events would generate dramatic public awareness of the nature of the rights and the importance of providing them. In short, the adoption of the Amendment would constitute a major national event. One might even describe it as a "constitutional moment" (of the old fashioned variety) where the nation recognizes the crucial importance of protecting certain rights for its citizens.[165] Were such events to occur, the lot of crime victims likely would improve considerably. The available social science research suggests that the primary barrier to successful implementation of victims' rights is "the socialization of [lawyers] in a legal culture and structure that do not recognize the victim as a legitimate party in criminal proceedings."[166] Professor Mosteller seems to agree generally with this view, explaining that "officials fail to honor victims' rights largely as a result of inertia and past learning, insensitivity to the unfamiliar needs of victims, lack of training, and inadequate or misdirected institutional incentives."[167] A constitutional amendment, reflecting the instructions of the nation to its criminal justice system, is perfectly designed to attack these problems and develop a new legal culture supportive of victims. To be sure, one can paint the prospect of such a change in culture as "entirely speculative."[168] Yet this means nothing more than that, until the Amendment passes, we will not have an opportunity to precisely assay its positive effects. Constitutional amendments have changed our legal culture in other areas, and clearly the logical prediction is that a victims' amendment would go a long way towards curing official indifference. This hypothesis is also consistent with the findings of the NIJ study on state implementation of victims' rights. The study concluded that "[w]here legal protection is strong, victims are more likely to be aware of their rights, to participate in the criminal justice system, to view criminal justice system officials favorably, and to express more overall satisfaction with the system."[169] It is hard to imagine any stronger protection for victims' rights than a federal constitutional amendment. Moreover, we can confidently expect that those who will most often benefit from the enhanced consistency in protecting victims' rights will be members of racial minorities, the poor, and other disempowered groups. Such victims are the first to suffer under the current, "lottery" implementation of victims' rights.[170]

Professor Mosteller devotes much of his article to challenging the claim that the Amendment is needed to block excessive official deference to the rights of criminal defendants. Proponents of the Amendment have argued that, given two hundred years of well-established precedent supporting defendants' rights, the apparently novel victims' rights found in state constitutional amendments and elsewhere too frequently have been ignored on spurious grounds of alleged conflict.[171] Professor Mosteller, however, rejects this argument on the ground that there is no "currently valid appellate case in which a defendant's conviction was reversed because of a provision of state or federal law or state constitution that granted a right to a victim."[172] As a result, he concludes, there is no evidence of "a significant body of law that would warrant the cure of a constitutional provision."[173]

This argument does not refute the case for the Amendment, but rather a strawman erected by the opponents. The important issue is not whether victims rights are thwarted by a body of appellate law, but rather whether they are blocked by any obstacles, including most especially obstacles at the trial level where victims must first attempt to secure their rights. One would naturally expect to find few appellate court rulings rejecting victims' rights; there are few victims' rulings anywhere, let alone in appellate courts. To get to the appellate level - in this context, the "mansion" of the criminal justice system - victims first must pass through the "gatehouse" - the trial court.[174] That trip is not an easy one. Indeed, one of the main reasons for the Amendment is that victims find it extraordinarily difficult to get anywhere close to appellate courts. To begin with, victims may be unaware of their rights or discouraged by prosecutors from asserting them. Even if aware and interested in asserting their rights in court, victims may lack the resources to obtain counsel. Finding counsel, too, will be unusually difficult, since the field of victims' rights is a new one in which few lawyers specialize.[175] Time will be short, since many victims' issues (particularly those revolving around sequestration rules) arise at the start of or even during the trial. Even if a lawyer is found, she must arrange to file an interlocutory appeal in which the appellate court will be asked to intervene in on-going trial proceedings in the court below. If victims can overcome all these hurdles, the courts still possess an astonishing arsenal of other procedural obstacles to prevent victim actions, as Professor Bandes' soon-to-be- published article cogently demonstrates.[176] In light of all these hurdles, appellate opinions about victims issues seem, to put it mildly, quite unlikely.

One can read the resulting dearth of rulings as proving, as Professor Mosteller would have it, that no reported appellate decisions strike down victims' rights. Yet it is equally true that, at best, only a handful of reported appellate decisions uphold victims' rights. This fact tends to provide an explanation for the frequent reports of denials of victims' rights at the trial level. Given that these rights are newly-created and the lack of clear appellate sanction, one would expect trial courts to be wary of enforcing these rights against the inevitable, if invariably imprecise, claims of violations of a defendant's rights.[177] Narrow readings will be encouraged by the asymmetries of appeal - defendants can force a new trial if their rights are denied, while victims cannot.[178] Victims, too, may be reluctant to attempt to assert untested rights for fear of giving defendant a grounds for a successful appeal and a new trial.[179]

In short, nothing in the appellate landscape provides a basis for concluding that all is well with victims in the nation's trial courts. The Amendment's proponents have provided ample examples of victims denied rights in the day-to-day workings of the criminal trials. The Amendment's opponents seem tacitly to concede the point by shifting the debate to the more rarified appellate level. Thus, here again, the opponents have not fully engaged the case for the Amendment.

As one final fallback position, the Amendment's critics maintain that it will not "eliminate" the problems in enforcing victims rights because some level of uncertainty will always remain.[180] However, as noted before, the issue is not eliminating uncertainty, but reducing it. Surely giving victims explicit constitutional protection will vindicate their rights in many circumstances where today the trial judge would be uncertain how to proceed. Moreover, the Amendment's clear conferral of "standing" on victims[181] will help to develop a body of precedents on how victims are to be treated. There is, accordingly, every reason to expect that the Amendment will reduce uncertainties substantially and improve the lot of crime victims.

B. The Oklahoma City Illustration of the "Necessary" Amendment

On assessing whether the amendment is "necessary," it might be said that a page of history is worth of volume of logic.[182] To be sure, one can cite examples of victims who have received fair treatment in the criminal justice system.[183] Nonetheless, this and other examples hardly make the case against reform given the pressing need for improvement in other cases.[184] The question then becomes whether a constitutional amendment would operate to spur that improvement. Here it is necessary to look not at the system's successes in ruling on victims claims, but rather at its failures. The Oklahoma City bombing case provides an illustration of the difficulties victims face in having their claims considered by appellate courts.

During a pre-trial hearing on a motion to suppress, the District Court sua sponte issued a ruling precluding any victim who wished to provide victim impact testimony at sentencing from observing any proceeding in the case.[185] The court based its ruling on Rule 615 of the Federal Rules of Evidence - the so-called "rule on witnesses."[186] In the hour that the court then gave to victims to make this wrenching decision about testifying, some of the victims opted to watch the proceedings; others decided to leave Denver to remain eligible to provide impact testimony.[187]

Thirty-five victims and survivors of the bombing then filed a motion asserting their own standing to raise their rights under federal law and, in the alternative, seeking leave to file a brief on the issue as amici curiae.[188] The victims noted that the district court apparently had overlooked the Victims' Bill of Rights, a federal statute guaranteeing victims the right (among others) "to be present at all public court proceedings, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial."[189]

The District Court then held a hearing to reconsider the issue of excluding victim witnesses.[190] The court first denied the victims' motion asserting standing to present their own claims, allowing them only the opportunity to file a brief as amici curiae.[191] After argument by the Department of Justice and by the defendants, the court denied the motion for reconsideration.[192] It concluded that victims present during court proceedings would not be able to separate the "experience of trial" from "the experience of loss from the conduct in question," and, thus, their testimony at a sentencing hearing would be inadmissible.[193] Unlike the original ruling, which was explicitly premised on Rule 615, the October 4 ruling was more ambiguous, alluding to concerns under the Constitution, the common law, and the rules of evidence.[194]

The victims then filed a petition for writ of mandamus in the U.S. Court of Appeals for the Tenth Circuit seeking review of the district court's ruling.[195] Because the procedures for victims appeals were unclear, the victims filed a separate set of documents appealing from the ruling.[196] Similarly, the Department of Justice, uncertain of precisely how to proceed procedurally, filed both an appeal and a petition for a writ of mandamus.

Three months later, a panel of the Tenth Circuit rejected - without oral argument - both the victims' and the United States' claims on jurisdictional grounds. With respect to the victims' challenges, the court concluded that the victims lacked "standing" under Article III of the Constitution because they had no "legally protected interest" to be present at the trial and consequently had suffered no "injury in fact" from their exclusion.[197] The Tenth Circuit also found the victims had no right to attend the trial under any First Amendment's right of access.[198] Finally, the Tenth Circuit rejected, on jurisdictional grounds, the appeal and mandamus petition filed by the United States.[199] Efforts by both the victims and the Department to obtain a rehearing were unsuccessful,[200] even with the support of separate briefs urging rehearing from 49 members of Congress, all six Attorneys General in the Tenth Circuit, and some of the leading victims groups in the nation.[201]

In the meantime, the victims, supported by the Oklahoma Attorney General's Office, sought remedial legislation in Congress clearly stating that victims should not have to decide between testifying at sentencing and watching the trial. The Victims' Rights Clarification Act of 1997 was introduced to provide that watching a trial does not constitute grounds for denying the chance to provide an impact statement. Representative McCollum, a sponsor of the legislation, observed the painful choice that the district court's ruling was forcing on the victims:

As one of the Oklahoma City survivors put it, a man who lost one eye in the explosion, "It's not going to affect our testimony at all. I have a hole in my head that's covered with titanium. I nearly lost my hand. I think about it every minute of the day." That man, incidentally, is choosing to watch the trial and to forfeit his right to make a victim impact statement. Victims should not have to make that choice.[202]

The 1997 measure passed the House by a vote of 414 to 13.[203] The next day, the Senate passed the measure by unanimous consent.[204] The following day, President Clinton signed the Act into law,[205] explaining that "when someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in."[206]

The victims then promptly filed a motion with the district court asserting a right to attend under the new law.[207] The victims explained that the new law invalidated the court's earlier sequestration order and sought a hearing on the issue.[208] Rather than squarely uphold the new law, however, the district court entered a new order on victim-impact witness sequestration.[209] The court concluded "any motions raising constitutional questions about this legislation would be premature and would present issues that are not now ripe for decision."[210] Moreover, the court held that it could address issues of possible prejudicial impact from attending the trial by conduct a voir dire of the witnesses after the trial.[211] The district court also refused to grant the victims a hearing on the application of the new law, concluding that its ruling rendered their request "moot."[212]

After that ruling, the Oklahoma City victim impact witnesses - once again - had to make a painful decision about what to do. Some of the victim impact witnesses decided not to observe the trial because of ambiguities and uncertainties in the court's ruling, raising the possibility of exclusion of testimony from victims who attended the trial.[213] The Department of Justice also met with many of the impact witnesses, advising them of these substantial uncertainties in the law, and noting that any observation of the trial would create the possibility of exclusion of impact testimony.[214] To end this confusion, the victims filed a motion for clarification of the judge's order.[215] The motion noted that "[b]ecause of the uncertainty remaining under the Court's order, a number of the victims have been forced to give up their right to observe defendant McVeigh's trial. This chilling effect has thus rendered the Victims Rights Clarification Act of 1997 . . . for practical purposes a nullity."[216] Unfortunately, the effort to obtain clarification did not succeed, and McVeigh's trial proceeded without further guidance for the victims.

After McVeigh was convicted, the victims filed a motion to be heard on issues pertaining to the new law.[217] Nonetheless, the court refused to allow the victims to be represented by counsel during argument on the law or during voir dire about the possible prejudicial impact of viewing the trial.[218] The court, however, concluded (as the victims had suggested all along) that no victim was in fact prejudiced as a result of watching the trial.[219]

This recounting of the details of the Oklahoma City bombing litigation leaves no doubt about the difficulties that victims face with mere statutory protection of their rights. For a number of the victims, the rights afforded in the Victims Rights Clarification Act of 1997 and the earlier Victims Bill of Rights were not protected. They did not observe the trial of defendant Timothy McVeigh because of lingering doubts about the constitutional status of these statutes.

Not only were these victims denied their right to observe the trial, but perhaps equally troubling is that the fact that they were never able to speak even a single word in court, through counsel, on this issue. This denial occurred in spite of legislative history specifically approving of victim participation. In passing the Victims Rights Clarification Act, the House Judiciary Committee stated that it "assumes that both the Department of Justice and victims will be heard on the issue of a victim's exclusion, should a question of their exclusion arise under this section."[220] In the Senate, the primary sponsor of the bill similarly stated: "In disputed cases, the courts will hear from the Department of Justice, counsel for the affected victims, and counsel for the accused." Yet the victims were never heard.

Some might claim that this treatment of the Oklahoma City bombing victims should be written off as atypical. However, there is every reason to believe that the victims here were far more effective in attempting to vindicate their rights than victims in less notorious cases. The Oklahoma City bombing victims were mistreated while the media spotlight has been on, when the nation was watching. The treatment of victims in forgotten courtrooms and trials is certainly no better, and in all likelihood much worse. Moreover, the Oklahoma City bombing victims had six lawyers working to press their claims in court - a law professor familiar with victims rights, four lawyers at a prominent Washington, D.C. law firm, and a local counsel in Colorado - as well as an experienced and skilled group of lawyers from the Department of Justice. In the normal case, it often will be impossible for victims to locate a lawyer willing to pursue complex and unsettled issues about their rights without compensation. One must remember that crime most often strikes the poor and others in a poor position to retain counsel.[221] Finally, litigating claims concerning exclusion from the courtroom or other victims rights promises to be quite difficult. For example, a victim may not learn that she will be excluded until the day the trial starts. Filing timely appellate actions in such circumstances promises to be practically impossible. It should therefore come as little surprise that this litigation was the first in which victims sought federal appellate court review of their rights under the Victims Bill of Rights, even though that statute was passed in 1990.

The undeniable, and unfortunate, result of that litigation has been to establish - as the only reported federal appellate ruling - a precedent that will make effective enforcement of the federal victims rights statutes quite difficult. It is now the law of the Tenth Circuit that victims lack "standing" to be heard on issues surrounding the Victims' Bill of Rights and, for good measure, that the Department of Justice may not take an appeal for the victims under either of those statutes. For all practical purposes, the treatment of crime victims' rights in federal court in Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming has been remitted to the unreviewable discretion of individual federal district court judges. The fate of the Oklahoma City victims does not inspire confidence that all victims rights will be fully enforced in the future. Even in other circuits, the Tenth Circuit ruling, while not controlling, may be treated as having persuasive value. If so, the Victims Bill of Rights will effectively become a dead letter.

The Oklahoma City bombing victims would never have suffered these indignities if the Victims Rights Amendment had been the law of the land. First, the victims would never have been subject to sequestration. The Amendment guarantees all victims the constitutional right "not to be excluded from all public proceedings relating to the crime."[222] This would have prevented the sequestration order from being entered in the first place. Moreover, the Amendment affords victims the right "[t]o be heard, if present, at a public . . . trial proceeding to determine a . . . sentence . . . ."[223] This provision would have protected the victims' right to provide impact testimony. Finally, the Amendment provides that "the victim shall have standing to assert the rights established by this article,"[224] a protection guaranteeing the victims, through counsel, the opportunity to be heard to protect those rights.

Critics of the Victims' Rights Amendment have cited the Oklahoma City remedial legislation as an example of the "capability of victims to secure their interests through popular political action"[225] and "a paradigmatic example of how statutes, when properly crafted, can and do work."[226] This sentiment is wide of the mark. To the contrary, the Oklahoma City case provides a compelling illustration of why a constitutional amendment is "necessary" to fully protect victims rights in this country.

III. Structural Challenges

A final category of objections to the Victims' Rights Amendment can be styled as "structural" objections. These objections concede both the normative claim that victims' rights are desirable and the factual claim that such rights are not effectively provided today. These objections maintain, however, that a federal constitutional amendment should not be the agency through which victims' rights are afforded. These objections come in three primary forms. The standard form is that victims' rights simply do not belong in the Constitution as they are different from other rights found there. A variant on this critique is that any attempt to constitutionalize victims' rights will lead to inflexibility, producing disastrous, unintended consequences. A final form of the structural challenge is that the Amendment violates principles of federalism. Each of these arguments, however, lacks merit.

A. Claims that Victims' Rights Do Not Belong in the Constitution.

Perhaps the most basic challenge to the Victims' Rights Amendment is that victims' rights simply do not belong in the Constitution. The most fervent exponent of this view may be constitutional scholar Bruce Fein, who has testified before Congress that the Amendment is improper because it does not address "the political architecture of the nation."[227] Putting victims' rights into the Constitution, the argument runs, is akin to constitutionalizing provisions of the National Labor Relations Act or other statutes, and thus would "trivialize" the Constitution.[228] Indeed, the argument concludes, to do so would "detract from the sacredness of the covenant."[229]

This argument misconceives the fundamental thrust of the Victims' Rights Amendment, which is to guarantee victim participation in basic governmental processes. The Amendment extends to victims the right to be notified of court hearings, to attend those hearings, and to participate in them in appropriate ways. As Professor Tribe and I have elsewhere explained:

These are rights not to be victimized again through the process by which government officials prosecute, punish, and release accused or convicted offenders. These are the very kinds of rights with which our Constitution is typically and properly concerned - rights of individuals to participate in all those government processes that strongly affect their lives.[230]

Indeed, our Constitution has been amended a number of times to protect participatory rights of citizens. For example, the Fourteenth Amendment and Fifteenth Amendment was added, in part, to guarantee that the newly-freed slaves could participate on equal terms in the judicial and electoral processes, while the Nineteenth Amendment and Twenty-Sixth Amendments were added to protect the voting rights of women and eighteen-year-olds.[231] The Victims Rights Amendment continues in that venerable tradition by recognizing that citizens have the right to appropriate participation in the state procedures for punishing crime.

Confirmation of the constitutional worthiness of victims' rights comes from the judicial treatment of an analogous right: the claim of the media to a constitutionally protected interest in attending trials. In Richmond Newspapers v. Virginia,[232] the Court agreed that the First Amendment guaranteed the right of the public and the press to attend criminal trials. Since that decision, few have argued that the media's right to attend trials is somehow unworthy of constitutional protection, suggesting a national consensus that attendance rights to criminal trials are properly the subject of constitutional law. Yet the current doctrine produces what must be regarded as a stunning disparity in the way courts handle claims of access to court proceedings. Consider, for example, two issues actually litigated in the Oklahoma City bombing case. The first was the request of an Oklahoma City television station for access to subpoenas for documents issued through the court. The second was the request of various family members of the murdered victims to attend the trial, discussed previously.[233] My sense is that the victims' request should be entitled to at least as much respect as the media request. Yet under the law that exists today, the television station has a First Amendment interest in access to the documents, while the victims' families have no First Amendment interest in challenging their exclusion from the trial.[234] The point here is not to argue that victims deserve greater constitutional protection than the press, but simply that if press interests can be read into the Constitution without somehow violating the "sacredness of the covenant," the same can be done for victims.[235]

Professor Henderson has advanced a variant on the victims'-rights-don't- belong-in-the-Constitution argument with her claim that "a theoretical constitutional ground for victim's rights has yet to be developed."[236] Law professors, myself included, enjoy dwelling on theory at the expense of real world issues; but even on this plane the objection lacks merit. Henderson seems to concede, if I read her correctly, that new constitutional rights can be justified on grounds they support individual dignity and autonomy.[237] In her view, then, the question becomes one of discovering which policies society should support as properly reflecting individual dignity and autonomy. On this score, there is little doubt that society currently believes that a victim's right to participate in the criminal process is a fundamental one deserving protection. As Professor Beloof has explained at length in his piece here, "Love it or loath it, the law now acknowledges the importance of victim participation in the criminal process."[238]

A further variant on the unworthiness objection is that our Constitution protects only "negative" rights against governmental abuse. Professor Henderson writes, for example, that the Amendment's rights differs from others in the Constitution, which "tend to be rights against government."[239] Setting aside the possible response that the Constitution ought to recognize affirmative duties of government,[240] the fact remains that the Amendment's thrust is to check governmental power, not expand it.[241] Again, the Oklahoma City case serves as a useful illustration. When the victims filed a challenge to a sequestration order directed at them, they sought the liberty to attend court hearings. In other words, they were challenging the exercise of government power deployed against them, a conventional subject for constitutional protection. The other rights in the Amendment fit this pattern, as they restrain government actors, not extract benefits for victims. Thus, the state must give notice before it proceeds with a criminal trial; the state must respect a victim right to attend that trial; and the state must consider the interests of victims at sentencing and other proceedings. These are the standard fare of constitutional protections, and indeed defendants already possess comparable constitutional rights. Thus, extending these rights to victims is no novel creation of affirmative government entitlements.[242]

Still another form of this claim is that victims' rights need not be protected in the Constitution because victims possess power in the political process -- unlike, for example, unpopular criminal defendants.[243] This claim is factually unconvincing because victims' power is easy to overrate. Victims' claims inevitably bump up against well entrenched interests within the criminal justice system,[244] and to date the victims' movement has failed to achieve many of its ambitions. Victims have not, for example, generally obtained the right to sue the government for damages for violations of their rights, a right often available to criminal defendants and other ostensibly less powerful groups. Additionally, the political power claim is theoretically unsatisfying as a basis for denying constitutional protection. After all, freedom of speech, freedom of religion, and similar freedoms hardly want for lack of popular support, yet they are appropriately protected by constitutional amendments. A standard justification for these constitutionally guaranteed freedoms is that we should make it difficult for society to abridge such rights, to avoid the temptation to violate them in times of stress or for unpopular claimants.[245] Victims' rights fit perfectly within this rationale. Institutional players in the criminal justice system are subject to readily understandable temptations to give short shrift to victims' rights. And their willingness to protect the rights of unpopular crime victims is sure to be tested no less than society's willingness to protect the free speech rights of unpopular speakers.[246] Indeed, evidence exists that the biggest problem today in enforcing victims' rights is inequality, as racial minorities and other less empowered victims are more frequently denied their rights.[247]

A final worthiness objection is the claim that victims' rights "trivialize" the Constitution,[248] by addressing such a mundane subject. It is hard for anyone familiar with the plight of crime victims to respond calmly to this claim. Victims of crime literally have died because of the failure of the criminal justice system to extend to them the rights protected by the Amendment. Consider, for example, the victims' right to be notified upon a prisoner's release. The Department of Justice recently explained that "[a]round the country, there are a large number of documented cases of women and children being killed by defendants and convicted offenders recently released from jail or prison. In many of these cases, the victims were unable to take precautions to save their lives because they had not been notified."[249] The tragic unnecessary deaths of those victims is, to say the least, no trivial concern.

Other rights protected by the Amendment are similarly consequential. Attending a trial, for example, can be a crucial event in the life of the victim. The victim's presence can not only facilitate healing of debilitating psychological wounds,[250] but also help the victim try to obtain answers to haunting questions. As one woman who lost her husband in the Oklahoma City bombing explained, "When I saw my husband's body, I began a quest for information as to exactly what happened. The culmination of that quest, I hope and pray, will be hearing the evidence at a trial."[251] On the other hand, excluding victims from trials - while defendants and their families may remain - can itself revictimize victims, creating serious additional or "secondary" harm from the criminal process itself.[252] In short, the claim that the Victims Rights Amendment trivializes the Constitution is itself a trivial contention.

B. The Problem of Inflexible Constitutionalization

Another argument raised against the Victims' Rights Amendment is that victims' rights should receive protection through flexible statutes, not an inflexible constitutional amendment. If victims' rights are placed in the Constitution, the argument runs, it will be impossible to correct any problems that might arise. The Judicial Conference explication of the argument for statutory protection is typical: "Of critical importance, such an approach is significantly more flexible. It would more easily accommodate a measured approach, and allow for `fine tuning' if deemed necessary or desirable by Congress after the various concepts in the Act are applied in actual cases across the country."[253]

This argument contains a kernel of truth because its premise - the Constitution is less flexible than a statute - is undeniably correct. This premise is, however, the starting point for the victims' position as well. Victims' rights all too often have been "fine tuned" out of existence. As even the Amendment's critics agree, statutes are "far easier to ignore,"[254] and for this very reason victims seek to have their rights protected in the Constitution. To carry any force, the argument must establish that the greater respect victims will receive from constitutionalization of their rights is outweighed by the unintended, undesirable, and uncorrectable consequences of lodging rights in the Constitution.

Such a claim is untenable. To begin with, the Victims' Rights Amendment spells out in considerable detail the rights it extends. While this wordiness has exposed the Amendment to the charge of "cluttering the Constitution"[255] the fact is that the room for surprises is substantially less than with other previously adopted, more open-ended amendments. On top of the Amendment's precision, its sponsors further have explained in great detail their intended interpretation of the Amendment's provisions.[256] In response, the dissenting senators were forced to argue not that these explanations were imprecise or unworkable, but that courts simply would ignore them in interpreting the Amendment[257] and, presumably, go on to impose some contrary and damaging meaning. This prediction that courts would leap over these explanations seems unpersuasive because courts routinely look to the intentions of drafters, in interpreting constitutional language no less than other enactments.[258] Moreover, the assumption that courts will interpret the Amendment to produce great mischief requires justification. One can envision, for instance, precisely the same arguments about needing flexibility being leveled against a defendant's right to a trial by jury.[259] What about petty offenses?[260] What about juvenile proceedings?[261] How many jurors will be required?[262] All these questions have, as indicated in the footnotes, been resolved by court decision without disaster to the Union. There is every reason to expect that the Victims' Rights Amendment will be similarly interpreted in a sensible fashion. Just as courts have not read the seemingly unqualified language of the First Amendment as creating a right to yell "Fire!" in a crowded theater,[263] they will not construe the Victims Rights Amendment as requiring bizarre results.[264]

In any event, the claim of unintended consequences amounts to an argument about language - specifically, that the language is insufficiently malleable to avoid disaster. An argument about inflexible language can be answered with language providing elasticity. The Victims' Rights Amendment has a provision addressed to precisely this point. The Amendment provides that "[e]xceptions to the rights established by this article" may be created "when necessary to achieve a compelling interest."[265] Any parade of horribles collapses under this provision. A serious unintended consequence under the language of the Amendment is, by definition, a compelling reason for creating an exception. Curiously, those who argue that the Amendment is not sufficiently flexible to avoid calamity have yet to explain why the exceptions clause fails to guarantee all the malleability that is needed.

C. Federalism Objections

A final structural challenge to the Victims Rights Amendment is the claim that it violates principles of federalism by mandating rights across the country. For example, a 1997 letter from various law professors objected that "amending the Constitution in this way changes basic principles that have been followed throughout American history . . . . The ability of states to decide for themselves is denied by this Amendment."[266] Similarly, the American Civil Liberties Union warned that the Amendment "constitutes [a] significant intrusion of federal authority into a province traditionally left to state and local authorities."[267]

The inconsistency of many of these newfound friends of federalism is almost breathtaking. Where were these law professors and the ACLU when the Supreme Court federalized a whole host of criminal justice issues ranging from the right to counsel, to Miranda, to death penalty procedures, to search and seizure rules, among many others? The answer, no doubt, is that they generally applauded nationalization of these criminal justice standards despite the adverse effect on the ability of states "to decide for themselves." Perhaps the law professors and the ACLU have had some epiphany and mean to now launch an attack on the federalization of our criminal justice system and to try and return power to the states. Certainly quite plausible arguments could be advanced in support of trimming the reach of some federal provisions.[268] But whatever the law professors and the ACLU may think, it is unlikely that we will ever retreat from our national commitment to afford criminal defendants basic rights like the right to counsel. Victims are not asking for any retreat, but for an extension - for a national commitment to provide basic rights in the process to criminal defendants and to their victims. This parallel treatment works no new damage to federalist principles.[269]

Precisely because of the constitutionalization and nationalization of criminal procedure, victims now find themselves needing constitutional protection. In an earlier era, it may have been possible for judges to informally accommodate victims' interests on an ad hoc basis. But coin of the criminal justice realm has now become constitutional rights. Without those rights, victims nave not been taken seriously in the system. Thus, it is not a victims' rights amendment that poses a danger to state power, but the lack of an amendment. Without an amendment, states cannot give full effect to their policy decision to protect the rights of victims. Only elevating these rights to the federal Constitution will solve this problem. This is why the National Governor's Association - a long-standing friend of federalism - has strongly endorsed the Amendment: "The rights of victims have always received secondary consideration within the U.S. judicial process, even though States and the American people by a wide plurality consider victims' rights to be fundamental. Protection of these basic rights is essential and can only come from a fundamental change in our basic law: the U.S. Constitution."[270]

While the Victims' Rights Amendment will extend basic rights to crime victims across the country, it leaves considerable room to the states to determine how to accord those rights within the structures of their own systems. For starters, the Amendment extends rights to a "victim of a crime of violence, as these terms may be defined by law . . . ."[271] The "law" that will define these crucial terms will come from the states. Indeed, states retain a bedrock of control over all victims rights provisions - without a state statute defining a crime, there can be no "victim" for the criminal justice system to consider.[272] The Amendment also is written in terms that will give the states considerable latitude to accommodate legitimate local interests. For example, the Amendment only requires the states to provide "reasonable" notice to victims, avoiding the inflexible alternative of mandatory notice (which, by the way, is required for criminal defendants[273]).

In short, federalism provides no serious objection to the Amendment. Any lingering doubt on the point disappears in light of the Constitution's prescribed process for amendment, which guarantees ample involvement by the states. The Victims' Rights Amendment will not take effect unless a full three-quarters of the states, acting through their state legislatures, ratify the Amendment within seven years of its approval by Congress.[274] It is critics of the Amendment who, by opposing congressional approval, deprive the states of their opportunity to consider the proposal.[275]


This testimony has attempted to review thoroughly the various objections leveled against the Victims' Rights Amendment, finding them all wanting. While a few normative objections have been raised to the Amendment, the values undergirding it are widely shared in our country, reflecting a strong consensus that victims' rights should receive protection. Contrary to the claims that a constitutional amendment is somehow unnecessary, practical experience demonstrates that only federal constitutional protection will overcome the institutional resistence to recognizing victims' interests. And while some have argued that victims' rights do not belong in the Constitution, in fact the Victims' Rights Amendment addresses subjects that have long been considered entirely appropriate for constitutional treatment.

Stepping back from these individual objections and viewing them as a whole reveals one puzzling feature emerges that is worth a few concluding observations. While some of the objections are carefully developed,[276] many others are contradicted by either specific language in the Amendment or real world experience with the implementation of victims' rights programs. I hasten to add that others have observed this phenomenon of unsustainable arguments being raised against victims' rights. One careful scholar in the field of victim impact statements, Professor Edna Erez, comprehensively reviewed the relevant empirical literature and concluded that the actual experience with victim participatory rights "suggests that allowing victims' input into sentencing decisions does not raise practical problems or serious challenges from the defense. Yet there is a persistent belief to the contrary, particularly among legal scholars and professionals."[277] Erez attributed the differing views of the social scientists (who had actually collected data on the programs in action) and the legal scholars primarily to "the socialization of the latter group in a legal culture and structure that do not recognize the victim as a legitimate party in criminal proceedings."[278]

The objections against the Victims' Rights Amendment, often advanced by attorneys, provide support for Erez's hypothesis. Many of the complaints rest on little more than an appeal to retain a legal tradition that excludes victims from participating in the process, to in some sense leave it up to the "professionals" - the judges, prosecutors, and defense attorneys - to do justice as they see fit. Such entreaties may sound attractive to members of the bar, who not only have vested interests in maintaining their monopolistic control over the criminal justice system but also have grown up without any exposure to crime victims or their problems. The "legal culture" that Erez accurately perceived is one that has not made room for crime victims. Law students learn to "think like a lawyer" in classes such as criminal law and criminal procedure, where victims' interests receive no discussion. In the first year in criminal law, students learn in excruciating detail to focus on the state of mind of a criminal defendant, through intriguing questions about mens rea and the like.[279] In the second year, students may take a course on criminal procedure, where defendants' and prosecutors' interests under the constitutional doctrine governing search and seizure, confessions, and right to counsel are the standard fare. Here, too, victims are absent. The most popular criminal procedure casebook, for example, spans some 1692 pages;[280] yet victims' rights' appear directly only in two paragraphs, made necessary because in California a victims' rights initiatives affected a defendant's right to exclude evidence.[281] Finally, in their third year, students may take a clinical course in the criminal justice process, where they may be assigned to assist prosecutors or defense attorneys in actual criminal cases. Not only are they never assigned to represent crime victims, but in courtrooms they will see victims frequently absent, or participating only through prosecutors or the judicial apparatus such as probation officers.

Given this socialization, it is no surprise to find that when those lawyers leave law school they become part of a legal culture unsympathetic, if not overtly hostile, to the interests of crime victims.[282] The legal insiders view with great suspicion demands from the outsiders - the barbarians, if you will - to be admitted into the process. A prime illustration comes from Justice Stevens' concluding remarks in his dissenting opinion in Payne. He found it almost threatening that the Court's decision admitting victim impact statements would be "greeted with enthusiasm by a large number of concerned and thoughtful citizens."[283] For Justice Stevens, the Court's decision to structure this rule of law in a way consistent with public opinion was "a sad day for a great institution."[284] To be sure, the Court must not allow our rights to be swept away by popular enthusiasm. But when the question before the Court is the separate and ancillary one of whether to recognize rights for victims, one would think that public consensus on the legitimacy of those rights would be a virtue, not a vice. As Professor Gewirtz has thoughtfully concluded after reviewing this same passage, "The place of public opinion cannot be dismissed so quickly, with `a sad day' proclaimed because a great public institution may have tried to retain the confidence of its public audience."[285]

Justice Stevens' views were, on that day at least,[286] in the minority. But in countless other ways, his antipathy to recognizing crime victims prevails in the day-to-day workings of our criminal justice system. Fortunately, there is a way to change this hostility, to require the actors in the process to recognize the interests of victims of crime. As Thomas Jefferson once explained, "Happily for us, . . . when we find our constitutions defective and insufficient to secure the happiness of our people, we can assemble with all the coolness of philosophers, and set them to rights, while every other nation on earth must have recourse to arms to amend or to restore their constitutions."[287] Our nation, through its assembled representatives here in Congress and the state legislatures, should use the recognized amending power to secure a place for victims' rights in our Constitution. While conservatism is often a virtue, there comes a time when the case for reform has been made. Today the criminal justice system too often treats victims as second-class citizens, almost as barbarians at the gates that must be repelled at all costs. The widely- shared view is that this treatment is wrong, that victims have legitimate concerns that can - indeed must - be fully respected for the system to be fair and just. The Victims' Rights Amendment is an indispensable step in that direction, extending protection for the rights of victims while doing no harm to the rights of defendants and of the public. The Amendment will not plunge the criminal justice system into the dark ages, but will instead herald a new age of enlightenment. It is time for the defenders of the old order to recognize these facts, to help swing open the gates, and welcome victims to their rightful place in our nation's criminal justice system. Congress should approve the carefully crafted current version of the Victims' Rights Amendment and send it on its way to the states for ratification. Our criminal justice system already provides ample rights for the accused and the guilty; it can - and should - do the same for the innocent.


[1]: See The Victims Right Amendment: Hearings Before the Senate Comm. on the Judiciary, 105th Cong., 2nd Sess. (Apr. 28, 1998); Crime Victims' Rights Amendment: Hearing Before the Senate Comm. on the Judiciary, 105th Cong., 1st Sess. (Apr. 16, 1997); The Victims' Bill of Rights Amendment: Hearings Before the Senate Comm. on the Judiciary, 104th Cong., 2d Sess. (April 23, 1996).

[2]: A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the Sen. Judiciary Comm., 105th Cong., 1st Sess. 41 (Apr. 16, 1997) (statement of Attorney General Janet Reno).

[3]: Laurence Tribe, The Amendment Could Protect Basic Human Rights, Harv. L. Bull., Summer 1997, at 19, 20.

[4]: Chief Justice Richard Barajas & Scott Alexander Nelson, The Proposed Crime Victims' Federal Constitutional Amendment: Working Toward a Proper Balance, 49 Baylor L. Rev. 1, 13 (1997).

[5]: U.S. Dep't of Justice, Office for Victims of Crime, New Directions from the Field: Victims' Rights and Services for the 21st Century 9 (1998).

[6]: Id. at 10-12.

[7]: Nat'l Inst. of Justice, Research in Brief, The Rights of Crime Victims -- Does Legal Protection Make a Difference? 1 (Dec. 1998).

[8]: Id. at 4 exh. 1.

[9]: National Victim Center, Statutory and Constitutional Protection of Victims' Rights: Implementation and Impact on Crime Victims: Sub-Report on Comparison of White and Non-White Crime Victim Responses Regarding Victims' Rights 5 (1997).

[10]: See Announcement by President Bill Clinton on Victims Rights, available in LEXIS on Federal News Service, June 25, 1996.

[11]: See S. Rep. No. 105-409 at 37 (Amendment approved by 11-6 vote).

[12]: Dan Carney, Crime Victims Amendment Has Steadfast Support, But Little Chance of Floor Time, Cong. Quart., July 30, 1998.

[13]: I use the term "man" provocatively because certain aspects of the defense resist efforts by feminists to provide justice to victims of rape and domestic violence, who are disproportionately women. See, e.g., Beverly Harris Elliott, President of the National Coalition Against Sexual Assault, Balancing Justice: How the Amendment Will Help All Victims of Sexual Assault,; Joan Zorza, Victims' Rights Amendment Empowers All Battered Women (; see also infra notes 248-52 and accompanying text (discussing woman and children who have died from lack of notice of an offender's release);

[14]: A Proposed Constitutional Amendment to Protect Victims of Crime: Hearings before the Sen. Comm. on the Judiciary, 105th Cong, 1st Sess. 141 (1997) (hereinafter 1997 Sen. Judiciary Comm. Hearings) (letter from various law professors opposing the Amendment).

[15]: Proposals for a Constitutional Amendment to Provide Rights for Victims of Crime: Hearings Before the House Judiciary Comm, 104th Cong., 2d Sess. 143 (1996) (hereinafter 1996 House Judiciary Comm. Hearings) (statement of Ellen Greenlee, President, National Legal Aid and Defender Association).

[16]: A Proposed Constitutional Amendment to Establish a Bill of Rights for Crime Victims: Hearings Before the Sen. Judiciary Comm., 104th Cong., 2d Sess. 101 (1996) (hereinafter 1996 Sen. Judiciary Comm. Hearings) (statement of Bruce Fein).

[17]: My testimony draws heavily on an article that will appear shortly in a symposium issue of the Utah Law Review devoted to the rights of crime victims. See Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. __ (forthcoming). I extend my thanks to the editors of the law review for allowing me to use that some of that material here.

[18]: See, e.g., Robert P. Mosteller, The Victims' Rights Amendment: The Unnecessary Amendment, 1999 Utah L. Rev. __ (hereinafter Mosteller, Unnecessary Amendment); see also Robert P. Mosteller, Victims' Rights and the United States Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 Geo. L.J. 1691 (1997) (hereinafter Mosteller, Recasting the Battle).

[19]: Unless otherwise specifically noted, I will refer to the minority views of Sens. Leahy, Kennedy, and Kohl as the "dissenting senators," although a few other senators also briefly offered their dissenting views.

[20]: S. Rep. No. 105-409 at 50 (minority views of Sens. Leahy, Kennedy and Kohl).

[21]: 1997 Law Professors Letter, reprinted in 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 141.

[22]: See S. 1081, 105th Cong., 1st Sess. 1997; see also S. Rep. No. 105- 409 at 77 (minority views of Sens. Leahy, Kennedy and Kohl) (defending this statutory protection of victims rights).

[23]: See, e.g., 1997 Law Professors Letter ("crime victims deserve protection, but this should be accomplished by statutes, not a constitutional amendment . . . ."), reprinted in 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 141.

[24]: See generally Stephen J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect Things, 1999 Utah L. Rev. ___ (forthcoming) (noting frequency with which opponents of the Victims' Rights Amendment endorse the goals in the amendment).

[25]: See Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. Times, July 6, 1998, at B5. For a more detailed exposition of Professor Tribe's views, see 1996 House Judiciary Comm. Hearings, supra note 15, at 238 (letter from Professor Tribe).

[26]: S. Rep. 105-409 (additional views of Sen. Biden).

[27]: 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)).

[28]: As originally proposed, the Amendment extended victims a broad right "to a final disposition of the proceedings relating to the crime free from unreasonable delay." S.J. Res. 6 (1995). It now provides victims a narrower right to "consideration of the interest of the victim that any trial be free from unreasonable delay." S.J. Res. 3 (1999). This narrower formulation, limited to a "trial," avoids the objection that an open-ended right to a speedy disposition could undercut a defendant's post-trial, habeas corpus rights, particularly in capital cases. See, e.g., 1997 Senate Judiciary Comm. Hearings, supra note 14, at 155 (statement of Mark Kappelhoof, ACLU Legislative Counsel).

As originally proposed, the Amendment also promised victims a broad right to "be reasonably protected from the accused." S.J. Res. 6 (1995). It now provides victims a right to "have the safety of the victim considered in determining a release from custody." S.J. Res. 3 (1999). This narrower formulation was apparently designed, in part, to respond to the objection that the Amendment might be construed to hold offenders "beyond the maximum term or even indefinitely if they are found to pose a danger to their victims." See 1997 Senate Judiciary Comm. Hearings, supra note 14, at 155 (statement of Mark Kappelhoof, ACLU Legislative Counsel).

Professor Mosteller has argued that these particular changes, and several others like them, were designed to move the Amendment away from providing aid to victims to instead provide nothing but a benefit to prosecutors. Robert P. Mosteller, Victims' Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefitting the Prosecution, 29 St. Mary's L.J. 1053, 1058 (1998). This strikes me as a curious view, given the way in which these changes responded to concerns expressed by advocates of defendants' rights, including Mosteller himself. See Mosteller, Recasting the Battle, supra note 18, at 1707 n.58. More generally, it should be clear that the proposed Amendment is not predicated on the idea of providing benefits to prosecutors. Not only has the Amendment been attacked as harming prosecution interests, see infra notes 121-41 and accompanying text, but it does not attempt to achieve such favorite goals of prosecutors: overturning the exclusionary rule. Cf. Cal. Const. art. I,  28 (victims initiative restricting exclusion of evidence); Or. Const., art. I,  42 (same), invalidated, Armatta v. Kitzhaber, 959 P.2d 49(Or. 1998) (initiative violated single subject rule). See generally President's Task Force on Victims of Crime, Final Report 24-26 (1982) (urging abolition of exclusionary rule on victim-related grounds)

[29]: Until the opponents of the Amendment can establish any conflict between defendants' rights under the Constitution and victims' rights under the Amendment, there is no need to address the subject of how courts should balance the rights in case of conflict. Cf. S. Rep. 105-409 at 22-23 (explaining reasons for rejecting balancing language in the Amendment).

[30]: S. Rep. 105-409 at 66 (minority views of Sens. Leahy, Kennedy and Kohl) (emphasis added).

[31]: Id. (minority views of Sens. Leahy, Kennedy and Kohl).

[32]: S.J. Res. 3,  1 (1999).

[33]: See S. 1081, 105th Cong., 1st Sess.  101 (right to be heard on the issue of detention);  121 (right to be heard on merits of plea agreement);  122 (enhanced right of allocution at sentencing).

[34]: S. Rep. 105-409 at 50 (minority views of Sens. Leahy and Kennedy).

[35]: See, e.g., Cong. Rec., July 29, 1997, at S8275 (statement of Sen. Kennedy); Statement of Sen. Patrick Leahy on the Introduction of the Crime Victims Assistance Act, July 29, 1997.

[36]: See Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L. Rev. 1373, 1394-96.

[37]: See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361 (1996).

[38]: See id. at 392-93. In a recent conversation, Professor Bandes stated that though her article focused on the capital context, she did not intend to imply that victim impact statements ought to be admissible in non- capital cases. Indeed, based on the proponents' argument that victim impact statements by relatives and friends are needed because the homicide victim is, by definition, unavailable, she believes such statements would seem even less defensible in non-homicide cases. This extension of her argument seems unconvincing, as the case for excluding victim statements is stronger for capital cases than for others. Not only are noncapital cases generally less fraught with emotion, but the sentence is typically imposed by a judge, who can sort out any improper aspects of victim statements. For this reason, even when victim impact testimony was denied in capital case to juries, courts often concluded that judges could hear the same evidence. See Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987); State v. Card, 825 P.2d 1081, 1089 (Idaho 1991); State v. Johnson, 594 N.E.2d 253, 270 (Ill. 1992); State v. Beaty, 762 P.2d 519, 531 (Ariz. 1988), cert. denied, 491 U.S. 910 (1989); State v. Post, 513 N.E.2d 754, 759 (Ohio. 1987). It is also hazardous to generalize about such testimony given the vast range of varying circumstances presented by noncapital cases. See generally Stephen J. Schulhofer, The Trouble with Trials; the Trouble with Us, 105 Yale L.J. 825, 848-49 (1995) (noting differences between victim participation in capital and noncapital sentencings and concluding "wholesale condemnation of victim participation under all circumstances is surely unwarranted").

[39]: Several other articles have also focused on and carefully developed a case against victim impact statements. See, e.g., Lynne N. Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937, 986-1006 (1985); Donald J. Hall, Victims' Voices in Criminal Court: The Need for Restraint, 28 Am. Crim. L. Rev. 233 (1991). Because Professor Bandes' is the most current, I focus on it here as exemplary of the critics' position.

[40]: See Bandes, supra note 37, at 398 (emphasis added).

[41]: See id. at 398-99.

[42]: See, e.g., Booth v. Maryland, 482 U.S. 496, 509-515 (1987); A Federal Judge Speaks Out for Victims, Am. Lawyer, Mar. 20, 1995, at 4 (statement by federal judge Michael Luttig at the sentencing of his father's murderers); United States v. McVeigh, 1997 WL 296395 (various victim impact statements at sentencing of Timothy McVeigh); United States v. Nichols, 1997 WL at 790551 (various victim impact statements at sentencing of Terry Nichols).

[43]: Marha Kight, Forever Changed: Remembering Oklahoma City, April 19, 1995 (1998).

[44]: The Family of Ron Goldman, His Name is Ron (1997).

[45]: Nancy Lamb and Children of Oklahoma City, One April Morning: Children Remember the Oklahoma City Bombing (1996).

[46]: Alice R. Kaminsky, The Victim's Song (1985).

[47]: George Lardner Jr., The Stalking of Kristin: A Father Investigates the Murder of His Daughter (1995).

[48]: Dorris D. Porch & Rebecca Easley, Murder in Memphis: The True Story of a Family's Quest for Justice (1997).

[49]: Mike Reynold & Bill Jones, Three Strikes and You're Out . . . A Promise to Kimber: The Chronicle of America's Toughest Anti-Crime Law (1996).

[50]: Deobrah Spungen, And I Don't Want to Live This Life (1984).

[51]: John Walsh, Tears of Rage: From Grieving Father to Crusader for Justice: The Untold Story of the Adam Walsh Case (1997). Professor Henderson describes Walsh as preaching a "gospel of rage and revenge." Lynne Henderson, Victims Rights in Theory and Practice, 1999 Utah L. Rev. ___ (forthcoming). This seems to me to misunderstand Walsh's efforts, which Walsh has explained as making sure that his son Adam "didn't die in vain." Walsh, supra, at 305. Walsh's Herculean efforts to establish the National Center for Missing and Exploited Children, see id, at 131-58, is a prime example of neither rage nor revenge, but rather a desirable public policy reform springing from a tragic crime.

[52]: Milton J. Shapiro with Marvin Weinstein, Who Will Cry for Staci? The True Story of a Grieving Father's Quest for Justice (1995).

[53]: See, e.g., Shelley Neiderbach, Invisible Wounds: Crime Victims Speak (1986); Gary Kinder, Victim (1982); Joseph Wambaugh, The Onion Field (1973); Deborah Spungeon, Homicide: The Forgotten Victims (1998); Janice Harris Lord, No Time for Goodbyes: Coping with Sorrow, Anger and Injustice After a Tragic Death (4th ed. 1991).

[54]: Bandes, supra note 37, at 361 (quoting Payne v. Tennessee, 501 U.S. 808, 814-15 (1991)).

[55]: Id. at 361.

[56]: Id. at 401.

[57]: See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence  4.5 at 197 (1995).

[58]: Cf. Erez, Who's Afraid of the Victim?, supra note 69, at [13] ("legal professionals [in South Australia] who have been exposed to [victim impact statements] have commented on how uninformed they were about the extent, variety and longevity of various victimization, how much they have learned . . . about the impact of crime on victims") .

[59]: See Brooks Douglas, Oklahoma's Victim Impact Legislation: A New Voice for Victims and Their Families, 46 Okla. L. Rev. 283, 289 (1993) (offering an example of a jury denied the truth about the full impact of a crime).

[60]: In addition to allow assessment of the harm of the crime, victim impact statements are also justified because they provide "a quick glimpse of the life which the defendant choose to extinguish." Payne v. Tennessee, 501 U.S. at 822 (internal quotations omitted). In the interests of brevity, I will not develop such an argument here, nor will I address the more complicated issues surrounding whether a victim's family members may offer opinions about the appropriate sentence for a defendant. See id. at 830 n.2 (reserving this issue); S. Rep. No. 105-409 at 28-29 (indicating that the Victims' Rights Amendment does not alter laws precluding victim opinion as to the proper sentence).

[61]: Bandes, supra note 37, at 402.

[62]: The only empirical evidence Bandes discusses concerns the alleged race-of-the-victim effect found in the Baldus study of Georgia capital cases in the 1980s. This study, however, sheds no direct light on the effect of victim impact statements on capital sentencing, as victim impact evidence apparently was not, and indeed could not have been at that time, one of the control variables. See Ga. Code Ann.  17-10-1.1, -1.2 (Mich. Supp. 1986) (barring victim impact testimony). Had victim impact evidence been one of the variables, it seems likely that any race-of-the-victim effect would have been reduced by giving the jurors actual information about the uniqueness and importance of the life taken, thereby eliminating the jurors' need to rely on stereotypic, and potentially race-based, assumptions. In any event, there is no need to ponder such possibilities at length here because the race-of-the-victim "effect" disappeared when important control variables were added to the regression equations. See McCleskey v. Zant, 580 F. Supp. 338, 366 (D. Ga. 1984), aff'd in part and rev'd in part, 753 F.2d 877 (11th Cir. 1986), aff'd, 481 U.S. 279 (1987).

[63]: Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1556 (1998). The study concluded that jurors would be more likely to impose death if the victim was a child,, id., and that "extreme caution" was warranted in interpreting its findings. Id. It should be noted that the study data came from cases between roughly 1986 and 1993, when victim impact statements were not generally used. See id. at 1554. However, it is possible that a victim impact statement may have been introduced in a few of the cases in the data set after the 1991 Payne decision. EMAIL from Prof. Stephen P. Garvey to Prof. Paul G. Cassell, Feb. 11, 1999 (on file with author).

Garvey's methodology of surveying real juries about real cases seems preferable to relying on mock jury research, which suggests that victim impact statements may affect jurors' views about capital sentencing. See Edith Greene, The Many Guises of Victim Impact Evidence and Effects on Jurors' Judgments, __ Psychology, Crime & Law ___ (forthcoming 1999); Edith Greene & Heather Koehring, Victim Impact Evidence in Capital Cases: Doe the Victim's Character Matter?, 28 J. Applied Social Psychology 145 (1998); James Luginbuhl & Michael Burkhead, Victim Impact Evidence in Capital Trial: Encouraging Votes for Death, 20 Am. J. Crim. Just. 1 (1995); but cf. Ronald Mazzella & Alan Feingold, The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis, 1994 J. Applied Social Psychology 1315 (1994) (meta-analysis of previous research finds that effects of victim characteristics on juror's judgments were generally inconsequential). Whether mock jury simulations capture real world effects is open to question generally. See Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confession, __ Harv. J.L. & Pub. Pol'y __, ___ (forthcoming 1999); Free v. Peters, 12 F.3d 700, 705-06 (7th Cir. 1994) (en banc). The concerns about the realism of mock jury research apply with particular force to emotionally-charged death penalty verdicts. See Mark Costanzo & Sally Costanzo, Jury Decision Making in the Capital Penalty Phase, 16 Law & Human Behavior 185, 191 (1992) ("the very nature of the [death] penalty decision may render it an inappropriate topic for jury simulation studies").

[64]: See Booth v. Maryland, 482 U.S. 496 (1987).

[65]: See Payne v. Tennessee, 501 U.S. 808 (1991).

[66]: A full discussion of the data is found in Appendix B of my forthcoming article in the Utah Law Review, supra note 17.

[67]: See U.S. Dep't of Justice, Nat'l Inst. Of Justice, Victim Appearances at Sentencing Hearings Under the California Victims' Bill of Rights 61 (1987) () (hereinafter NIJ Sentencing Study).

[68]: Robert C. Davis & Barbara E. Smith, The Effects of Victim Impact Statements on Sentencing Decisions: A Test in an Urban Setting, 11 Just. Quart. 453, 466 (1994); accord Robert C. Davis et al., Victim Impact Statements: Their Effects on Court Outcomes and Victim Satisfaction 68 (1990).

[69]: Edna Erez, Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice, __ Crim. L. Rev. __ (forthcoming 1999) (hereinafter Erez, Who's Afraid of the Victim?); accord Edna Erez, Victim Participation in Sentencing: And the Debate Goes On . . . , 3 Int'l Rev. of Victimology 17, 22 (1994) ("[r]esearch on the impact of victims' input on sentencing outcome is inconclusive. At best it suggests that victim input has only a limited effect") (hereinafter Erez, Victim Participation). For further discussion of the effect of victim impact statements, see, e.g., Edna Erez & Pamela Tontodonato, The Effect of Victim Participation in Sentencing on Sentence Outcome, 28 Criminology 451, 467 (1990); Susan W. Hillenbrand & Barbara E. Smith, Victims Rights Legislation: An Assessment of Its Impact on Criminal Justice Practitioners and Victims, A Study of the ABA Criminal Justice Section Victim Witness Project 159 (1989); see also Edna Erez & L. Roeger, The Effect of Victim Impact Statements on Sentencing Patterns and Outcomes: The Australian Experience, 23 J. Crim. Justice 363 (1995) (Australian study); R. Douglas et al., Victims of Efficiency: Tracking Victim Information Through the System in Victoria, Australia, 3 Int'l Rev. of Victimology 95 (1994) (same); Edna Erez, Victim Impact Statements and Sentencing Outcomes and Process: The Perspectives of Legal Professionals, 39 British J. of Criminology 216 (forthcoming 1999) (same).

[70]: David D. Friedman, Should the Characteristics of Victims and Criminals Count?: Payne v. Tennessee and Two Views of Efficient Punishment, 34 Boston College L. Rev. 731, 749 (1993).

[71]: See id.

[72]: See Erez & Tontodonato, supra note 69, at 469.

[73]: See Erez, Perspectives of Legal Professionals, supra note 69, at [30] (South Australian study); see also Edna Erez, Victim Participation in Sentencing: Rhetoric and Reality, 18 J. Crim. Justice 19 (1990).

[74]: See, e.g., Bandes, supra note 37, at 408.

[75]: 482 U.S. at 505, overruled in Payne v. Tennessee, 501 U.S. 808 (1991)..

[76]: See Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 Nw. U.L. Rev. 863, 882 (1996).

[77]: Payne, 501 U.S. at 826.

[78]: See Boyde v. California, 494 U.S. 370, 382 n.5 (1990). See generally Comment, Retribution's "Harm" Component and the Victim Impact Statement: Finding a Workable Model, 18 U. Dayton L. Rev. 389, 416-17 (1993).

[79]: Cf. Walton v. Arizona, 497 U.S. 639, 674 (1990) (Scalia, J., concurring) (criticizing decisions allowing such varying mitigating evidence on equality grounds).

[80]: Booth, 482 U.S. at 518 (White, J., dissenting).

[81]: Gewirtz, supra note 76, at 880-82; see also Beloof, supra note 89 (noting this value as part of a third model of criminal justice); President's Task Force on Victims of Crime, Final Report 16 (1982).

[82]: Id. at 520 (Scalia, J., dissenting); accord President's Task Force on Victims of Crime, Final Report 77 (1982); Gewirtz, supra note 76, at 825-26.

[83]: Tennessee v. Payne, 791 S.W.2d 10, 19 (1990), aff'd, 501 U.S. 808 (1991).

[84]: Weinstein was subpoenaed by the defense as a witness and therefore required to sit outside the courtroom. See Shapiro, supra note 52, at 215-16.

[85]: Id. at 319-20.

[86]: A narrow, incomplete answer might be that neither the defendant's mother nor the victim's father should be permitted to cry in front of the jury. But assuming an instruction from the judge not to cry, the question would still remain why the defendant's mother could testify, but not the victim's father.

[87]: See, e.g.,Ariz..Rev. Stat.  13- 4410(C),-4424, -4426; Md.Code (1957, 1993 Repl. Vol.), Art. 41, S 4-609(d); N.J. Stat. Ann. 2C:11-3c(6); Utah Code Ann. 76- 3-207(2). See generally State v. Muhammad, 678 A.2d 164, 177-78 (N.J. 1996) (collecting state cases upholding victim impact evidence in capital cases); Payne v. Tennessee, 501 U.S. at 821 (Congress and most states allow victim impact statements). These laws answer Bandes' brief allusion to the principle of nulla poena sine lege (the requirement of prior notice that particular conduct is criminal). See Bandes, supra note 37, at 396 n.177. Because murderers are now plainly on notice that impact testimony will be considered at sentencing, the principle is not violated. Murderers can also fully foresee the possibility of victim impact testimony. Murder is always committed against "a `unique' individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable." Payne v. Tennessee, 501 U.S. at 838 (Souter, J., concurring). Moreover, it is unclear the extent to which nulla poena sine lege is designed to regulate sentencing decisions. The principle is one that "condemns judicial crime creation," Bynum v. State, 767 S.W.2d 769, 773 n.5 (Tex. Ct. Crim. Apps. 1989), not crafting of appropriate penalties for a previously-defined crime like capital murder.

[88]: Professor Bandes and others also have suggested that the admission of victim impact statements would lead to offensive minitrials on the victim's character. See, e.g., Bandes, supra note 37, at 407-08. However, a recent survey of the empirical literature concludes that "[c]oncern that defendants would challenge the content of [victim impact statements] thereby subjecting victims to unpleasant cross examination on their statements has also not materialized"). Erez, Who's Afraid of the Victim?, supra note 69, at 6. In neither the McVeigh nor Nichols trials, for example, did aggressive defense attorneys cross-examine the victims at any length about the impact of the crime.

[89]: For general discussion of the harms caused by disparate treatment, see Lee Madigan & Nancy C. Gamble, The Second Rape: Society's Continued Betrayal of the Victim 97 (1989); Linda E. Ledray, Recovery from Rape 125 (2d ed. 1994); Marlene A. Young, A Constitutional Amendment for Victims of Crime: The Victims' Perspective, 34 Wayne L. Rev. 51, 58 (1987); Deborah P. Kelly, Victims, 34 Wayne L. Rev. 69, 72 (1987); Douglas Evan Beloof, A Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. ___ (forthcoming).

[90]: See generally Douglas Evan Beloof, Constitutional Civil Rights of Crime Victim Participation: The Emergence of Secondary Harm as a Rational Principle, in Beloof, supra note 124, at [10-18] (explaining concept of secondary harm); Spungeon, supra note 11, at 10 (explaining concept of secondary victimization).

[91]: Task Force on the Victims of Crime and Violence, Final Report of the APA Task Force on the Victims of Crime and Violence, 40 Am. Psych. 107 (1985).

[92]: Kilpatrick and Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 Wayne L. Rev. 7, 21 (1987) (collecting evidence on this point); Erez, Who's Afraid of the Victim?, supra note 69, at [9] ("[t]he cumulative knowledge acquired from research in various jurisdictions . . .. suggests that victims often benefit from participation and input"); Ken Eikenberry, The Elevation of Victims' Rights in Washington State: Constitutional Status, 17 Pepperdine L. Rev. 19, 41 (1989); see also

Jason N. Swensen, Survivor Says Measure Would Dignify Victims, Deseret News (Salt Lake City), Oct. 21, 1994, at B4 (noting anguish widow suffered when denied chance to speak at sentencing of husband's murderer).

[93]: Erez, Who's Afraid of the Victim?, supra note 69, at [10].

[94]: Id. see also S. Rep. 105-409 at 17. .

[95]: Erez, Who's Afraid of the Victim?, supra note 69, at [10] ("the majority of victims of personal felonies wished to participate and provide input, even when they thought their input was ignored or did not affect the outcome of their case. Victims have multiple motives for providing input, and having a voice serves several functions for them").

[96]: Technically the right is "not to be excluded." See infra notes 130-33 and accompanying text (explaining reason for this formulation).

[97]: See Mosteller, Unnecessary Amendment, supra note 18; see also Mosteller, Recasting the Battle, supra note 18, at 1698-1704.

[98]: S. Rep. 105-409 at 66 & n.44.

[99]: See Paul G. Cassell, The Victim's Right to Attend the Trial: The Emerging National Consensus (working paper - to be submitted for publication shortly); see also 1996 Sen. Judiciary Comm. Hearings, supra note 16, at 73-81 (explaining why victim's right to attend does not conflict with defendant's rights).

[100]: Mosteller, Recasting the Battle, supra note 18, at 1699.

[101]: Gannett Co. v. DePasquale, 443 U.S. at 428 (Blackmun, J., concurring in part and dissenting in part).

[102]: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980) (plurality opinion); see also William Pizzi, Rethinking Our System, 1999 Utah L. Rev. __ (forthcoming) (noting importance of victim right to attend trials).

[103]: See Mosteller, Recasting the Battle, supra note 18, at 1701 n.29.

[104]: Mosteller, Recasting the Battle, supra note 18, at 1699; see also Mosteller, Unnecessary Amendment, supra note 18.

[105]: Mosteller, Recasting the Battle, supra note 18, at 1700; see also Mosteller, Unnecessary Amendment, supra note 18.

[106]: See Eraz, supra note 201, at 29 (criticizing tendency of lawyers "to use an atypical or extreme case to make their point" and calling for public policy in the victims area to be based on more typical cases). Cf. Robert P. Mosteller, Popular Justice, 109 Harv. L. Rev. 487, 487 (1995) (critiquing George P. Fletcher's book With Justice for Some: Victims' Rights in Criminal Trials (1995) for "ignor[ing] how the criminal justice system operates in ordinary" cases).

[107]: See Cassell, supra note 99.

[108]: See S. Rep. 105-409 at 82 (additional views of Sen. Biden).

[109]: S. Rep. 105-409 at 61 (minority views of Sens. Leahy, Kennedy, and Kohl) ("there is also the danger that the victim's presence in the courtroom during the presentation of other evidence will cast doubt on her credibility as a witness . . . . . Whole cases . . . may be lost in this way").

[110]: Id. at 65 (minority views of Sens. Leahy, Kennedy, and Kohl) ("Accuracy and fairness concerns may arise . . . where the victim is a fact witness whose testimony may be influenced by the testimony of others").

[111]: S.J. Res. 44,  1.

[112]: S. Rep. 105-409, at 66 (minority view of Sens. Leahy, Kennedy and Kohl).

[113]: Mosteller, Unnecessary Amendment, supra note 18; Mosteller, Recasting the Battle, supra note 18, at 1706-07.

[114]: American Bar Association, Suggested Guidelines for Reducing Adverse Effects of Case Continuances and Delays on Crime Victims and Witnesses 4 (Dec. 1985).

[115]: S. Rep. 105-409 at 3; see also The Victims Right Amendment: Hearings Before the Senate Comm. on the Judiciary, 105th Cong., 2nd Sess. (Apr. 28, 1998) (statement of Paul G. Cassell at 17-18).

[116]: See, e.g., 1997 Sen. Judiciary Comm. Hearing, supra note 14, at 115-16; see also Paul G. Cassell & Evan S. Strassberg, Evidence of Repeated Acts of Rape and Child Molestation: Reforming Utah Law to Permit the Propensity Inference, 1998 Utah L. Rev. 145, 146.

[117]: See Cassell, supra note 36, at 1402-05.

[118]: Mosteller, Unnecessary Amendment, supra note 18.

[119]: See President's Task Force on Victims of Crime, Final Report 76 (1982).

[120]: Cf. Henderson, supra note 10 (conceding that "reasonableness" language might "allow judges to ferret out instances of dilatory tactics while recognizing the genuine need for time," but concluding that a constitutional amendment is not needed to confer this power on judges).

[121]: See, e.g., Scott Wallace, Mangling the Constitution: The Folly of the Victims' Rights Amendment, Wash. Post, June 28, 1996, at A21 (op-ed piece from special counsel with the National Legal Aid and Defender Association warning that Amendment would harm police and prosecutors).

[122]: See, e.g., Peter L. Davis, The Crime Victim's "Right" to a Criminal Prosecution: A Proposed Model Statute for the Governance of Private Criminal Prosecutions, 38 DePaul L. Rev. 329 (1989). Allowing victims to initiate their own prosecutions is no novelty, as it is consistent with the English common law tradition of private prosecutions, brought to the American colonies. See 1 James F. Stephen, A History of the Criminal Law of England 493-503 (1883); Shirley S. Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah L. Rev. 517, 521-22 (1985); Josephine Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 Pepp. L. Rev. 117, 125-26 (1984); Juan Cardenas. The Crime Victim in the Prosecutorial Process, 9 Harv. J.L. & Pub. Pol'y 358, 384 (1986); William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Amer. Crim. L. Rev. 649 (1976).

[123]: Beloof, supra note 89.

[124]: For cogent explication of the law, see Douglas Beloof, Victims in Criminal Procedure (1999); see also National Conference of the Judiciary on The Rights of Victims of Crime, Statement of Recommended Judicial Practices 10 (1983) (recommending victim participation in plea negotiations).

[125]: See, e.g., D. Buchner et. al., INSLAW, Evaluation of the Structured Plea Negotiation Project: Executive Summary (1984).

[126]: See, e.g., S. Rep. 105-409, at 66 (minority view of Sens. Leahy, Kennedy and Kohl).

[127]: See, e.g., People v. Stringham, 206 Cal.App.3d 184 (Cal. App. 1988); People v. Austin, 566 N.W.2d 547 (Mich. 1997).

[128]: See Beloof, supra note 124, at 462.

[129]: Sometimes the argument is cast not in terms of the Amendment diminishing prosecutorial resources, but rather victim resources. For example, Professor Henderson urges rejection of the Amendment on grounds that "we need to concentrate on things that aid recovery" by spending more on victim-assistance and similar programs. See Henderson, supra note 51, at [72-73]; see also Henderson, supra note 221, at 606. But there is no compatibility between passing the Amendment and expanding such programs. Indeed, if the experience at the state level is any guide, passage of the federal Amendment will (if anything) lead to an increase in resources devoted to victim-assistance efforts because of their usefulness in implementing the rights contained in the Amendment.

[130]: S. Rep. 105-409 at 63 (minority views of Sens. Leahy, Kennedy and Kohl).

[131]: See, e.g., S. Rep. 105-409 at 26.

[132]: For right to "be present" formulations, see, e.g., 42 U.S.C.  10606(b)(4); Alaska Const. art. I,  24; Ariz. Const., art. 2,  2.1(A)(3) & (4)l Idaho Const., art. I,  22(4) & (6); Ill. Const., art. I,  8.1; Ind. Const. Art. I,  13(b); Miss. Rev. St. 99-36-5; Mo. Const. art. I,  32(1); Mont. Const., art. 3,  26A(1); Nev. Const., art. I,  8(2); N.M. Const., art. 2,  24; N.C. Const., art. I,  37(a); Okla. Const., art. II,  34A; S.C. Const. Art. I,  24(A)(3); Utah Const. art. I,  29(1)(b); see also Ark. Stat. Ann. 16-41-101 (1994) (rule 616). For a right "to attend" formulation, see Mich. Const., art. I,  24(1).

[133]: An Alabama statute also uses this phrasing without reported deleterious consequences. See Ala. Code  15-14-54 (recognizing victim's right "not [to] be excluded from court or counsel table during the trial or hearing or any portion thereof . . . .").

[134]: See 42 U.S.C. 10608(a) (authorizing close circuit broadcast of trials whose venue has been moved more than 500 miles). This provision was used to broadcast proceedings in the Oklahoma City bombing trial in Denver back to Oklahoma City

[135]: See, e.g., NIJ Study, supra note 67, at 59 (right to allocute in California "has not resulted in any noteworthy change in the workload of either the courts, probation departments, district attorneys' offices or victim/witness programs"); id. at 69 (no noteworthy change in the workload of California parole board); Erez, Victim Participation, supra note 69, at 22 ("Research in jurisdictions that allow victim participation indicates that including victims in the criminal justice process does not cause delays or additional expense"); see also Davis et al., supra note 68, at 69 (expanded victim impact program did not delay dispositions in New York).

[136]: National District Attorneys Association, National Prosecution Standards  26.1 at 92 (2d ed. 1991).

[137]: See National Victim Center, 1996 Victims' Rights Sourcebook: A Compilation and Comparison of Victims' Rights Legislation 24 (collecting statutes)

[138]: S. Rep. 105-409 at 62 (minority views of Sens. Leahy, Kennedy, and Kohl).

[139]: The Arizona Amendment extends notification rights to all crime victims, not just victims of violent crime as provided in the federal amendment. Compare Ariz. Const.  2.1(A)(3);  2.1(C) with S.J. Res. 3 (1999).

[140]: See Richard M. Romley, Constitutional Rights for Victims: Another Perspective, The Prosecutor, May 1997, at 7 (noting modest cost of the state amendment in Phoenix); Statement of Barbara LaWall, Pima County Prosecutor, in A Proposed Constitutional Amendment to Protect Victims of Crime: Hearings Before the Sen. Judiciary Comm., 105th Cong., 1st Sess. 97 (1997) (noting cost has not been a problem in Tucson).

[141]: Congressional Budget Office Report on S.J. Res. 44, reprinted in S. Rep. 105-409 at 40.

[142]: Mosteller, The Victims' Rights Amendment: The Unnecessary Amendment, 1999 Utah L. Rev. __ (forthcoming).

[143]: Id.; see also Mosteller, Recasting the Battle, supra note 18 (developing similar argument).

[144]: Tribe & Cassell, supra note 25, at B5. See, e.g., 1996 Sen. Judiciary Comm. Hearings, supra note 16, at 109 (statement of Steven Twist); id. at 30 (statement of John Walsh); id. at 26 (statement of Katherine Prescott).

[145]: See Tribe & Cassell, supra note 25, at B5.

[146]: 1996 House Judiciary Comm. Hearings, supra note 15, at 147.

[147]: Mosteller, Unnecessary Amendment, supra note 18.

[148]: See, e.g., 1998 Sen. Judiciary Committee Hearings [not yet in print] (statement of Marlene Young).

[149]: 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 64 (statement of Attorney General Reno).

[150]: New Directions from the Field, supra note 5, at 10.

[151]: Nat'l Inst. of Justice, supra note 7, 151, at 1.

[152]: Id. at 4 exh. 1.

[153]: National Victim Center, Statutory and Constitutional Protection of Victims' Rights: Implementation and Impact on Crime Victims: Sub-Report on Comparison of White and Non-White Crime Victim Responses Regarding Victims' Rights 5 (1997).

[154]: See Mosteller, Unnecessary Amendment, supra note 18.

[155]: Nat'l Inst. of Justice, supra note 7, 151, at 11.

[156]: See Mosteller, Unnecessary Amendment, supra note 18 (citing McQuade to Travis memorandum).

[157]: See Nat'l Inst. Of Justice, Guide to Writing Reports for NIJ: Policy, Requirements, and Procedures at 3 (noting peer review process).

[158]: Nat'l Inst. of Justice, supra note 7, 151, at 3.

[159]: See, e.g., Hildenbrand & Smith, supra note 69, at 112 (prosecutors and victims consistently report that victims "not usually" given notice or consulted in a significant proportion of cases); Erez, Victim Participation, supra note 69, at 26 (finding victims rarely informed of right to make statements and victim impact statements not always prepared).

[160]: United States v. Leon, 468 U.S. 897, 907 n.6 (1984); see also Craig M. Bradley, The Failure of the Criminal Procedure Revolution 43-44 (1993).

[161]: FBI estimates suggest an approximate total of about 2,303,600 arrests for violent crimes each year, broken down as follows: 729,000 violent crimes within the crime index (murder, forcible rape, robbery, aggravated assault), 1,329,000 other assaults, 95,800 sex offenses, and 149,800 offenses against family and children. U.S. Dep't of Justice, Fed. Bureau of Investigation, Uniform Crime Reports: Crime in the United States - 1996 at 214 tbl.29 (1997). A rough estimate is that about two-thirds of these cases (66%) will be accepted for prosecution, either within the adult or juvenile system. See Brain Forst, Prosecution and Sentencing, in Crime 363, 36(James Q. Wilson & Joan Petersilia eds. 1995). Assuming the Amendment would benefits 2% of the victims within these charged cases produces the figure in text. For further discussion of issues surrounding such extrapolations, see Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U.L. Rev. 387, 438-40; Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And From Miranda, 88 J. Crim. L. & Criminology 497, 514-16 (1998).

[162]: Mosteller, Unnecessary Amendment, supra note 18, at [7].

[163]: See S.J. Res. 3,  2 (1999). See generally Cassell, supra note 36, at 1418- 21 (discussing damage actions under victims' rights amendments).

[164]: See U.S. Const., art. V.

[165]: Cf. 1 Bruce Ackerman, We The People passim (1990) (discussing "constitutional moments").

[166]: Erez, Victim Participation, supra note 69, at 29; see also William Pizzi, Trials Without Truth (1999) (discussing problems with American trial culture); Pizzi, supra note 102, at [11] (noting trial culture emphasis on winning and losing that may overlook victims); William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37, 41 (1996) ("So poor is the level of communication that those within the system often seem genuinely bewildered by the victims' rights movement, even to the point of suggesting rather condescendingly that victims are seeking a solace from the criminal justice system that they ought to be seeking elsewhere")

[167]: Mosteller, Unneccesary Amendment, supra note 18.

[168]: Id. at 4.

[169]: NIJ Study, supra note 7, at 10.

[170]: See supra note 9 (noting minority victims least likely to be afforded rights today). Cf. Henderson, supra note 51 (criticizing "lottery approach to affording victims' rights).

[171]: See, e.g., infra notes 182-226 and accompanying text (discussing victims rights in Oklahoma City bombing case).

[172]: Mosteller, Unnecessary Amendment, supra note 18.

[173]: Id. at 7-8.

[174]: Cf. Yale Kaimsar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Yale Kamisar, et al., Criminal Justice in Our Time 19 (1965) (famously developing this analogy in the context of police interrogation).

[175]: See Henderson, supra note 51. Hopefully this situation may improve with the publication of Professor Beloof's law school casebook on victim's rights, see Beloof, supra note 124, which may encourage more training in this area.

[176]: See Susan Bandes, Victim Standing, 1999 Utah L. Rev. ___ (forthcoming); see also Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1991); Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227 (1990).

[177]: As shown supra, victims rights do not actually conflict with defendant's rights. Frequently, however, it is the defendant's mere claim of alleged conflict, not carefully considered by the trial court, that ends up producing (along with the other contributing factors) the denial of victims rights.

[178]: See Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. Chi. L. Rev. 1 (1990); see also Erez, Perspectives of Legal Professionals, supra note 69, at 20 (noting reluctance of South Australian judges to rely on victim evidence because of appeal risk).

[179]: See Paul G. Cassell, Fight for Victims' Justice is Going Strong, Deseret News, July 10, 1996, at A7 (illustrating this problem with uncertain Utah case law on victim's right to be present).

[180]: Mosteller, Unnecessary Amendment, supra note 18.

[181]: See S.J. Res. 3,  2.

[182]: Cf. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.).

[183]: See e.g., Henderson, supra note 51.

[184]: See id. (Conceding this point).

[185]: United States v. McVeigh, No. 96-CR-68 (D. Colo.), 6/26/96 Tr. at 5.

[186]: See Fed. R. Evid. 615.United States v. McVeigh, 6/26/96 Tr. at 4-5.

[187]: See 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 73 (statement of Marsha Kight).

[188]: Motion of Marsha and Tom Kight et al. and the National Organization for Victim Assistance Asserting Standing to Raise Rights Under the Victims' Bill of Rights and Seeking Leave to File a Brief as Amici Curiae, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Sept. 30, 1996). I represented a number of the victims on this matter on a pro bono basis, along with able co-counsel at Robert Hoyt, Arnon Siegel, Karan Bhatia, and Reg Brown at the Washington, D.C., law firm of Wilmer, Cutler, and Pickering and Sean Kendall of Boulder, Colorado. For a somewhat fuller recounting of the victims' issues in the case, see my statement in 1997 Sen. Judiciary Comm. Hearing, supra note 14, at 106-13.

[189]: 42 U.S.C.  10606(b)(4). The victims also relied on a similar provision found in the authorization for closed circuit broadcasting on the trial, 42 U.S.C.  10608(a), and on a First Amendment right of access to public court proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

[190]: United States v. McVeigh, No. 96-CR-69 D. Colo.), 10/4/96 Tr.

[191]: Id. at 499-500.

[192]: Id. at 519.

[193]: Id. at 517

[194]: Id. at 519.

[195]: Petition for Writ of Mandamus, Kight et al. v. Matsch, No. 96-1484 (10th Cir. Nov. 6, 1996).

[196]: United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997).

[197]: Id. at 334.

[198]: Id. at 335.

[199]: Id. at 329-35.

[200]: Order, United States v. McVeigh, No. 96-1469 (10th Cir. Mar. 11, 1997).

[201]: See Br. of Amici Curiae Washington Legal Foundation and United States Senators Don Nickles and 48 other members of Congress, United States v. McVeigh, No. 96-1469 (10th Cir. 1997) (warning that decision meant victims of federal crimes will never be heard for violations of their rights); Br. of Amici curiae States of Oklahoma, Colorado, Kansas, New Mexico, Utah, and Wyoming Supporting the Suggestion for Rehearing and the Suggestion for Rehearing En Banc by the Oklahoma City Bombing Victims and the United States, United States v. McVeigh, No. 96-1469 (10th Cir. Feb. 14, 1997) (warning decision created "an `important problem' for the administration of justice within the Tenth Circuit"); Br. of Amici Curiae National Victims Center, Mothers Against Drunk Driving, the National Victims' Constitutional Amendment Network, Justice for Surviving Victims, Inc., Concerns of Police Survivors, Inc., and Citizens for Law and Order, Inc., in Support of Rehearing, United States v. McVeigh, No. 96-1469 (10th Cir. Feb. 17, 1997) (warning that decision will "preclude anyone from exercising any rights afforded under the Victims' Bill of Rights").

[202]: 142 Cong. Rec. H1050 (daily ed. Mar. 18, 1997) (statement of Rep. McCollum).

[203]: Id. at H1068 (daily ed. Mar. 19, 1997).

[204]: Id. at S2509 (daily ed. Mar. 19, 1997).

[205]: Pub. L. 105-6, codified as 18 U.S.C.  3510.

[206]: Statement by the President, Mar. 20, 1997.

[207]: Memorandum of Marsha Kight et al. on the Victims Rights Clarification Act of 1997, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Mar. 21, 1997).

[208]: Motion of Marsha Kight et al. for Hearing, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Mar. 21, 1997).

[209]: Order Amending Order Under Rule 615, United States v. McVeigh, No. 96-CR- 68-M (D. Colo. Mar. 25, 1997).

[210]: Id.

[211]: Id. at 4-5.

[212]: Order Declaring Motion Moot, United States v. McVeigh, No. 96-CR-68-M (D. Colo. Mar. 25, 1997).

[213]: See 1997 Sen. Judiciary Comm. Hearing, supra note 14 (statement of Paul Cassell); id. (statement of Marsha Kight).

[214]: See 1997 Sen. Judiciary Comm. Hearing, supra note 14 (statement of Paul Cassell).

[215]: Request of the Victims of the Oklahoma City Bombing and the National Organization for Victim Assistance for Clarification of the Order Amending the Order Under Rule 615, United States v. McVeigh, No. 96-CR-68-M (Apr. 4, 1997).

[216]: Id. at 2.

[217]: Motion of the Victims of the Oklahoma City Bombing to Reassert the Motion for a Hearing on the Application fo the Victim Rights Clarification Act of 1997, United States v. McVeigh, No. 96-CR-M (June 2, 1997).

[218]: See Hearing on Victims Rights Clarification Act, U.S. v. McVeigh, available in 1997 WL 290019, at *7 (concluding that statute does not "creates standing for the persons who are identified as being represented by counsel in filing that brief").

[219]: See, e.g., Examination of Diane Leonard, U.S. v. McVeigh, June 4, 1997, available in 1997 WL 292341.

[220]: H.R. Rep. 105-28 at 10 (Mar. 17, 1997) (emphasis added). Supporting this statement was the fact that, while the Victims Bill of Rights apparently barred some civil suits by victims, 42 U.S.C.  10606(c), the new law contained no such provision. This was no accident. As the Report of the House Judiciary Committee pointedly explained, "The Committee points out that it has not included language in this statute that bars a cause of action by the victim, as it has done in other statutes affecting victims' rights." H.R. Rep. 105-28 at 10 (Mar. 17, 1997).

[221]: U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Violent Crime in the United States 8 (March 1991). Cf. Lynn Henderson, Co-Opting Compassion: The Federal Victim's Rights Amendment, 10 St. Thomas L. Rev. 579 (1998) (noting many crime victims come from disempowered groups).

[222]: S.J. Res. No. 3,  1, 106th Cong., 1st Sess. (1999).

[223]: Id.

[224]: Id.,  2.

[225]: Mosteller, Unnecessary Amendment, supra note 18.

[226]: S. Rep. 105-409 at 56 (minority view of Sens. Leahy, Kennedy, and Kohl).

[227]: Proposals to Provide Rights to Victims of Crime: Hearings Before the House Judiciary Comm., 105th Cong., 1st Sess. 96 (1997).

[228]: See 1996 Sen. Judiciary Comm. Hearings, supra note 16, at 101 (statement of Bruce Fein).

[229]: Id. at 100. For similar views, see, e.g., Cluttering the Constitution, N.Y. Times, July 15, 1996; Stephen Chapman, Constitutional Clutter: The Wrongs of the Victims' Rights Amendment, Chi. Trib., Apr. 20, 1997.

[230]: Tribe & Cassell, supra note 25, at B7.

[231]: U.S. Const. amends. XIV, XV, XIX, XXVI.

[232]: 448 U.S. 555 (1980).

[233]: See notes 182-226 supra and accompanying text.

[234]: Compare United States v. McVeigh, 918 F. Supp. 1452, 1465-66 (W.D. Okl. 1996) (recognizing press interest in access to documents) with United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997) (victims do not have standing to raise First Amendment challenge to order excluding them from trial); see also United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (recognizing First Amendment interest of the press in access to documents, but finding sufficient findings made to justify sealing order).

[235]: In this way, the Victims' Amendment expands First Amendment liberties, not detracts from them. But cf. Henderson, supra note 51 (suggesting that victims' rights arguably could affect First Amendment liberties, but conceding that "no one has argued for a balancing of victims' rights against the rights of the press . . .").

[236]: Id.

[237]: See id.

[238]: Beloof, supra note 89; see also id. at Appdendix A (collecting numerous examples from around the country). See generally Beloof, supra note 124 (legal case book replete with examples of victims' rights in the process).

[239]: Henderson, supra note 51 (emphasis in original ; see also 1996 House Judiciary Comm. Hearings, supra note 6 (statement of Roger Pilon (Amendment has the "feel" of listing "rights not as liberties that government must respect as it goes about its assigned functions but as `entitlements that the government must affirmatively provide"); The Nation, Feb. 10, 1997, at 16 (Amendment "[u]pends the historic purpose of the Bill of Rights").

[240]: See Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1971).

[241]: See Beloof, supra note 89.

[242]: Perhaps some might quibble with this characterization as applied to a victims' right to an order of restitution, contending that this is a right solely directed against deprivations perpetrated by private citizens. However, the right to restitution is also a right against government, as it is a right to "an order of restitution," an order that can only be provided by the courts. In any event, even if the restitution right is somehow regarded as implicating private action, it should be noted that the Constitution already addresses private conduct. The Thirteenth Amendment forbids "involuntary servitude," U.S. Const. amend. XIII, a provision that encompasses private violation of rights. See, e.g., United States v. Kozminski, 487 U.S. 931 (1988). See generally Henderson, supra note 51 (noting "good arguments" that the Thirteenth Amendment "applies to individuals"); Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359 (1992) (discussing contours of Thirteenth Amendment).

Similarly, some might argue that the Constitution does not generally require that the government give citizens notice of their rights. Whatever the merits of this claim as a general matter, it has little application to the criminal justice system. To cite but one example, the Sixth Amendment right to counsel, requires notice to criminal defendants, indeed express notice. See Faretta v. California, 422 U.S. 806, 835-36 (1975). Along the same lines it would be unheard of to schedule a trial without providing notice to a criminal defendant. Thus notice to victims simply follows in these well trodden paths.

[243]: See, e.g., Henderson, supra note 51; Mosteller, supra note 18; 1996 Senate Judiciary Comm. Hearings, supra note 16 (statement of Bruce Fein).

[244]: See Andrew J. Karmen, Who's Against Victims' Rights? The Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice, 8 St. John's J. of Legal Commentary 157, 162-69 (1992).

[245]: See Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting); see also Vincent Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449 (1985).

[246]: See Karmen, supra note 244 (explaining why criminal justice professionals are particularly unlikely to honor victims' rights for marginalized groups).

[247]: National Victim Center, Statutory and Constitutional Protection of Victims' Rights: Implementation and Impact on crime Victims - Sub-Report: Comparison of White and Non-White Crime Victim Responses Regarding Victims' Rights 5 (June 5, 1997).

[248]: 1996 Senate Judiciary Comm. Hearings, supra note 16, at 101 (statement of Bruce Fein).

[249]: U.S. Dep't of Justice, Office for Victims of Crime, New Directions from the Field: Victims' Rights and Services for the 21st Century 14 (1998); see Jeffrey A. Cross, Note, The Repeated Sufferings of Domestic Violence Victims Not Notified of Their Assailant's Pre-Trial Release from Custody: A Call for Mandatory Domestic Violence Victim Notification Legislation, 34 J. Family L. 915 (1996).

[250]: See supra notes 89-95 and accompanying text.

[251]: 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 110 (statement of Paul Cassell) (quoting victim).

[252]: See supra notes 90-92 and accompanying text.

[253]: Letter from George P. Kazen, Chief U.S. District Judge, Chair, Comm. on Criminal Law of the Judicial Conference of the United States. to Sen. Edward M. Kennedy, Senate Comm. on the Judiciary, at 2 (Apr. 17, 1997), quoted in S. Rep. No. 105-409 at 53.

[254]: 1996 House Judiciary Comm. Hearings, supra note 15, at 147.

[255]: See Cluttering the Constitution, NY Times, July 15, 1996, at A12.

[256]: See S. Rep. No. 105-409 at 22-37.

[257]: See S. Rep. 105-409 at 50-51 (dissenting views of Sen. Leahy, Kennedy, and Kohl)..

[258]: See, e.g., U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 790 (1995).

[259]: U.S. Const. amend. VI ("the accused shall enjoy the right to a . . . trial[] by an impartial jury").

[260]: See Baldwin v. New York, 399 U.S. 66 (1970).

[261]: See McKeiver . Pennsylvania, 403 U.S. 528 (1971).

[262]: See Thompson v. Utah, 170 U.S. 343 (1898).

[263]: Holmes.

[264]: Critics of the Amendment have been forced to use improbable examples see suggest that the Amendment will create unintended difficulties. See 1997 Sen. Judiciary Comm. Hearings, supra note 14 (statement of Paul Cassell). It is interesting on this score to note that the law professors opposed to the Amendment were unable to cite any real world examples of language in the many state victims rights amendments that has produced serious unintended consequences. See 1997 Letter from Law Professors, in 1997 Sen. Jud. Comm. Hearings, supra; 1996 Letter from Law Professors, in 1996 House Jud. Comm Hearings, supra note 15.

[265]: S.J. Res. 44,  3.

[266]: 1997 Law Profs Letter, reprinted in 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 140, 141; see also Mosteller, Recasting the Battle, supra note 18.

[267]: 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 159.

[268]: See, e.g., Donald A. Dripps, Foreword: Against Police Interrogation - And the Privilege Against Self-Incrimination, 78 J. Crim. L. & Criminology 699 (1988); Barry Latzer, Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation, 87 J. Crim. L. & Criminology 63 (1996).

[269]: If federalism were an important concern of the law professors, one would also expect to seem them supporting language in the Amendment guaranteeing flexibility for the states. Yet the professors found fault with language in any earlier version of the Amendment that gave both Congress and the states the power to "enforce" the Amendment, apparently encouraging the deletion of this language. See 1997 Law Profs Letter in 1997 Sen. Judiciary Comm. Hearings, supra note 14, at 141.

[270]: National Governors Association, Policy 23.1 (effective winter 1997 to winter 1999).

[271]: S.J. Res. 3,  1 (1999) (emphasis added).

[272]: See Beloof, supra note 124, at 41-43.

[273]: See United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir.), cert. denied, 498 U.S. 817 (1990).

[274]: U.S. Const. Amend. V; S.J. Res. 3 (1999), preamble; see also The Federalist No. 39.

[275]: Cf. Mosteller, Unnecessary Amendment, supra note 18 (noting that "unfunded mandates" argument is "arguably inapposite for a constitutional amendment that must be supported by three fourths of the states since the vast majority of state would have approved imposing the requirement on themselves"); Richard B. Bernstein, Amending America 220 (1993) (recalling defeat of the Equal Rights Amendment in the states and observing "[t]he significant role of state governments as participants in the amending process is thriving").

[276]: See especially the views of the dissenting Senators in this Committee's Report and Bandes, supra note 176; Mosteller, Unnecessary Amendment, supra note 18; Henderson, supra note 51

[277]: Erez, Victim Participation, supra note 69, at 28.

[278]: Id. at 29; see also Erez, Perspectives of Legal Professionals, supra note 69, at [29] (noting similar barriers to implementing victims reforms in South Australia); Edna Erez & Kathy Laster, Neutralizing Victim Reform: Legal Professionals' Perspectives on Victims and Impact Statements, (unpublished manuscript on file with author Dec. 16, 1998).

[279]: For a good example of the standard criminal law curriculum, see Ronald N. Boyce & Rollin M. Perkins, Criminal Law and Procedure: Cases and Materials (7th ed. 1989).

[280]: Yale Kamisar et al., Modern Criminal Procedure: Cases, Comments and Questions (8th ed. 1994).

[281]: See id. at 60 (discussing Cal. Const., art. I,  28, the "truth-in- evidence" provision).

[282]: One hopeful sign of impending change is the publication of an excellent casebook addressing victims in criminal procedure. See Beloof, supra note 89.

[283]: Payne, 501 U.S. at 867 (Stevens, J., dissenting).

[284]: Id. at 867 (Stevens, J., dissenting).

[285]: Gewirtz, supra note 76, at 893.

[286]: See, e.g., Booth v. Maryland, 482 U.S. 496 (1987) (rejecting victim impact statements); South Carolina v. Gathers, 490 U.S. 805 (1989) (same).

[287]: Thomas Jefferson, Letter to C.W.F. Dumas, Sept. 1787, in John P. Foley ed., The Jeffersonian Cyclopidia (1900).

Attachment A - Biography

I am a Professor of Law at the University of Utah College of Law, where I teach victims rights and criminal procedure among other subjects. I have written and lectured on the subjects of crime victims rights. See, e.g., Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's Victims' Rights Amendment, 1994 Utah L. Rev.1373. I serve on the executive board of the National Victim Constitutional Amendment Network, an organization devoted to bringing constitutional protection to crime victims across the country.

I am also a member of the Utah Council on Victims, the statewide organization in Utah responsible for monitoring the treatment of crime victims in the courts of our state. In 1994, I was chair of the Constitutional Amendment Subcommittee of the Council, where I helped to draft and obtain passage of the Utah Victims Rights Amendment. I have also represented crime victims in legal actions to enforce their rights, including several actions on behalf of the victims of the Oklahoma City bombing, as discussed in more detail in my testimony.

By way of further background, from 1988 to 1991, I served as an Assistant United States Attorney in the Eastern District of Virginia, where I was responsible for prosecuting federal criminal cases and working with the victims in those cases. From 1986 to 1988, I served as an Associate Deputy Attorney General at the United States Department of Justice, handling various matters relating to criminal justice. I have also served as a law clerk to then-Judge Antonin Scalia and Chief Justice Warren E. Burger. I graduated from Stanford Law School in 1984, after serving as President of the Stanford Law Review.