Victims Rights Amendment: A Proposal to Amend the United States Constitution in the 108th Congress

CRS Report for Congress
Victims’ Rights Amendment:
A Proposal to Amend the United States
th
Constitution in the 108 Congress
Updated April 16, 2004
Charles Doyle
Senior Specialist
American Law Division


Congressional Research Service ˜ The Library of Congress

Victims’ Rights Amendment: A Proposal to Amend the
United States Constitution in the 108th Congress
Summary
Thirty-three states have added a victims’ rights amendment to their state
constitutions. S.J.Res. 1/H.J.Res. 48/H.J.Res. 10 would add a victims’ rights
amendment to the United States Constitution. The amendment is identical to
proposals offered in the 107th Congress (S.J.Res. 35/H.J.Res. 88/H.J.Res. 91) and has
been endorsed by the President. Similar proposals date back to the 104th Congress.
The proposed amendment grants the victims of state and federal violent crimes
the right:
- to reasonable and timely notice of public proceedings relating to the crime;
- to reasonable and timely notice of the release or escape of the accused;
- not to be excluded from such public proceedings;
- reasonably to be heard at public release, plea, sentencing, reprieve, and pardon
proceedings; and
- to adjudicative decisions that give due consideration to victims’ interests in
their safety, in avoiding unreasonable delay and to consideration of their just
and timely claims for restitution from the offender.
The rights may not be restricted except to the extent dictated by a substantial
interest in public safety or the administration of criminal justice or by compelling
necessity. Only victims and their representatives may enforce the rights, but they
may not do so through a claim for damages or request to reopen a completed trial.
Congress is otherwise empowered to enact legislation for the amendment’s
enforcement.
The proposed amendment is the product of efforts to reconcile victims’ rights,
the constitutional rights of defendants, and prosecutorial prerogatives. The hearings
on current and past proposals and three Senate Judiciary Committee reports (S.Rept.
108-191; S.Rept. 105-409; S.Rept. 106-254) provide insight as to the intent of
language used and proposed language implicitly rejected.
Proponents and their critics disagree over the need for the proposed
Amendment, its meaning, its propriety, its costs, and its effect on federalism.
This report appears in abridged form under the title Victims’ Rights Amendment:
A Sketch of a Proposal in the 108th Congress to Amend the United States
Constitution, CRS Report RS21434.



Contents
In troduction ......................................................1
Text of the Proposed Amendment.....................................2
Analysis .........................................................3
Purpose ......................................................3
The Need for Greater Balance................................3
The Need for Uniformity....................................6
Restoration of Victims’ Historic Rights........................7
Inadequacy of State Law Alternatives..........................9
Inadequacy of Federal Statutory Alternatives...................10
Overview ...................................................11
Preemptive and Amending Impact................................12
Victims’ Rights v. Defendants’ Rights............................14
Contemporary Practices....................................14
Past Practices............................................14
Amendment in the 108th Congress............................15
Victims of Crime.............................................16
Contemporary Practices....................................17
Past Proposals...........................................19
Amendment in the 108th Congress............................21
Notice ......................................................26
Contemporary Practices....................................27
Past Proposals...........................................28
Amendment in the 108th Congress............................28
Not to Be Excluded...........................................35
Contemporary Practices....................................36
Past Proposals...........................................37
Amendment in the 108th Congress............................38
To Be Heard.................................................40
Contemporary Practices....................................41
Past Proposals...........................................47
Amendment in the 108th Congress............................48
Victim Safety................................................53
Contemporary Practices....................................54
Past Proposals...........................................54
Amendment in the 108th Congress............................54
Speedy Trial.................................................56
Contemporary Practices....................................56
Past Proposals...........................................57
Amendment in the 108th Congress............................58
Restitution ..................................................59
Contemporary Practices....................................59
Past Proposals...........................................60
Amendment in the 108th Congress............................61
Legislative Authority..........................................62
Contemporary Practices....................................62



Amendment in the 108th Congress............................67
Enforcement .................................................71
Contemporary Practices....................................72
Past Proposals...........................................73th
Amendment in the 108 Congress............................75
Effective Date...............................................78
Contemporary Practices....................................78
Past Proposals...........................................78th
Amendment in the 108 Congress............................79



Victims’ Rights Amendment:
A Proposal to Amend the United States
th
Constitution in the 108 Congress
Introduction
A victims’ rights amendment to the United States Constitution has been
introduced in three essentially identically worded resolutions in the 108th Congress:
S.J.Res. 1, H.J.Res. 48, and H.J.Res. 10.1 The Amendment is one which the
President has endorsed both in this Congress and the 107th Congress.2 Comparable
provisions different in word if not in spirit were offered in earlier Congresses.3 This


1 S.J.Res. 1 and H.J.Res. 48 are identical. H.J.Res. 10 differs only in that S.J.Res. 1/H.J.Res.
48 places the provision for effective date of the amendment following ratification in section

5 and H.J.Res. 10 places it in the enacting clause. S.J.Res. 1(Sens. Kyl and Feinstein)


and H.J.Res. 10 (Rep. Royce) were introduced on the first day of the session; H.J.Res. 48
(Rep. Chabot) on April 10, 2003.
This report refers to the resolutions collectively (and the identical resolutions in theth
107 Congress) as the Amendment and to resolutions from earlier Congresses as either the
proposal or the proposals. The particulars of any bills to establish greater victims’ rights byth
statute, e.g., S. 805 (108 Congress), are beyond the scope of this report.
2 “I announce my support for the bipartisan Crime Victims’ Rights amendment to the
Constitution of the United States,” President Bush, President Calls for Crime Victims’
Rights Amendment (April 16, 2000), available at [http://www.whitehouse.gov/news/releases
/2002/04/20002416-1.html]; President Bush, National Crime Victims’ Rights Week, 2003:
A Proclamation, available at [http://www.ojp.usdoj.gov/ovc/ncvrw/2003/bushproc.htm].
3 See, in the 104th Congress: S.J.Res. 52, S.J.Res. 65, H.J.Res. 173, and H.J.Res. 174; A
Proposed Constitutional Amendment to Establish a Bill of Rights for Crime Victims:
Hearing Before the Senate Comm. on the Judiciary (Senate Hearing I), 104th Cong., 2d
Sess. (1996) – in 105th Congress: S.J.Res. 6, S.J.Res. 44, H.J.Res. 71, and H.J.Res. 129;
S.Rept. 105-409 (1998); Proposals to Provide Rights to Victims of Crime: Hearing Before
the House Comm. on the Judiciary (House Hearing II), 105th Cong., 1st Sess. (1997); A
Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the
Senate Comm. on the Judiciary (Senate Hearing II), 105th Cong., 1st Sess. (1997) – in the
106th Congress: S.J.Res. 3, and H.J.Res. 64; S.Rept. 106-254 (2000); A Proposed
Constitutional Amendment to Protect Crime Victims: Hearing Before the Senate Comm. on
the Judiciary (Senate Hearing III), 106th Cong., 1st Sess. (1999), and H.J.Res. 64,
Proposing An Amendment to the Constitution of the United States to Protect the Rights of
Crime Victims: Hearing Before the Subcommittee on the Constitution of the House Judiciary
Comm., 106th Cong., 2d Sess. (2000) (House Hearing III), available at,th
[http://www.house.gov/judiciary]; – in the 107 Congress: S.J.Res. 35, H.J.Res. 88, and
H.J.Res. 91; Federal Victims Rights Amendment: Hearing Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 107th Cong., 2d Sess. (2002)(House
(continued...)

is a brief discussion of the content of the Amendment and of some of the issues it
raises. 4
Text of the Proposed Amendment
Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled, (two-thirds of each House concurring therein), That
the following article is proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as part of the Constitution
when ratified by the legislatures of three-fourths of the several States, and which
shall take effect on the 180th day after ratification of this article:5
Article–
SECTION 1. The rights of victims of violent crime, being capable of protection
without denying the constitutional rights of those accused of victimizing them,
are hereby established and shall not be denied by any State or the United States
and may be restricted only as provided in this article.
SECTION 2. A victim of violent crime shall have the right to reasonable and
timely notice of any public proceeding involving the crime and of any release
or escape of the accused; the rights not to be excluded from such public
proceeding and reasonably to be heard at public release, plea, sentencing,
reprieve, and pardon proceedings; and the right to adjudicative decisions that
duly consider the victim’s safety, interest in avoiding unreasonable delay, and
just and timely claims to restitution from the offender. These rights shall not be
restricted except when and to the degree dictated by a substantial interest in
public safety or the administration of criminal justice, or by compelling
necessity.


3 (...continued)
Hearing IV), available at, [http://www.house.gov/judiciary]; S.J.Res. 35-The Crime Victims’
Rights Amendment: Hearing Before the Subcomm. on Constitution, Federalism, and
Property Rights of the Senate Comm. on the Judiciary, 107th Cong., 2d Sess. (2002)(Senateth
Hearing IV), available at [http://judiciary.senate.gov]; and – in the 108 Congress: H.J.Res.

10, H.J.Res. 48, S.J.Res. 1; S.Rept. 108-191; Crime Victims Constitutional Amendment:


Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary ,thst

108 Cong., 1 Sess. (2003)(House Hearing V), available at, [http://www.house. gov/


judiciary]; A Proposed Constitutional Amendment to Protect Crime Victims, S.J.Res. 1:thst
Hearing Before the Senate Comm. on the Judiciary; 108 Cong., 1 Sess. (2003)(Senate
Hearing V), available at [http://judiciary.senate.gov]. At this writing pagination for the
Senate hearings during the 108th Congress is not yet available.
4 For a more extensive background discussion see, Victims’ Rights Amendment: Background
& Issues Associated With Proposals to Amend the United States Constitution, CRS Report

97-735 (April 2000); for an analysis of proposals made during the 106th Congress see,


Victims’ Rights Amendment: Proposals to Amend the United States Constitution in the 106th
Congress, CRS Report RL30525 (May 12, 2000).
5 The language in italics at the end of the enacting clause is found only in H.J.Res. 10.

SECTION 3. Nothing in this article shall be construed to provide grounds for
a new trial or to authorize any claim for damages. Only the victim or the
victim’s lawful representative may assert the rights established by this article,
and no person accused of the crime may obtain any form of relief hereunder.
SECTION 4. The Congress shall have the power to enforce by appropriate
legislation this article. Nothing in this article shall affect the President’s
authority to grant reprieves or pardons.
SECTION 5. This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission to the States
by the Congress. This article shall take effect on the 180th day after the date of
its ratification.6
Analysis
Purpose
Proponents of the Amendment have articulated five reasons for passage of the
Amendment:
!a constitutional amendment will balance the scales of justice;
!a constitutional amendment will fix the patchwork of victims’ rights
laws;
!a constitutional amendment will restore rights that existed when the
Constitution was written;
!a constitutional amendment is necessary because state law is
insufficient; and
!a constitutional amendment is necessary because federal statutory
law is insufficient, 149 Cong.Rec. S82-4 (daily ed. Jan. 7, 2003).
The Need for Greater Balance.
“The scales of Justice are imbalanced. The U.S. Constitution, mainly
through amendments, grants those accused of crime many constitutional rights,
such as a speedy trial, a jury trial, counsel, the right against self-incrimination,
the right to be free from unreasonable searches and seizures, the right to
subpoena witnesses, the right to confront witnesses, and the right to due process
under law.
“The Constitution, however, guarantees no rights to crime victims. For
example, victims have no right to be present, no right to be informed of hearings,


6 This last italicized sentence appears only in S.J.Res. 1/H.J.Res. 48.

no right to be heard at sentencing or at a parole hearing, no right to insist on
reasonable conditions of release to protect the victim, no right to restitution, no
right to challenge unending delays in the disposition of their case, and no right
to be told if they might be in danger from release or escape of their attacker.
This lack of rights for crime victims has caused many victims and their families
to suffer twice, once at the hands of the criminal, and again at the hands of the
justice system that fails to protect them. The Crime Victims’ Rights Amendment
would bring balance to the judicial system by giving victims of violent crime the
rights to be informed, present, and heard at critical stages throughout their7
ordeal,” 149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003).
The balance argument is hardly new. Close to three quarters of a century ago,
the Supreme Court observed that “[t]he law, as we have seen, is sedulous in
maintaining for a defendant charged with crime whatever forms of procedure are of
the essence of an opportunity to defend. . . . But justice, though due to the accused,
is due to the accuser also. The concept of fairness must not be strained till it is
narrowed to a filament. We are to keep the balance true.”8
The due process clauses and other defendants’ rights components of the
Constitution supplied the foundation for the defendant-focused jurisprudence of the

1950's and 1960's. It has also served as one of the early catalysts for the victims’


rights movement. A call for greater constitutional protection of victims’ rights seems
a predictable feature of the belief that the criminal justice system must involve a
greater balance between the rights of victim and those of the defendant.9


7 See also, 149 Cong.Rec. S83 (remarks of Sen. Feinstein)(daily ed. Jan. 7, 2003)
(“Currently, while criminal defendants have almost two dozen separate constitutional rights,
fifteen of them provided by amendments to the U.S. Constitution, there is not a single word
in the Constitution about crime victims. These rights trump the statutory and state
constitutional rights of crime victims because the U.S. Constitution is the supreme law of
the land. To level the playing field, crime victims need rights in the U.S. Constitution. In the
event of a conflict between a victim’s and a defendant’s rights, the court will be able to
balance those rights and determine which party has the most compelling argument”).
8 Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).
9 House Hearing V at 1-2 (statement of Rep. Chabot)(“Currently, the U.S. Constitution is
completely silent on victims’ rights, while it speaks volumes as to the rights of the accused.
Thus, the U.S. Constitution essentially serves as a trump card for those accused of
committing crimes in order to keep victims from participating in their prosecution, or even
just sitting in the courtroom during trial”); 149 Cong.Rec. S82 (daily ed. Jan. 7,
2003)(remarks of Sen. Kyl)(“[S]tatutory and State constitutional provisions are always
subservient to the Federal Constitution; so, in cases of conflict, the defendants’ rights –
which are already in the U.S. Constitution – will always prevail. Our amendment will
correct this imbalance”); see also, The Victims’ Bill of Rights: Are Victims All Dressed Up
With No Place to Go? 8 ST. JOHNS JOURNAL OF LEGAL COMMENTARY 251, 276 (1992);
Young, A Constitutional Amendment for Victims of Crime: A Victim’s Perspective, 34
WAYNE LAW REVIEW 51, 64-65 (1987).

Some might suggest that victims already enjoy equal constitutional rights with
the accused.10 The victim who repels an unlawful assault with excessive force may
find himself criminally charged. In that case, he is entitled to exactly the same
constitutional rights as his attacker.11
Moreover, many of the constitutional rights afforded the accused benefit the
victim as well. They are designed to ensure that the guilty are convicted and that the
innocent are not. The accused benefits when the innocent are not convicted; the
victim benefits when the guilty are.12
The more common response to the balance argument, however, has been that
the balance argument “represents a fundamental misunderstanding of the nature and
purpose of individual constitutional rights.”13 In the same vein, one of the motives


10 Senate Hearing IV at 65 (statement of Ms. Arwen Bird)(“As survivors of crime who are
also United States citizens, we benefit from the fundamental protections that are guaranteed
through our state and federal constitutions. The federal Bill of Rights ensures certain
protections for all citizens; this includes those who have been victimized by crime”).
11 Cf., Carter, When Victims Happen to Be Black, 97 YALE LAW JOURNAL 420 (1988)
(discussing the case of Bernhard Goetz charged with attempted murder and assault and
ultimately convicted for possession of an unlicenced handgun following a subway
confrontation with muggers); S.Rept. 108-191 at 70 (minority views of Sens. Leahy,
Kennedy, Kohl, Feingold, Schumer, and Durbin (minority views))(“the concept of balance
often makes little sense in the context of a criminal proceeding. It assumes that we can
identify the victim at the outset of every case, but this may not be possible. In some
cases–as where the defendant claims that she acted in self-defense–identifying the victim
is what the trial is all about”); see also, S.Rept. 106-254, at 63 (minority views of Sens.
Leahy, Kennedy, Kohl, and Feingold).
12 Logic might suggest that the victim also suffers when the guilty escape unpunished
because an innocent individual has been accused instead, but this view is rarely heard.
13 Senate Hearing IV at 134-35(statement of Mr. Roger Pilon)(“[P]ronents of this
amendment often speak of a constitutional ‘imbalance’ between the rights of defendants and
the rights of victims. The Constitution lists numerous rights of defendants, they say, but is
silent regarding victims. There is a fundamental reason for that ‘imbalance.’ It has to do
with the very purpose and structure of the Constitution. . . . The federal government had
only those powers that the people, through the Constitution, had delegated to it, as
enumerated in the document. And the exercise of that power was further restrained by t he
rights of the individual, enumerated and unenumerated alike. . . . [S]uch benefits as the
Constitution does confer in the criminal law context arise entirely because the government
is the moving party in an adversarial matter. The benefits or rights of due process or trial
by jury, for example arise only because the government has placed the accused in an
adversarial relationship, at which time such rights kick in to limit the means government
may employ. The situation is entirely different with crime victims. They stand in no
adversarial relationship with the government such that the means available to the
government must be restrained for their protection”); see also, S.Rept. 108-191 at 70
(minority views) (“the balance argument mistakes the fundamental reason for elevating
rights to the constitutional level. The rights enshrined in the United States Constitution are
designed to protect politically weak and insular minorities against governmental
overreaching or abuse, not to protect individuals from each other. When the government
unleashes its prosecutorial power against an accused, the accused faces the specter of losing
(continued...)

critics attribute to victims’ rights advocates is a rejection of a basic premise of the
American criminal justice system. They suggest victims believe the criminal justice
process constitutes an unjustifiable waste of time in a procedure that should be
reduced to identifying and then punishing suspects; they consider “suspect”,
“accused”, “defendant”, and “guilty” synonymous terms. No process is too quick;
no punishment sufficiently severe; acquittals are an injustice.14
The Need for Uniformity.
“Eighteen states lack state constitutional victims’ rights amendments. And
the 32 existing state victims’ rights amendments differ from each other. Also
virtually every state has statutory protections for victims, but these vary
considerably across the country. Only a federal constitutional amendment can
ensure a uniform national floor for victims’ rights.” 149 Cong.Rec. S83 (remarks15
of Sen. Feinstein)(daily ed. Jan. 7, 2003).


13 (...continued)
his liberty, property, or even his life. The few and limited rights of the accused in the
Constitution are there precisely because it will often be unpopular to enforce them so that
even when we are afraid of a rising tide of crime, we will be protected against our own
impulse to take shortcuts that could sacrifice a fair trial of the accused and increase the risk
of wrongful conviction. In contrast, there is no need to grant constitutional protections to
a class of citizens that commands virtually universal sympathy and substantial political
power. In the words of Bruce Fein . . . ‘[C]rime victims have no difficulty in making their
voices heard in the corridors of power; they do not need protection from the majoritarian
political process, in contrast to criminal defendants whose popularity characteristically ranks
with of General William Tecumseh Sherman in Atlanta, Georgia’”); see also, S.Rept. 106-
254 at 63-4 (minority views of Sens. Leahy, Kennedy, Kohl, and Feingold); Cardenas, The
Crime Victim in the Prosecutorial Process, 9 HARVARD JOURNAL OF LAW AND PUBLIC
POLICY 357, 381 (1986); Dolliver, Victims’ Rights Constitutional Amendment: A Bad Idea
Whose Time Should Not Come, 34 WAYNE LAW REVIEW 87, 91 (1987).
14 E.g., Abrahamson, Redefining Roles: The Victims’ Rights Movement, 1985 UTAH LAW
REVIEW 517; King, Why a Victims’ Rights Constitutional Amendment Is a Bad Idea:
Practical Experiences from Crime Victims, 68 UNIVERSITY OF CINCINNATI LAW REVIEW

357, 362 (2000).


15 Thirty-three states have added victims’ rights amendments of varying stripes to their
state constitutions, ALA.CONST., Amend. 557; ALASKA CONST. art.I, §24; ARIZ.CONST.
art.2, §2.1; CAL.CONST. art.I, §28; COLO.CONST. art.II, §16a; CONN. CONST. art.I, §8[b.];
FLA.CONST. art.I, §16(b); IDAHO CONST. art.I, §22; ILL. CONST. art.I, §8.1; IND.CONST. art.1,
§13; LA.CONST. art.1, §25; KAN.CONST. art.15, §15; MD.D.OF RTS. art.47; MICH.CONST.
art.I, §24; MISS. CONST. art. 3,§26A; MO.CONST. art.I, §32; MONT. CONST. Art.2, §28;
NEB.CONST. Art.1, §28; NEV.CONST. art.1, §8; N.J. CONST. art.I, §22; N.MEX. CONST. art.II,
§24; N.C. CONST. art.I, §37; OHIO CONST. art.I, §10a; OKLA.CONST. art.II, §34; ORE.
CONST. art. I, §24; R.I.CONST. art.I, §23; S.C.CONST. art.I, §24; TENN.CONST. art.I, §35;
TEX.CONST. art.I, §30; UTAH CONST. art.I, §28; VA.CONST. art.I, §8-A; WASH.CONST. art.I,
§35; WIS. CONST. art.I, §9m. (Perhaps because of its modesty, i.e., it only guarantees
restitution, the Montana constitutional amendment is frequently not counted among the state
victims’ rights amendments).
The remaining states and the federal government have enacted similarly individualistic
general victims’ rights statutes, 42 U.S.C. 10605 to 10607; ARK.CODE ANN. §§16-90-1101
to 16-90-1115; DEL.CODE ANN. tit.11 §§9401 to 9419; GA.CODE ANN. §§ 17-17-1 to 17-17-
(continued...)

Although seldom expressed, the concern is that the presence of many individual
standards contributes to the failure of existing provisions. Diversity breeds
uncertainty that leads to a failure to comply and a failure to claim.
Critics respond that a victims’ rights amendment would essentially federalize
the state criminal justice process, denying the people of a particular state and their
elected officials the right to decide the range of victim rights and services that should
be a part of their state criminal justice systems.16
Uniformity obviously requires compliance to a single standard imposed by an
amendment to the United States Constitution. Some victims’ advocates, however,
see the Amendment as providing a constitutional minimum beyond which Congress
and the states would remain free to establish more exacting victims’ rights, hence the
reference to a “uniform national floor.”17 Skeptics may find that this does not
eliminate the patchwork; it simply changes it.18
Restoration of Victims’ Historic Rights.
“It is a little know[n] fact that at the time the Constitution was drafted, it
was standard practice for victims–not public prosecutors–to prosecute criminal
cases. Because victims were parties to most criminal cases, they enjoyed the
basic rights to notice, to be present, and be heard. Hence, it is not surprising that
the Constitution does not mention victims.
“Now, of course, it is extremely rare for a victim to undertake a criminal
prosecution. Thus, victims have none of the basic procedural rights they used to
enjoy. Victims should receive some of the modest notice and participation rights
they enjoyed at the time that the Constitution was drafted,” 149 Cong.Rec. S83
(remarks of Sen. Feinstein)(daily ed. Jan. 7, 2003).


15 (...continued)

16; HAW.REV.STAT. §§801D-1 to 801D-7; IOWA CODE ANN. §§915.1 to 915.100;


KY.REV.STAT.ANN. §§421.500 to 421.576; ME.REV.STAT.ANN. tit.17-A §§1171 to 1175;
MASS.GEN.LAWS ANN. ch.258B §§1 to 13; MINN.STAT.ANN. §§611A.01 to 611A.90;
N.H.REV.STAT.ANN. §21-M:8-k; N.Y.EXEC.LAW §§640 to 649; N.D.CENT.CODE §§12.1-34-

01 to 12.1-34-05; PA.STAT.ANN. tit.18 §11.201; S.D.COD.LAWS ANN. §§23A-28C-1 to 23A-


28C-6; VT.STAT.ANN. tit.13 §§5301 to 5321; W.VA.CODE §§61-11A-1 to 61-11A-8;


WYO.STAT. §§1-40-201 to 1-40-210.
The states with constitutional amendments generally have comparable statutes, and
virtually every jurisdiction has victims’ rights accommodations scattered throughout its
code.
16 S.Rept. 105-409 at 48 (minority views of Sen. Thompson); cf., Senate Hearing II at 87
(testimony of James E. Doyle, Wisconsin Attorney General).
17 149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003)(“a federal amendment
would establish a basic floor of crime victims’ rights for all Americans, just as the federal
Constitution provides for the accused”).
18 Mosteller & Powell, With Disdain for the Constitutional Craft: The Proposed Victims’
Rights Amendment, 78 NORTH CAROLINA LAW REVIEW 371, 377-81 (2000)(criticizingth
proposals in the 106 Congress).

Opponents suggest that the notice and participation rights enjoyed at the time
the Constitution was drafted were modest indeed, a far cry from those of the
proposal. In its infancy English criminal law incorporated many of the features of
private justice: outlawry, blood feuds, private compensation,19 and trial by battle,20
to mention a few. Several of these had disappeared before colonization of the New
World; others never really took hold here; still others, private criminal prosecutions
among them, disappeared over time. Although the laws of the several American
colonies were not nearly as homogenous regardless of time or place as we may often
believe, it seems clear that well before the founding of the Republic criminal
prosecutions were almost always conducted by a public official.21 United States


19 “On the eve of the Norman Conquest what we may call the criminal law of England (but
it was also the law of torts or civil wrongs) contained four elements which deserve attention;
its past history had in the main consisted of the varying relations between them. We have
to speak of outlawry, of the blood-feud, of the tariffs of wer and bot and wite, of punishment
in life and limb . . . . [T]he evidence which comes to us from England and elsewhere invites
us to think of a time when law was weak, and its weakness was displayed by a ready
recourse to outlawry. It could not measure its blows; he who defied it was outside its
sphere; he was outlaw. He who breaks the law has gone to war with the community; the
community goes to war with him. It is the right and duty of every man to pursue him, to
ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a
wild beast he is; not merely is he a friendless man, he is a wolf. . . .
“Without actively going to war with the offender, the law may leave him unprotected
against those who have suffered by his misdeed; it may concede to them the right to revenge
themselves. The slaughter of a member of one by a member of another kin has been the sign
for a blood-feud. The injured kin would avenge its wrong not merely on the person of the
slayer, but on his belongings. It would have life or lives for life, for all lives were not of
equal value; six ceorls must perish to balance the death of one thegn. . . .
“Outlawry and blood-feud alike have been retiring before a system of pecuniary
compositions, of bot: that is, of betterment. From the very beginning, if such a phrase be
permissible, some small offences could be paid for; they were emendable. The offender
could buy back the peace that he had broken. To do this he had to settle not only with the
injured person but also with the king: he must make bot to the injured and pay a wite to the
king. A complicated tariff was elaborated. Every kind of blow or wound given to every
kind of person had its price, and much of the jurisprudence of the time must have consisted
of a knowledge of these pre-appointed prices. Gradually more and more offences became
emendable; outlawry remained for those would not or could not pay,” II POLLOCK &
MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 449-51 (2d ed.

1898).


20 “Since the Norman Conquest there have been three modes of trial in criminal cases,
namely, trial by ordeal, trial by battle, and trial by jury; and there have been also three
modes of accusation, namely, appeal or accusation by a private person, indictment or
accusation by a grand jury, and informations which are accusations either by the Attorney-
General or by the Master of the Crown Office,” I STEPHEN, HISTORY OF THE CRIMINAL LAW
OF ENGLAND 244 (1883).
21 Senate Hearing IV at 2 (statement of Sen. Feingold)(“I think it is fairly well established
that public prosecutions were the norm when the Constitution was written and adopted”).
As the Wickersham Commission observed, “[I]n the first years of the eighteenth century,
the Colonies began to do away with private prosecutions and set public prosecutors. The
first statute was enacted in Connecticut in 1704 . . . . [T]he example of Connecticut was
soon followed in other Colonies. . . .By the end of the century, official prosecutions by
(continued...)

Attorneys or their predecessors, United States District Attorneys, have prosecuted
federal crimes from the beginning, 1 Stat. 92 (1789). Private prosecutions were
permitted in some states, but even in such places they appear to have been unusual.22
Moreover, private prosecution brought with it but a meager portion of the
rights today associated with victims’ rights. A victim might hire a private prosecutor
and might expect notice of the proceedings and their outcome as well as presentation
of his views. Yet there has been no suggestion that the practice gave the victim an
enforceable right to be present or to be heard other than through his or her attorney.
Inadequacy of State Law Alternatives.
“These state [victims’ rights] measures have helped protect crime victims;
but they are inadequate for two reasons. First, each amendment is different, and
not all states have provided protection to victims. . . . Second, statutory and state
constitutional provisions are always subservient to the federal constitution; so,
in cases of conflict, the defendants’ rights, which are already in the U.S.
Constitution will always prevail.” 149 Cong.Rec. S82 (remarks of Sen. Kyl)23
(daily ed. Jan. 7, 2003).
The adequacy of alternatives, now and in the future, lies at the heart of the24
dispute. Proponents find present law wanting. Opponents find present law


21 (...continued)
public prosecutors had become established as the American system,” NATIONAL
COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT: REPORT ON PROSECUTION 6-7
(1931); see also, S.Rept. 108-191 at 68 (“Most American colonies followed the Englishth
model of private prosecutions in the 17 century but, as one distinguished scholar has
written, that system ‘proved even more poorly suited to the needs of the new society than
to the older one.’ These colonies shifted to a system of public prosecutions because they
viewed the system of private prosecutions as ‘inefficient, elitist, and sometimes
vindictive’”); Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARVARD
JOURNAL OF LAW AND PUBLIC POLICY 357, 371 (1986)(“Whatever its derivation, the
American system of public prosecution was fairly well established by the time of the
American Revolution. This meant that local district attorneys were given a virtual
monopoly over the power to prosecute. Crime victims were no longer allowed to manage
and control the prosecution of their crimes; rather, the victim was to serve as a piece of
evidence to be used by the state to obtain a conviction”).
22 The most commonly cited examples of private prosecutions involve dicta in appellate
decisions and a few statutory provisions which allowed individuals to hire private attorneys
to assist public officials in a public prosecution under some circumstances, e.g., McDonald,
Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13
AMERICAN CRIMINAL LAW REVIEW 649, 665 n.78 (1976).
23 See also, 149 Cong.Rec. S83 (daily ed. Jan. 7, 2003)(“State victims’ rights laws lacking
the force of federal constitutional law are often given short shrift. A Justice Department-
sponsored study and other studies have found that, even in states with strong legal
protections for victims’ rights, many victims are denied those rights. The studies have also
found that statutes are insufficient to guarantee victims’ rights. Only a federal constitutional
amendment can ensure that crime victims receive the rights they are due”).
24 House Hearing III (statement of Rep. Chabot)(“You might then ask why a constitutional
(continued...)

workable and fear an amendment would make matters worse.25 The specifics of the
proposal provide the specifics for much of the debate. The more robust the
amendment, the more civil libertarians and the states are likely to object; the more
restrained the amendment, the more victims’ rights advocates are likely to question
its sufficiency.
Inadequacy of Federal Statutory Alternatives.
“The leading statutory alternative to the Victims’ Rights Amendment would
only directly cover certain violent crimes prosecuted in Federal court. Thus, it
would slight more than 99 percent of victims of violent crime. We should
acknowledge that Federal statutes have been tried and found wanting. It is time
for us to amend the U.S. Constitution.
“The Oklahoma City bombing case offers another reason why we need a
constitutional amendment. This case shows how even the strongest Federal
statute is too weak to protect victims in the face of a defendant’s constitutional
rights. In that case, two Federal victims’ statutes were not enough to give victims
of the bombing a clear right to watch the trial and still testify at the
sentencing–even though one of the statutes was passed with the specific purpose


24 (...continued)
amendment is necessary? The answer is simple: a clear pattern has emerged in courthouses
around the country that judges and prosecutors are reluctant to apply or enforce existing
laws when they are routinely challenged by criminal defendants”); House Hearing IV at 41
(statement of Roberta Roper, National Victims’ Constitutional Amendment Network)(“And
while great progress has been made in the passage of good laws, both on the state and
federal level and constitutional amendments passed in 33 states, the sad reality is that
victims’ rights continue to be denied. None of these state or federal laws are able to match
the constitutionally protected rights of offenders. The result is that crime victims remain
second class citizens in our nation’s system of justice”); see also, Young, A Constitutional
Amendment for Victims of Crime: The Victims’ Perspective, 34 WAYNE LAW REVIEW 51,

52 (1987); The Victims’ Bill of Rights: Are Victims All Dressed Up With No Place to Go?


8 ST.JOHNS JOURNAL OF LEGAL COMMENTARY 251, 273-74 (1992); Kyl & Feinstein,


Victims’ Rights: Do We Need a Constitutional Amendment to Ensure Fair Treatment — Yes:
Victims Deserve Justice No Less Than Defendants, 82 AMERICAN BAR ASSOCIATION
JOURNAL 82 (Oct. 1996); Senate Hearing II at 12 (statement of Prof. Laurence H. Tribe,
Harvard University Law School); United States Department of Justice, Office of Justice
Programs, Office for Victims of Crime, New Directions from the Field: Victims’ Rights and
Services for the 21st Century 11 (1998)(“In the mid-1990s, the National Victim Center,
under a grant from the National Institute of Justice, studied implementation of victim rights
laws in four states. Two states were selected because they had strong state statutory and
constitutional protection of victims’ rights, and two were selected because they had weaker
protection. The study surveyed more than 1,300 crime victims and was the largest of its
kind ever conducted. It found that many victims were still being denied their rights, even
in states with strong legal protection”).
25 House Hearing II at 143-45 (statement of Ellen Greenless, President National Legal Aid
and Defender Association); Senate Hearing II at 99 (statement of Robert J. Humphreys,
President of the Virginia Association of Commonwealth’s Attorneys); Senate Hearing II at

162-63 (statement of the National Clearinghouse for the Defense of Battered Women).



of allowing the victims to do just that,” 149 Cong.Rec. S84 (remarks of Sen.26
Feinstein)(daily ed. Jan. 7, 2003).
Existing federal law enjoins federal officials to make “their best efforts” to
ensure that crime victims are accorded:
(1) The right to be treated with fairness and with respect for the victim’s
dignity and privacy.
(2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings related to the
offense, unless the court determines that testimony by the victim would be
materially affected if the victim heard other testimony at trial.
(5) The right to confer with attorney for the Government in the case.
(6) The right to restitution.
(7) The right to information about the conviction, sentencing,
imprisonment, and release of the offender. 42 U.S.C. 10606(b).
Section 10606, however, “does not create a cause of action or defense in favor
of any person arising out of the failure to accord to a victim [these] rights,” 42 U.S.C.

10606(c).


In other victim related provisions, federal law establishes public safety and the
safety of any individual (including victims) as required considerations before bail is
granted, 18 U.S.C. 3142(b). It no longer bars victims from federal criminal
proceedings simply because they are potential witnesses, 18 U.S.C. 3510, but their
attendance may bar them from testifying at any subsequent sentencing proceedings27
as witnesses. It entitles victims of federal property crimes and crimes of violence
to restitution, 18 U.S.C. 3663A, and to present a statement to the court before
sentence is imposed, F.R.Crim.P. 32(c)(3)(E).
Overview
The Amendment is more succinct by design than its predecessors.28 As a
consequence it offers a wider range of interpretative choices. In general terms, it


26 House Hearing IV at 6 (statement of Rep. Royce) (“So while many states and the federal
government have enacted legal protections for crime victims, those laws have been
insufficient in providing all victims’ rights within the criminal justice system”); id. at 80
(prepared statement of Sen. Kyl)(“Attempts to establish rights by federal or state statute, or
even state constitutional amendment, have proven inadequate, after more than twenty years
of trying”).
27 United States v. McVeigh, 958 F.Supp.2d 512, 514-15 (D.Colo. 1997).
28 149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003). The Amendment may
have become more stylish at a cost, see, Senate Hearing IV at 123; House Hearing IV at 51
(statement of James Orenstein)(“while the language of the current bill is more streamlined
and reads more like other constitutional amendments than its predecessor, it achieves such
stylistic improvements at the expense of clarity, which could result in real harm to criminal
prosecutions”).

defines the participation of crime victims in state and federal official proceedings
generated by the crimes committed against them. It gives them qualified notification,
attendance, articulation, and consideration rights. Official decisions must take
victims’ safety and their interests in avoiding delay and in restitution into account.
Victims have a right to be heard on questions of bail, plea agreements, sentencing,
and pardons. They have a right to be informed of, and not excluded from, crime-
related public proceedings and to be notified of escapes and releases. Congress
enjoys legislative authority to enforce the Amendment, but may restrict victims’
rights only in the name of public safety, the administration of criminal justice, or
compelling necessity.
Preemptive and Amending Impact
The United States Constitution is the supreme law of the land, U.S.Const. Art.
VI, cl.2. When it is said that nothing in victims’ rights edicts created by statute or
state constitution imperils defendants’ rights under the United States Constitution,
that is correct; nothing could. But an amendment to the United States Constitution
stands on different footing. It amends the Constitution. Its very purpose is to make
constitutional that which would otherwise not have been.29 It may subordinate
defendants’ rights to victims’ rights or subordinate victims’ to defendants’ rights. It
may subordinate either, both, or neither to prosecutorial discretion. It may require
any conflicting law or constitutional precept, state or federal, to yield. Even in the
absence of a conflict, it may preempt the field, sweeping away all laws, ordinances,
precedents, and decisions – compatible and incompatible alike – on any matter
touching upon the same subject. Whether it does so or to what extent it does so is
a matter of interpretation. That is, what is its intent? What does it say? What is its
purpose? What does its history tell us?
The questions are most perplexing when an apparent conflict exists between
state and federal law or among the rights and prerogatives of victims, defendants and
prosecutors. The interpretative principles of preemption triggered by an apparent
conflict between state and federal law are fairly well developed. “[P]reemption of
state law [may occur] either by express provision, by implication, or by a conflict
between federal and state law. And yet, despite the variety of these opportunities for
federal preeminence, [the Court has] never assumed lightly that Congress has
derogated state regulation, but instead [has] addressed claims of preemption with the
starting presumption that Congress does not intend to supplant state law. Indeed, in
cases . . . where federal law is said to bar state action in fields of traditional state
regulation, [the Court has] worked on the assumption that the historic police powers
of the states were not to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.”30 Conversely, by virtue of the Supremacy


29 S.Rept. 105-409 at 67 (minority views of Sens. Leahy, Kennedy, and Kohl)(quoting
former Deputy Attorney General Philip Heymann)(“If it is not intended to free the States
and Federal Government from restrictions found in the Bill of Rights – which would be a
reckless tampering with provisions that have served us very well for more than 200 years
– it is unclear what purpose the amendment serves”).
30 New York Conference of Blue Cross v. Travelers Insurance Co., 514 U.S. 645, 654-55
(continued...)

Clause, where the subject matter is one which the Constitution relegates to the federal
domain, the vitality of state law is dependent upon the largess of Congress and the
Constitution.31
A victims’ rights amendment to the United States Constitution that relegates the
area to the federal domain, confines state authority to that which the amendment
permits or allows Congress to permit. Few advocates have explicitly called for a
“king-of-the-hill” victims’ rights amendment, but the thought seems imbedded in the
complaint that existing law lacks uniformity. How else can universal symmetry be
accomplished but by implementation of a single standard that fills in where pre-
existing law comes up short and shaves off where its generosity exceeds the
standard? Yet the recent history of the Amendment and proposals indicate that
advocates intended to establish a minimum rather than a uniform standard.32
Questions of the Amendment’s impact on the rights afforded the accused may
be even more difficult to discern. The principles of construction called into play in
the case of a conflict between a victims’ rights amendment and rights established
elsewhere in the Constitution are similar to those used to resolve federal-state
conflicts.
Intent of the drafters is considered paramount, but the courts will make every
effort to reconcile apparent conflicts between constitutional provisions.33 In the case
of unavoidable conflict between provisions of equal dignity, the latest in time
prevails.34 If there is an unavoidable conflict between a right granted by an adopted
victims’ rights amendment and some other portion of the Constitution, the most
recently adopted provision will prevail. As discussed below, proposals in the 106th
Congress came to naught over the issue of defendants’ versus victims’ rights.35


30 (...continued)
(1995).
31 United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-802 (1995).
32 The sponsors of the Amendment in the Senate, both refer to it as establishing “a floor,”

149 Cong.Rec. S82 (remarks of Sen. Kyl)(daily ed. Jan. 7, 2003); id. at S83 (remarks of Sen.


Feinstein); the committee reports both most recent and in the past express a similar view,
S.Rept. 108-191, at 32 (“[M]any states have already extended rights to victims of such
offenses and the amendment in no way restricts such rights. In other words, the amendment
sets a national ‘floor’ for the protection of victims’ rights, not any sort of ‘ceiling’”); see
also, S.Rept. 106-254 at 29; S.Rept. 105-409 at 24; Senate Hearing V (statement of
Assistant Attorney General Viet D. Dinh (“The proposed amendment respects the role of
State and local governments because it does not bar them from providing additional or
broader rights to victims. Instead, it provides a floor rather than a ceiling of the rights to be
afforded to victims of crime”); but see, House Hearing V at 2 (statement of Rep.
Chabot)(“Only an amendment to the Constitution can establish uniformity in the criminal
justice system and ensure victims receive the justice they deserve”).
33 Cf., Vimar Seguros Y Reasdeguros v. Sky Reefer, 515 U.S. 528, 533 (1995).
34 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
35 “This issue goes down–let me be very candid–on one phrase. That one phrase is the
(continued...)

Victims’ Rights v. Defendants’ Rights
Defendants’ rights and prosecutors’ prerogatives have been the twin Achilles’
heels36 of past victims’ rights proposals. The challenge has been to strike a balance
between the rights of victims and defendants without impinging on defendants’ rights
or hamstring law enforcement efforts; to deny defendants’ rights trump status without
denying the defendants their rights or jeopardizing prosecutorial prerogatives.
Contemporary Practices.
The victims’ rights amendments in a few state constitutions concede that they
may not be construed to diminish the rights of the accused.37 Most rights that the
United States Constitution guarantees the accused are binding on the states38 and thus
beyond limitation by state constitutional amendment in any event.
Past Practices.
Until the Amendment in its present form first appeared in the 107th Congress,
none of the proposals addressed the resolution of conflicts between the constitutional
rights of defendants and the rights created in the Amendment. During Senate
Judiciary Committee consideration of a proposal in the 108th and 106th Congresses,
a modification was offered and defeated that would have provided that, “Nothing in


35 (...continued)
addition of language that would say nothing in this Constitution would abridge the right of
a defendant as provided by this Constitution.
“That is a paraphrase of what it is.
“The Department of Justice insists on that language. We will not get administration
support, I believe, without that language. The victims movement believes they would not
have sufficient standing in these rights to really assert them in a meaningful way unless they
were able to be balanced against the rights of the defendant,” 146 Cong.Rec. S2977 (daily
ed. April 17, 2000)(remarks of Sen. Feinstein).
36 In Greek mythology, Achilles’ mother sought to make her infant son immortal by holding
him by the heels and dipping him in the River Styx. Achilles perished during the siege of
Troy when Paris’ arrow found Achilles’ only vulnerable spot, the heel which his mother’s
hold had shielded from the immortalizing bath , Achilles, 1 ENCYCLOPEDIA AMERICANA 103
(2001 ed.).
37 E.g., ALA.CONST., Amend. 557 (“to the extent that these rights do not interfere with the
constitutional rights of the person accused of committing the crime”); see also, FLA.CONST.
art.I, §16(b); IND.CONST. art.1, §13; OHIO CONST. art.I, §10a; ORE. CONST. art. I, §24;
VA.CONST. art.I, §8-A; WIS. CONST. art.I, §9m.
38 E.g., In re Oliver, 333 U.S. 257 (1948)(public trial); Klopfer v. North Carolina, 386 U.S.

213 (1967)(speedy trial); Duncan v. Louisiana, 391 U.S. 145 (1968)(jury trial); Irvin v.


Dowd, 366 U.S. 717 (1961)(impartial jury); Pointer v. Texas, 380 U.S. 400
(1968)(confrontation); Powell v. Alabama, 287 U.S. 45 (1932)(right to counsel); Gideon v.
Wainwright, 372 U.S. 335 (1963)(indigent’s right to appointed counsel); Benton v.
Maryland, 395 U.S. 784 (1969)(double jeopardy); Malloy v. Hogan, 378 U.S. 1 (1964)(self-
incrimination); In re Winship, 397 U.S. 358 (1970)(proof beyond a reasonable doubt);
Furman v. Georgia, 408 U.S. 238 (1972)(cruel and unusual punishment); Kentucky v.
Stincer, 482 U.S. 730 (1987)(present at all critical stages of proceedings).

this article shall limit any right of the accused which may be provided by this
Constitution,” S.Rept. 108-191, at 44; S.Rept. 106-254 at 43.
Amendment in the 108th Congress.
Section 1: The rights of victims of violent crime, being capable of protection
without denying the constitutional rights of those accused of victimizing them,
are hereby established and shall not be denied by any State or the United States
and may be restricted only as provided in this article.
Past proposals contained no mention of the rights of the accused. Consistent
with the past, this preamble may represent no more than the announcement of an
article of faith. If so, in cases of unavoidable conflict the rights of the victim being
later in time would always trump the rights of the accused. Alternatively, it may
limit the rights protected by the Amendment to those that do not intrude upon the
rights of the accused, that is, in cases of unavoidable conflict the rights of the accused
would always trump the rights of the victim. Which reading, if either, is correct?
The Amendment’s remaining text offers few clues.
The style is reminiscent of the Second Amendment,39 but the similarities are not
instructive. The Supreme Court has rarely construed the Second Amendment.
Moreover the relationship between preambletory clause and the substance of the
section are not the same. The Second Amendment states that the right to bear arms
may not be infringed because a well regulated militia is necessary to the security of
a free state. The Amendment states that victims’ rights are established and may not
be denied because they need not conflict with the rights of the accused. The Second
Amendment speaks of a rationale; the Amendment of an assurance of compatibility.
The statement of Professor Tribe, who helped draft the Amendment, seems to
favor an accused-rights-or-prosecutor’s-discretion-trumps-victims-rights solution:
“How best to protect that right [of victims] without compromising either the
fundamental rights of the accused or the important prerogatives of the prosecution
is not always a simple matter, but I think your final working draft of April 13, 2002
resolves that problem in a thoughtful and sensitive way . . . That you achieved such
conciseness while fully protecting defendant’s rights and accommodating the
legitimate concerns that have been voiced about prosecutorial power and presidential
authority is no mean feat,” 149 Cong.Rec. S85 (daily ed. Jan. 7, 2003)(letter from
Laurence H. Tribe to Senators Dianne Feinstein and Jon Kyl). Victims’ rights appear
to come in third, if the object was to protect victims’ rights without compromising
prosecutorial prerogatives or the rights of the accused. But this is the status quo from
the perspective of the Amendment’s sponsors; it is what the Amendment seeks to
change. It is a construction seemingly at odds with the purpose for the Amendment.
On the other hand, hearing witnesses offered explanations echoed in the
Committee report under which prosecutorial prerogatives appear to come in a distant
third:


39 “A well regulated Militia, being necessary to the security of a free state, the right of the
people to keep and bear arms, shall not be infringed,” U.S.Const. Amend. II.

This preamble, authored by Professor Tribe, establishes two important
principles about the rights established in the amendment: First, they are not
intended to deny the constitutional rights of the accused, and second, they do not.
The task of balancing rights, in the case of alleged conflict, will fall, as it always
does, to the courts, guided by the constitutional admonition not to deny
constitutional rights to either the victim or the accused. Senate Hearing V;
House Hearing V at 26 (statement of Steven T. Twist)(emphasis in the40
original).
This may be why the restriction clause in section 2 of the Amendment41 is said to
imposes a less demanding standard for law enforcement exceptions than for
defendants’ rights exceptions.42
Victims of Crime
The Amendment creates rights for the victims of violent crime. Its scope turns
on the definition of victim, on the definition of violent crime, and on the jurisdiction
whose proceedings and decisions the Amendment governs. The Amendment’s
authors apparently contemplate basic coverage of individuals and legal entities
victimized by any crime that in its nature or the circumstances of its commission
involves the use or threatened use of physical force against the person or property of
another, S.Rept. 108-191, at 30-2. In addition, they seem to anticipate that Congress
and the states may directly expand this basic coverage for the benefit of victims of


40 See also, id. at 77 (statement of James Orenstein)(“Much of the language adopted in
S.J.Res. 3 to address law enforcement concerns has been changed or deleted in the current
version. . . . Thus, for example . . . the remedies provision of the current bill no longer
contains an explicit prohibition – as the previous version of the Amendment did – forbidding
a court from curing a violation of a victim’s participatory rights by staying or continuing a
trial, reopening a proceeding or invalidating a ruling. If the current version of the
Amendment is ratified, courts interpreting it might rule that this was a deliberate change and
that any ambiguity on the issue must therefore be resolved in favor of allowing such
remedies – remedies that could well harm the prosecution’s efforts to convict an offender”);
S.Rept. 108-191, at 30 (“This preamble establishes two important principles about the rights
established in the amendment: First, they are not intended to deny the constitutional rights
of the accused, and second, they do not, in fact , deny those rights. The task of balancing
rights, in the case of alleged conflict, will fall, as it always does, to the courts, guided by the
constitutional admonition not to deny constitutional rights to either the victim or the
accused.”). Note that section 2's restrictions in the name of public safety, the administration
of criminal justice, and compelling necessities afford the prosecution some shelter from the
assertion of victims’ rights.
41 “These rights shall not be restricted except when and to the degree dictated by a
substantial interest in public safety or the administration of criminal justice, or by
compelling necessity.”
42 S.Rept. 108-191 at 41-2 (“The Committee-reported amendment provides that restrictions
are permitted for a ‘substantial interest’ in public safety or the administration of criminal
justice. In choosing this standard . . . the Committee seeks to provide adequate procedures
for law enforcement and the courts while ensuring that the restriction does not swallow the
rights. . . . In all other contexts only a ‘compelling’ interest . . . will operate to limit the right.
The Committee stresses that defendants’ constitutional rights may well mee+t this standard
in many cases”).

certain nonviolent crimes and indirectly expand it by the conduct they subsequent
decide to outlaw or legalize, id. The Amendment in section 2 seems to concede
continuing legislative authority – at least for Congress and perhaps for the states –
to curtail this basic coverage “where and to the degree dictated by a substantial
interest in public safety or the administration of criminal justice, or by compelling
necessi t y.”
On its face the Amendment would appear to apply with respect to proceedings
involving a crime – federal, state, territorial or tribal; civilian or military – but
probably not with respect to juvenile proceedings under any of those authorities.
Contemporary Practices.
Who is a Victim.
In common parlance, the concept of victim is fairly broad. It encompasses the
sympathetic and not so sympathetic victim – the rape victim and the “ripped off”
drug dealer; the casualties of gang warfare, both bystander and participant; the43
middleman in a pyramid scheme; the defendant who is acquitted or whose
conviction is overturned;44 and the elderly person defrauded the savings of a lifetime.
The term often contemplates parents and other members of the family of a
deceased, incapacitated, or juvenile victim. In the case of property crimes, it may
include anyone with an interest in the property, e.g, an owner, a tenant, a mortgage
holder, or an insurer. In a commercial setting, it embodies those who are
economically disadvantaged by a crime even if they suffered no direct injury to an
identifiable property interest. In the case of civil rights violations, hate crimes, and
terrorism, any member of the group targeted for intimidation may correctly be
counted a victim. In the case of public solicitation for prostitution, public drug
trafficking, and other crimes with elements of environmental nuisance, anyone who
lives in, does business in, or has occasion to visit any affected geographical area
might be listed among the victims.45 The various “Megan’s Law” efforts seem to
suggest that at least in the public mind, the concept of victim also may encompass


43 A scheme involving an enterprise whose only income generating activity is the
solicitation of successive layers of investors, each layer paid out of the investments of their
successors, United States v. Gold Unlimited, Inc., 177 F.3d 472, 475 (6th Cir. 1999).
44 E.g., Dr. Sam Sheppard’s conviction for the murder of his wife was only overturned after
he had served ten years in prison, Shepard v. Maxwell, 384 U.S. 333 (1966); DNA and other
evidence, strongly corroborating his innocence, was only fully developed after his death,
Pittsburgh Post-Gazette, A8 (March 30, 1997).
House Hearing II at 90 (statement of Elisabeth A. Semel on behalf of the National
Association of Criminal Defense Lawyers)(“Just last week, three men were released from
Illinois’ death row, having spent 18 years in prison for a double murder they did not commit.
As one of the men, Kenneth Adams, rightly said: ‘We are victims of this crime too . . . I
want people to know that this could happen to anybody and that’s a crime’”).
45 Community Input at Sentencing: Victim’s Right or Victim’s Revenge? 75 BOSTON
UNIVERSITY LAW REVIEW 187 (1995).

potential victims under some circumstances.46 The governmental entities that must
bear the cost of investigating and prosecuting crime could legitimately be considered
its victims. Finally, the concept of criminal law is based upon the premise that a
criminal act is a transgression against the social order, against the commonweal, the
body politic; a crime is a wrong committed against all of us.
Most state constitutional amendments do not define the classes of crime victims
for whom they establish rights.47 Statutory definitions are diverse and more than a
few jurisdictions recognize different definitions for different purposes. The corporate
victim of a crime, for example, may be entitled to restitution but not to notice of the
release of an offender.48 Under some victims’ rights statutes, “victims” may be
limited to the victims of felonies or of specific violent crimes.49 In several instances,
states have modified their definitions of “victim” to exclude certain classes of
victims, e.g., prisoners, codefendants, and the like.50
Rights in What System.
The question of what constitutes a “crime” for purposes of victims’ rights is one
of several parts. What type of crimes does it cover? Does the Amendment cover
state as well as federal crimes? Does it cover crimes proscribed by the laws of the
District of Columbia, or of Puerto Rico, or of any of the other territories or51
possessions of the United States? Does the Amendment exempt certain victims


46 See also, Abrahamson, Redefining Roles: The Victims Rights Movement, 1985 UTAH
LAW REVIEW 517, 526 (“The victim has become middle class America. We are all potential
victims. Beginning in the 1960s, there has been an increase of crime – or at least a
perception of an increase of crime. More and more people began to see themselves and their
family members as victims of crime or as potential victims”).
47 The majority create rights for victims “as defined by law”, e.g., ALA.CONST. Amend.No.

557; CONN.CONST. Art.1, §8[b], but see, N.J.CONST. Art.1, ¶22; N.MEX.CONST. Art.II, §24.


48 E.g., MINN.STAT.ANN. §611A.01(“‘Victim’ means a natural person who incurs loss or
harm as a result of a crime . . . and for purposes of [restitution] also includes a corporation
that incurs loss or harm as a result of crime . . .”).
49 E.g., W.VA.CODE §61-11A-2 (“‘victim’ means a person who is a victim of a felony”);
S.D.COD.LAWS ANN. §23A-28C-4 (“victim means any person being the direct subject of .
. . a crime of violence, simple assault [in a domestic context, or drunk driving]”);
KY.REV.STAT.ANN. §421.500 (“‘victim’ means an individual who suffers . . . harm as a
result of the commission of a crime classified as stalking, unlawful imprisonment, use of a
minor in a sexual performance . . .”).
50 E.g., ILL.COMP.LAWS ANN. ch. 725, §130/3; IND.CODE ANN. §35-40-4-8.
51 This question is especially intriguing with respect to those places where the full panoply
of defendant’s constitutional rights may not be available, see United States v. Verdugo-
Urquidez, 494 U.S. 259, 268 (1990)(“the global view taken by the Court of Appeals to the
application of the Constitution is also contrary to this Court’s decisions in the Insular Cases,
which held that not every constitutional provision applies to governmental activity even
where the United States has sovereign power. In Dorr, we declared the general rule that in
an unincorporated territory–one not clearly destined for statehood–Congress was not
required to adopt a system of laws which shall include the right of trial by jury, and that the
(continued...)

either because of the character of the victim (e.g., corporate entity, criminally
accused) or the status of the accused (e.g., a juvenile, a Native American, or a
member of the armed forces)? In most jurisdictions, conduct that would be
considered criminal in an adult is considered delinquency (not criminal conduct) in
a juvenile unless the juvenile is tried as an adult. The states are divided over whether
the victims of acts of juvenile delinquency are entitled to the same level of rights as
the victims of the same misconduct when committed by an adult.52
Past Proposals.
Who is a Victim.
The drafters of past victims’ rights proposals have opted for one of three5354
alternatives: (1) crimes of violence; (2) felonies and crimes of violence; (3)
crimes of violence and such other crimes as were legislatively designated.55 The vast56
majority have created rights for the victims of both state and federal crimes:
A victim of a crime of violence, as these terms may be defined by law, shall
have the rights to . . . S.J.Res. 3 (106th Cong.)
Each individual who is a victim of a crime for which the defendant can be
imprisoned for a period longer than one year or any other crime that involves
violence shall the rights to . . . H.J.Res. 64 (106th Cong.).


51 (...continued)
Constitution does not, without legislation and of its own force, carry such right to territory
so situated. Only ‘fundamental’ constitutional rights are guaranteed to inhabitants of those
territories”).
52 United States Department of Justice, Office of Justice Programs, Office for Victims of
Crime, New Direction From the Field: Victims’ Rights and Services for the 21st Century at
22 (“Although some state victims’ bill of rights and constitutional amendments include
rights for victims of juvenile offenders, most states have extended only selected rights to
these victims”). Only three of the thirty-three state constitutional amendments expressly
cover victims of juvenile misconduct, ALASKA CONST. Art.1, §24; ORE.CONST. Art.I, §42;
S.C.CONST. Art.I, §24; two others empower their state legislatures to do so, ARIZ.CONST.
Art.2, §2.1; UTAH CONST. Art.1, §28(3).
53 S.J.Res. 3 (106th Cong.) (“a victim of a crime of violence as these terms may be defined
by law”); S.J.Res. 44 (105th Cong.) (“a victim of a crime of violence”); H.J.Res. 129 (105th
Cong.)(same).
54 H.J.Res. 64 (106th Cong.)(“victim of a crime for which the defendant can be imprisoned
for a period longer than one year or any other crime that involves violence”); H.J.Res. 71
(105th Cong.)(same); H.J.Res. 173 (104th Cong.)(substantively the same).
55 S.J.Res. 6 (105th Cong.)(“victim of a crime of violence, and other crimes that Congress
may define by law”); S.J.Res. 52 (104th Cong.)(“victim . . . of a crime of violence and other
crimes as may be defined by [state or federal] law”); H.J.Res. 174 (104th Cong.)(same).
56 H.J.Res. 129 (105th Cong.) appears to be the only exception.

Section 3 of some of the older proposals declared that “no person accused of the
crime may obtain any form of relief hereunder.” This obviously referred to those
who victimize, but it might have disqualify victims who were also accused of a
crime. For example, if both parties to a domestic altercation were charged, neither
might be considered qualified. Alternatively, they might each be considered the
victim of the other’s crime, and thus both be entitled to the Amendment’s benefits.
The language (“the crime”) probably could not be reasonably construed to bar claims
by those under indictment or other form of criminal charge for other crimes. Thus,
for instance, inmates who are the victims of criminal assaults while incarcerated
would appear to qualify as victims under the proposal.57
Rights in What System.
All but one of the early proposals included juvenile proceedings;58 some covered
military prosecutions without reservation;59 some contained explicit reference to6061
habeas proceedings; several lacked any explicit reference to the territorial courts;
and one applied only to federal proceedings.62
In the 106th Congress, the proposals reached state, federal, and territorial
proceedings; juvenile proceedings; and, to the extent permitted by Congress, military
proceedings. In doing so, the Senate Judiciary Committee explained, the proposals
endorsed the Justice Department’s belief that “the rights of victims of juvenile
offenders should mirror the rights of victims of adult offenders.”63 They also


57 Cf., Senate Hearing V; House Hearing V at 76(statement of James Orenstein)(“If, as
discussed below, the current language of the Amendment creates a right to be present in
court proceedings involving the crime, or at a minimum to be heard orally at some such
proceedings, prison administrators will be faced with the Hobson’s choice between cost- and
labor-intensive measures to afford incarcerated victims their participatory rights and
foregoing the prosecution of offenses within prison walls that are necessary to maintain
order. Either choice could undermine orderly prison administration and the safety of
corrections officers”); see also, Senate Hearing IV at 118; House Hearing IV at 48.
58 H.J.Res. 173 (104th Cong.)(“. . . victims . . . in each prosecution by the United States or
a State. . .”)(emphasis added).
59 H.J.Res. 173 (104th Cong.)(“. . . victims . . . in each prosecution by the United States or
a State. . .”); H.J.Res. 174/S.J.Res. 52 (104th Cong.)(“To ensure that the victim is treated
with fairness. . . throughout the criminal, military, and juvenile justice processes. . .”).
60 H.J.Res. 71 (105th Cong.); S.J.Res. 6 (105th Cong.).
61 H.J.Res. 173 (104th Cong.); H.J.Res. 174/S.J.Res. 52 (104th Cong.).
62 H.J.Res. 129 (“The rights established by this article shall apply in all Federal
proceedings, including military proceedings to the extent that Congress may provide by law,
juvenile justice proceedings, and proceedings in any district or territory of the United States
not within a State”)(emphasis added). The italicized language in H.J.Res. 129 might have
been sufficient to extend the amendment’s coverage to victims of crimes tried in tribal
courts. If so, it would be the only one to do so.
63 S.Rept. 106-254 at 42; S.Rept. 105-409 at 37, each quoting, U.S.Department of Justice,
Office for Victims of Crime, New Directions From the Field: Victims’ Rights and Services
(continued...)

embodied an exception for military proceedings under the view that “[b]ecause of
the complicated nature of military justice proceedings, including proceedings held
in times of war, the extension of victims’ rights to the military was left to Congress.
The Committee intends to protect victims’ rights in military justice proceedings
while not adversely affecting military operations.”64
The proposal in the 106th Congress stated that:
The rights and immunities established by this article shall apply in Federal
and State proceedings, including military proceedings to the extent that the
Congress may provide by law, juvenile justice proceedings, and proceedings in
the District of Columbia and any commonwealth, territory, or possession of the
United States. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th Cong.).
Amendment in the 108th Congress.
SECTION 1: The rights of victims of violent crime . . . shall not be denied by
any State or the United States and may be restricted only as provided in this
article.
SECTION 2: A victim of violent crime shall have the right to . . . .
Who is a Victim.
The Amendment defines neither “victim” nor “violent crime.” Nor does it
explicitly authorize a legislative definition, although such authority is probably
contemplated in Congress’ authority to enact appropriate enforcement legislation and
perhaps in the reservation for restrictions “dictated by a substantial interest in public
safety or the administration of criminal justice, or by compelling necessity.” In the
absence of any such implementing statutory illumination, the courts would likely
construe the terms in light of the remaining text of the Amendment, the ordinary


63 (...continued)
for the 21st Century 22 (1998). This might have been the most difficult of the proposal’s
commands to translate, because it would often mark a departure from existing state practice,
United States Department of Justice, Office of Justice Programs, Office for Victims of
Crime, New Direction From the Field: Victims’ Rights and Services for the 21st Century at
22 (“Although some state victims’ bill of rights and constitutional amendments include
rights for victims of juvenile offenders, most states have extended only selected rights to
these victims”). Only three of the thirty-three state constitutional amendments expressly
afford similar breadth of coverage for the victims of juvenile misconduct, ALASKA CONST.
Art.1, §24; ORE.CONST. Art.I, §42; S.C.CONST. Art.I, §24; although a few more their state
legislatures to bestow comparable treatment, ARIZ.CONST. Art.2, §2.1; OKLA. CONST. Art.II
§34; S.C. CONST. Art.I §24; UTAH CONST. Art.1, §28(3).
64 S.Rept. 106-254 at 42, accord, S.Rept. 105-409 at 37. Military tribunals already have
a victims’ rights regulatory requirement in place, Pischnotte & Quinn, The Victim and
Witness Assistance Program, 39 AIR FORCE LAW REVIEW 57 (1996), but not all victims’
rights advocates are impressed with its effectiveness, Senate Hearing II at 38 (prepared
statement of Marlene A. Young, Executive Director, National Organization for Victim
Assistance); id. at 56 (prepared statement of Beverly Harris Elliot, President, National
Coalition Against Sexual Assault).

meaning of the words, the meaning given the same words elsewhere in the law,
implications of Congress’ rejection of proposed alternatives, and explanations within
the Amendment’s legislative history.
Section 3 continues to carry the language found in previous proposals that
denies the Amendment’s benefits to those accused of the crime. As noted earlier, this
would seem disqualify neither of the participants in a mutual assault nor inmates
victimized during their incarceration.
The courts may also consider the word “victim” limited by the insistence in
Section 3 that only the victim or the victim’s lawful representative may claim the
Amendment’s benefits. The concept of “representative” is rather clearly stated in
singular terms, as one who speaks in the interest of the victim rather than in his own
interest;65 parents and other relatives of a deceased or child victim might not
themselves be considered victims simply by virtue of the relationship and and as
discussed below perhaps only one of them could be selected as the victim’s
represent at i v e. 66
The Amendment uses the word “crime” rather than the less inclusive word,
favored in many of the earlier proposals and often in existing federal law, “felony.”
Thus, it seems the Amendment protects the rights of victims of violent crimes other
than felonies, e.g., misdemeanors.67 Of course, crimes which are indisputably
nonviolent clearly cannot provide the foundation for a claim of right under the
Amendment, a result which some may find unsatisfactory in some cases.68
Looking elsewhere in federal law for guidance, the courts might observe that the
term “victim” has been assigned definitions which vary according to the context in
which they are used, although the existing federal victims’ rights statute might be
thought to supply the most instructive description: i.e., “‘victim’ means a person that
has suffered direct physical, emotional, or pecuniary harm as a result of the
commission of a crime, including–(A) in the case of a victim that is an institutional
entity, an authorized representative of the entity; and (B) in the case of a victim who


65 S.Rept. 108-191 at 43 (“In all circumstances involving a ‘representative,’ care must be
taken to ensure that the ‘representative’ truly reflects the interests–and only the interests–of
the victim”).
66 Compare, 18 U.S.C. 3663A(a)(2)(“. . . In the case of a victim who is under 18 years of
age, incompetent, incapacitated, or deceased, the legal guardian of the victim or
representative of the victim’s estate, another family member, or any other person appointed
as suitable by the court, may assume the victim’s rights . . .”).
67 “A ‘crime of violence’ can arise without regard to technical classification of the offense
as a felony or a misdemeanor,” S.Rept. 108-191, at 31.
68 “First, consider the plight of an elderly woman who is victimized by a fraudulent
investment scheme and loses her life’s savings. Second, think of a college student who
happens to take a punch during a bar fight which leaves him with a black eye for a couple
[of] days. I do not believe it to be clear that one of these victims is more deserving of
constitutional protection than the other,” S.Rept. 105-409 at 42 (1998)(additional views of
Sen. Hatch); see also, S.Rept. 108-191, at 50 (additional views of Sen. Hatch); Barnard,
Allocution for Victims of Economic Crimes, 77 NOTRE DAME LAW REVIEW 39 (2001).

is under 18 years of age, incompetent, incapacitated, or deceased, one of the
following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent;
(iv) a child; (v) a sibling; (vi) another family member; or (vii) another person
designated by the court,” 42 U.S.C. 10607(e)(2).69
Of course the definition of “violent crime” plays a large role in determining who
may be considered a victim for purposes of the Amendment. The definition from the
legal dictionaries is very narrow: “violent offenses. Crimes characterized by extreme
physical force such as murder, forcible rape, and assault and battery by means of a
dangerous weapon,” BLACKS LAW DICTIONARY 1564 (7th ed. 1999). It is a
description drawn perhaps from the Federal Bureau of Investigation’s Uniform Crime
Reports which since 1960's have categorized only murder, nonnegligent
manslaughter, forcible rape, robbery, and aggravated assault as “violent crimes.”70
These are crimes against the person. The list includes neither crimes of violence
against property nor those that portend violence. It encompasses neither arson, nor
burglary, nor kidnaping.
Elsewhere in federal law, “violent crime” is sometimes thought of as
synonymous with a “crime of violence,” a concept ordinarily described in more
sweeping terms, e.g., “(a) an offense that has as an element of the use, attempted use,
or threatened use of physical force against the person or property of another, or (b)
any other offense that is a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the
course of committing the offense,” 18 U.S.C. 16 (emphasis added). Unfortunately,
the various definitions of “violent crime” found in federal law are too diverse to yield
a single standard.71 Moreover, many of the earlier proposed victims’ rights


69 In restitution cases, courts might look to the restitution definitions in 18 U.S.C. 3663 and
3663A: “For the purposes of this section, the term ‘victim’ means a person directly and
proximately harmed as a result of the commission of an offense for which restitution may
be ordered including, in the case of an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim
who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian
of the victim or representative of the victim’s estate, another family member, or any other
person appointed as suitable by the court, may assume the victim’s rights under this section,
but in no event shall the defendant be named as such representative or guardian.”
70 United States Department of Justice, Federal Bureau of Investigation, CRIME IN THE
UNITED STATES: UNIFORM CRIME REPORTS–1964 5 (1965); United States Department of
Justice, Federal Bureau of Investigation, CRIME IN THE UNITED STATES 2001, available at
[ h t t p : / / www.f b i . go v] .
71 Compare, “For purposes of this subsection the term ‘crime of violence’ means an offense
that is a felony and–(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (B) that by its nature, involves
a substantial risk that physical force against the person or property of another may be used
in the course of committing the offense,” 18 U.S.C. 924(c)(3)(emphasis added), with,
“‘crime of violence’ means–(A) an offense that has an element of the offense the use,
attempted use, or threatened use of physical force against the person or property of another;
(B) any other offense that is a felony and that, by its nature, involves a substantial risk that
(continued...)

amendments spoke of “crimes of violence as defined by law.” The present proposal
is the first to speak of “violent crimes” and does not closely append a “defined by
law” reference. The difference might be seen as a rejection of the definitions and
definitional diversity of the term “crimes of violence” and perhaps of earlier
interpretations of the “crimes of violence” phrase.
The issue of how the courts will construe the terms “victim” and “violent crime”
becomes less problematic if they can be defined legislatively. A witness at the House
hearings in the 107th Congress and again in the 108th Congress suggested that the
Amendment comes with an implicit understanding that both Congress and state
legislatures have complete latitude to define both “victim” and “violent crime” as
long as they do not violate the Amendment:
It should be noted that States, and the Federal Government, within their
respective jurisdictions, retain authority to define, in the first instance, conduct
that is criminal. The power to define “victim” is simply a corollary of the power
to define the elements of criminal offenses and, for State crimes, the power
would remain with the State Legislatures.
* * *
It is intended that both the word “victim” and the phrase “victim’s lawful
representative” will be the subject of statutory definition by the state legislatures
and the Congress, within their respective jurisdictions. No single rule will
govern these definitions, as no single rule governs what conduct must be
criminal. In the absence of a statutory definition the courts would be free to look
to the elements of an offense to determine who the victim is, and to use its power
to appoint appropriate lawful representatives, Senate Hearing IV at 181, 200;
House Hearing IV at 19, 29 (statement of Steven T. Twist, General Counsel,
National Victims Constitutional Amendment Network); Senate Hearing V;
House Hearing V at 30, 48 (statement of Steven T. Twist, General Counsel,
National Victims Constitutional Amendment Network).
The Senate Judiciary Committee’s analysis of the Congress’ enforcement
authority under similar language in an earlier version of the Amendment made the
similar point:
This provision is similar to existing language found in section 5 of the 14th
Amendment to the Constitution. This provision will be interpreted in similar


71 (...continued)
physical force against the person or property of another may be used in the course of
committing the offense; or (C) any felony under chapter 109A [sexual abuse], 110 [sexual
exploitation of children], or 117 [transportation for illegal sexual activity],” 18 U.S.C.
3156(a)(4)(emphasis added), and with, “‘crime of violence’ means any offense under federal
state law, punishable by imprisonment for a term exceeding one year, that–(1) has an
element of the use or attempted use, or threatened use of physical force against the person
of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of physical injury to
another,” U.S.S.G. §4B1.2(a); see also, “Whoever . . . murders, kidnaps, maims, assaults
with a dangerous weapon, commits assault resulting in serious bodily injury upon, or
threatens to commit a crime of violence against any individual in violation of the laws of any
State or the United States, or attempts or conspires so to do . . . .” 18 U.S.C. 1959(a)(violent
crimes in aid of racketeering activity).

fashion to allow Congress to ‘enforce’ the rights, that is, to ensure that the rights
conveyed by the amendment are in fact respected. At the same time, consistent
with the plain language of the provision, the Federal Government and the States
will retain their power to implement the amendment. For example, the States
will, subject to Supreme Court review, flesh out the contours of the amendment
by providing definitions of ‘victims’ of crime and ‘crimes of violence,’” S.Rept.

106-254 at 41.


Does this mean that either Congress or the states are free to negate the
Amendment by definition? May they define victims of violent crimes to include only
those victims entitled to victims’ rights under state law and only to the extent that
state law permits? May they define victims of violent crimes so narrowly as to
extinguish victims’ rights under the Amendment? No, asserts the Senate Judiciaryth
Committee report on the 108 Congress Amendment. Congress and the states are
free to expand the Amendment’s coverage to embrace victims of nonviolent crimes,
but the Committee intends the term “victim of violent crime” to be understood
broadly and to be so interpreted by the courts:
The amendment extends broadly to all victims of a “violent crime.” The phrase
“violent crime” should be considered in the context of an amendment extending rights
to crime victims, not in other possible narrower contexts. The most analogous federal
definition is Federal Rule of Criminal Procedure 32(f), which extends a right of
allocution to victims of a “crime of violence” and defines the phrase as one that
“involved the use or attempted use of physical force against the person or property of
another. * * * (emphasis added). The Committee anticipates that the phrase “violent
crime” will be defined in these terms of “involving” violence, not a narrower
“elements of the offense” approach employed in other settings. See, e.g., 18 U.S.C.
16. Only this broad construction will serve to protect fully the interests of all those
affected by criminal violence.
* * *
Of course, not all crimes will be “violent” crimes covered by the amendment.
For example, the amendment does not confer rights on victims of larceny, fraud, and
other similar offenses. At the same time, many States have already extended rights to
victims of such offenses and the amendment in no way restricts such rights. In other
words, the amendment sets a national “floor” for the protecting of victims rights, not
any sort of “ceiling,” S.Rept. 108-191, at 31, 32.
The Committee’s reference to crimes of “physical force against the . . . property of
another” as qualifying “violent crimes” seems to support the argument that a victim
covered by the Amendment includes anyone whose property interest might
unlawfully be made the subject of the use of physical force, i.e., victims may include
not only individuals but any legal entity capable of holding an interest in property.
This reference and other remarks indicate the Committee understands the term “crime
of violence” to describe crime violent or potentially violent in either its nature or its
circumstances.72


72 “It should also be obvious that a crime of violence can include not only acts of
consummated violence but also of intended, threatened or implied violence. The unlawful
displaying of a firearm or firing of a bullet at a victim constitutes a ‘violent crime’
regardless of whether the victim is actually injured. Along the same lines, conspiracies,
attempts, solicitations and other comparable crimes to commit a crime of violence should
(continued...)

Rights in What System.
The Amendment makes little mention of the systems it reaches. It clearly
applies to both federal and state criminal justice systems (“The rights of victims of
violent crime . . . are hereby established and shall not be denied by any State or the
United States . . .”). The elimination of the provision found in earlier proposals that
address its coverage elsewhere might be construed as an indication that the
Amendment on its face is inapplicable to juvenile proceedings, to proceedings before
military tribunals, or to criminal proceedings in territorial or tribal courts. On the
other hand, the omission may be seen as the elimination of redundancy, since each
of the systems functions ultimately under the authority of either a state or the United
S t at es. 73
Notice
Notice in the world of victims’ rights takes three forms, notice to the victim: (1)
of his or her rights, (2) of the status of the criminal investigation and prosecution, as
well as the time, place, and outcome of related judicial proceedings, and (3) of the
release or escape of the accused or convicted offender. Notice allows victims to
assert their rights, facilitates their participation, assures them that justice is being
done, and affords them the opportunity to take protective measures. The Amendment
does not include a right to notification of the Amendment’s benefits. Its provision
for notification of release or escape applies only prior to conviction, i.e., only with
respect to the release or escape of the accused. It does, however, entitle victims to
reasonable and timely notice of all public proceedings involving the crime.


72 (...continued)
be considered crimes of violence for purpose of the amendment if identifiable victims exist.
Similarly, some crimes are so inherently threatening of physical violence that they could be
“violent crime” for purposes of the amendment. Burglary, for example, is frequently
understood to be a crime of ‘crime of violence’ because of the potential for armed, or other
dangerous confrontation. Similarly, sexual offense against a child, such as child molestation,
can be ‘violent crimes’ because of the fear of the potential for force which is inherent in the
disparate status of the perpetrator and victim and also because evidence of severe and
persistent emotional trauma in its victims gives testament to the molestation being unwanted
and coercive. . . .Some crimes, such as drug or espionage offenses, do not ordinarily have
such an identifiable victim and therefore would not ordinarily be covered by the amendment.
However, in some unusual cases, a court might conclude that these offense in fact involved
violence against an identifiable victim. For example, treason or espionage against the
United States resulting death or injury to an American government official would produce
an identifiable victim protected by the amendment,” S.Rept. 108-191, at 31-2 (internal
citations omitted).
73 S.Rept. 108-191 at 78 (minority views)(arguing that based on the Amendment’s history
its requirements would presumably apply to military courts martial and to military
commissions conducted under federal authority in the United States).

Contemporary Practices.
A general right to notice of available rights and services is found in more than
a few state codes and constitutions, either in the form of a victims’ right or of a74
governmental obligation. Existing federal law imposes the obligation on federal
officials, 42 U.S.C. 10607. Nevertheless, its presence in the Amendment would
represent a departure from the cast of most U.S. constitutional rights and in past
proposals has given at least one member of the Senate Judiciary Committee pause.75
Most states give victims the option of being notified when an offender is to be76
released or has escaped from custody. Existing federal law, extends the notification
option only to the release of offenders, 42 U.S.C. 10605(b)(7). State constitutional77
amendments ordinarily require notification of court proceedings; several, by
constitution or statute or both, require notification of the arrest of an accused or other78


information concerning the status of the investigation or prosecution.
74 E.g., TENN.CONST. art.II, §2 (“victims shall be entitled to the following basic rights . .
. 8. The right to be informed of each of the rights established for victims”); ARK.CODE ANN.
§16-90-1107 (“After initial contact between a victim and a law enforcement agency
responsible for investigating a crime, the agency shall promptly give in writing to the victim:
(1) an explanation of the victim’s rights under this subchapter and (2) Information
concerning the availability of [various victims’ assistance, compensation, protection and
other services]”).
75 S.Rept. 105-409 at 43-4 (additional views of Sen. Hatch) (“No other constitutional
provision mandates that citizens be provided notice of the rights vested in the Constitution
— not even the court-created Miranda warnings are constitutionally required. [The clauses
of the Bill of Rights are ordinarily] written in terms of what the Government cannot do to
the individual, not in terms of what the individual can exact from the Government. This
clause in the proposed victims’ rights amendment would create an affirmative duty on the
Government to provide notice of what rights the Constitution provides, turning this
formulation on its head. . . . I fear that this provision might generate a body of law which
will make fourth amendment jurisprudence simple by comparison. Finally, Congress will
be empowered by section 3 of the proposed amendment to enforce its provisions,
presumably including the question of how governmental entities must provide victims
notice. Will this permit Congress to micro manage the policies and procedures of our State
and local law enforcement agencies, prosecutors, and courts?”).
76 E.g., W.VA.CODE §61-11A-8; WYO.STAT. §1-40-204.
77 ALA.CONST., Amend. 557; ALASKA CONST. art.I, §24; ARIZ.CONST. art.2, §2.1; COLO.
CONST. art.II, §16a; CONN. CONST. art.I, §8[b.]; FLA.CONST. art.I, §16(b); IDAHO CONST.
art.I, §22; ILL. CONST. art.I, §8.1; IND.CONST. art.1, §13; LA.CONST. art.1, §25; KAN.CONST.
art.15, §15; MD.D.OF RTS. art.47; MICH.CONST. art.I, §24; MISS. CONST. art. 3,§26A;
MO.CONST. art.I, §32; NEB.CONST. Art.1, §28; NEV.CONST. art.1, §8; N.MEX. CONST. art.II,
§24; N.C. CONST. art.I, §37; OHIO CONST. art.I, §10a; OKLA.CONST. art.II, §34; ORE.
CONST. art. I, §24; S.C.CONST. art.I, §24; TENN.CONST. art.I, §35; TEX.CONST. art.I, §30;
UTAH CONST. art.I, §28; VA.CONST. art.I, §8-A; WASH.CONST. art.I, §35; WIS. CONST. art.I,
§9m.
78 E.g., S.C.CONST. Art.I, §24 (“victims of crime have the right to . . . be reasonably
informed when the accused . . . is arrested. . . .”); NEV.CONST. Art. 1, §8[2] (“The legislature
shall provide by law for the rights of victims of crime . . . to be (a) Informed, upon written
(continued...)

Past Proposals.
The resolutions introduced in the 104th Congress offered crime victims the right
to notification of related proceedings, of the release or escape,79 and came with a right
to be informed of the amendment’s benefits.80 The pattern continued in successive
Congresses with some alterations. The resolutions thereafter spoke of notice of
related “public proceedings,” struggled with the issue of notification of closed parole
hearings,81 and maintained a right to be informed of the amendments’ benefits:82
A victim . . . shall have the right . . . to reasonable notice of, and not to be
excluded from, any public proceedings relating to the crime. . . to the foregoing
rights at a parole proceeding that is not public, to the extent those rights are
afforded to the convicted offender . . . to reasonable notice of a release or
escape from custody relating to the crime . . . and to reasonable notice of the
rights established by this article. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th
Cong.).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have the right to reasonable and
timely notice of any public proceeding involving the crime and of any release
or escape of the accused;


78 (...continued)
request, of the status or disposition of a criminal proceeding at any stage of the
proceeding”); ALA.CODE –15-23-62 (“. . . the law enforcement agency shall provide to the
victim . . . the following information . . . (3) the name of the law enforcement officer and
telephone number of the law enforcement agency with the following statement attached: `If
within 60 days you are not notified of an arrest in your case, you may call . . . for the status
of the case . . .”).
79 H.J.Res. 173(“notice of . . . every stage of the public proceedings . . . to be informed of
any release or escape of the defendant”); H.J.Res. 174(“to be informed of . . . every
proceeding . . . to be informed of any release or escape”); S.J.Res. 52 (same); S.J.Res.

65(“notice of . . . all public proceedings . . . to notice of a release . . . or an escape).


80 H.J.Res. 174 (“notice of the victim’s rights”); S.J.Res. 52 (same); S.J.Res. 65 (“notice
of the rights established by this article”).
81 E.g., H.J.Res. 71 (105th Cong.)(“a victim . . . shall have the right . . . to the rights
described in the preceding portion of this section [relating to notice, attendance, and
participation rights in public proceedings] at a parole proceeding that is not public, to the
extent those rights are afforded to the convicted offender”).
82 E.g., S.J.Res. 6 (105th Cong.)(“Each victim . . . shall have the rights . . . to notice of the
rights established by this article; however, the rights to notice under this section are not
violated if the proper authorities make a reasonable effort, but are unable to provide the
notice, or if the failure of the victim to make a reasonable effort to make those authorities
aware of the victim’s whereabouts prevents that notice”); H.J.Res. 64 (106h Cong.)(“a
victim . . . shall have the rights . . . to reasonable notice of the rights established by this
article”).

The Amendment differs from its antecedents in five respects. First, it demands
that notice be timely as well as reasonable. Second, it drops all references to parole
proceedings. Third, it extends to proceedings “involving the crime” rather than to
proceedings “related to the crime.” Fourth, the Amendment promises notice of the
release or escape of “the accused.” Fifth, there is no longer any declaration that a
victim is entitled to notification of his or her rights under the Amendment.
The Amendment’s grant of rights is subject to obvious facial limitations:
- the notice rights apply only with respect to public proceedings;
- the rights attach to those proceedings involving the crime not those related to
the crime;
- victims are only entitled to reasonable and timely notice; and
- victims are only entitled to notice of the release or escape of the accused.
Public Proceedings.
The “public proceedings” feature is not new. Yet there has always been some
question whether courts and legislative bodies might by closing otherwise public
proceedings curtail victims’ notification and other rights that would otherwise be
beyond judicial or legislative reach. The history of past proposals indicates that this
may be the case:
Victims’ rights under this provision are also limited to ‘public proceedings.’
Some proceedings, such as grand jury investigations, are not open to the public
and accordingly would not be open to the victim. Other proceedings, while
generally open, may be closed in some circumstances. For example, while plea
proceedings are generally open to the public, a court might decide to close a
proceeding in which an organized crime underling would plead guilty and agree
to testify against his bosses. See 28 C.F.R. 50.9. Another example is provided
by certain national security cases in which access to some proceedings can be
restricted. See ‘The Classified Information Procedures Act’ 18 U.S.C. App.3.
A victim would have no special right to attend. The amendment works no
change in the standards for closing hearings, but rather simply recognizes that
such nonpublic hearings take place. S.Rept. 108-191 at 34; see also, S.Rept. 106-83


254 at 30, S.Rept. 105-409 at 25.


83 S.Rept. 108-191 at 38 (“The right to be heard is also limited to ‘public proceedings.’ As
discussed previously at greater length, a victim has no right to be heard at a proceeding that
the court has properly closed under the existing standards governing court closures”); cf.,
Senate Hearing V; House Hearing V at 35 (statement of Steven T. Twist)(emphasis
added)(“The right would also extend to post-conviction public release proceedings, for
example parole or conditional release hearings. In jurisdictions that have abolished parole
in favor of truth in sentencing regimes, many may still have conditional release. Only if the
jurisdiction also has a ‘public proceeding’ prior to such a conditional release would the
right attach”); see also, Senate Hearing IV at 187; House Hearing IV at 22.

Involving the Crime.
The breadth of the phrase “involving the crime” used to described the public
proceedings covered by the notification right may raise questions too. The phrase
clearly contemplates more than trial. Pre-trial and post-trial hearings involving
motions to dismiss, to suppress evidence, to change venue, to grant a new trial, and
any of the host of similar proceedings that flow to or from a criminal trial seem to
come within the meaning of the term. The Senate reports’ discussion of proceedings
“related to the crime” in earlier versions, for instance, specifically mention appellate
proceedings, S.Rept. 106-254 at 31, S.Rept.105-409 at 26.
The same reports indicate that at least at one time covered release proceedings
were understood to include those involving “a release [from custody] of a defendant
found not guilty of a crime by reason of insanity and then hospitalized in custody for
further treatment,” Id. at 36 and 30. Crime relatedness, understood in such terms,
would presumably carry victim notice rights to a fairly wide range of civil and quasi-
civil proceedings, e.g., habeas and civil forfeiture proceedings, deportation and
extradition hearings, and administrative disciplinary reviews (if conducted publicly
before a tribunal) to name but a few.
It may be for this reason that the phrase was changed to “involving the crime,”
a phrase that arguably imposes greater limits on the class of proceedings than might
be considered “related,” although not clearly sufficient to excuse notice of the habeas,84
forfeiture, deportation, or the extradition proceedings. Historical proposals were
thought to perhaps embody notice rights for the victims of a defendant’s past crimes,
and victims of charges that have been dropped or dismissed, as well as victims of


84 One witness, however, thought it more likely to confirm an intent to embrace civil
proceedings, Senate Hearing V; House Hearing V at 79 (statements of James Orenstein)
(“Some public proceedings ‘involving the crime’ are civil in nature, and normally proceed
without any participation by the executive branch of government. Here again, the changeth
in language from S.J.Res. 3 [106 Cong.] could be problematic: that bill used the phrase
‘relating to the crime’ which the Senate Judiciary Committed noted would ‘typically . . . be
the criminal proceedings arising from the filed criminal charges, although other proceedings
might also be related to the crime.’ Senate Report at 30-31. A court interpreting the current
bill might conclude that the change from ‘relating to’ to ‘involving’ was intended to make
it easier to apply the Amendment to proceedings outside the criminal context “); see also,
Senate Hearing IV at 122; House Hearing IV at 50.

charges that had resulted in acquittal.85 The change might be considered a
repudiation of that construction as well.
The Senate Judiciary Committee, however, indicates that no such repudiation
was intended and states simply that the “public proceedings are those ‘relating to the
crime,’” S.Rept. 108-191 at 34. In doing so, it might be thought to have embraced
earlier descriptions of proceedings related to the crime, even though the Committee’s
examples in the 108th Congress are much more modest in some places, id. (“the right
applies not only to initial hearings on a case, but also rehearings, hearing at an
appellate level, and any case on a subsequent remand”).86
Reasonable and Timely Notice.
The addition of “timely” unquestionably seems significant, because it would
appear to greatly reduce the prospect of “reasonable” but ineffective notice. Yet the
Committee report issued after the change makes no note of it and continues to
describe the obligation in the same terms used prior to the change.87 Under past
proposals it was unclear whether reasonableness was to be judged by the level of
official effort or by the effectiveness of the effort. The Senate reports noted and
continue to note that heroic efforts were not expected but due diligence was, S.Rept.
108-191 at 34; S.Rept. 106-254 at 30, S.Rept. 105-409 at 25. Yet the obvious
purpose for the right to notice was to provide a gateway to the Amendment’s other
rights. Even without the addition of the clarifying “timely” requirement, what was


85 “Frequently, criminal defendants are suspected to have committed crimes for which they
are never charged or for which charges are later dropped, even though significant evidence
may exist that the defendant did indeed commit the crime. Do the victims of these crimes
have rights under the proposed amendment? If so, are they the same as the rights of the
victims of charged counts or of the defendant? Such victims, of course, would have the
same rights to notice and allocution relating to conditional release, the acceptance of
negotiated pleas (perhaps substantially complicating plea bargains) and sentencing,” S.Rept.

105-409 at 42 (additional views of Sen. Hatch).


Under existing federal law, sentencing courts must consider “relevant conduct” that
is “part of the same course of conduct or common scheme or plan as the offense of
conviction,” U.S.S.G. §1B1.3(a)(2), that includes misconduct for which the defendant has
never been charged or even for which he may have been acquitted, United States v. Watts,

519 U.S. 148 (1997).


86 But see, S.Rept. 108-191 at 35 (“The release [which triggers a notification requirement]
must be one ‘relating to the crime.’ This includes not only a release after a criminal
conviction but also, for example, a release of a defendant found not guilty of a crime by
reason of insanity and then hospitalized in custody for further treatment, or a release
pursuant to a habitual sex offender statute ”). As discussed below, this statement seems
totally at odds with the use of the word “accused” rather than “offender” in the text of the
Amendment; “after a criminal conviction” or after “a defendant [is] found not guilty of a
crime by reason of insanity,” the individual can no longer to called “accused.”
87 Compare, S.Rept. 108-191 at 33-34, with, S.Rept. 106-254 at 30-1, S.Rept. 105-409 at

25-6.



reasonable might have been judged by whether the efforts were calculated to permit
meaningful exercise of the Amendment’s other rights.88
The Senate reports, however, explain that in rare circumstances notice by
publication might be reasonable,89 although if judged by existing due process
standards such notice might not be adequate in ordinary circumstances.90 Notice
given after a proceeding was conducted might have seemed unreasonable because the
want of timely notice might constitute an effective exclusion from the proceedings
or might defeat the right to make a victim impact statement.91 The addition of a


88 The right to notice of hearings at which an individual has a right to be heard is a
component of due process under existing law. “The Supreme Court has long made clear that
due process requires notice reasonably calculated to provide actual notice of the proceedings
and a meaningful opportunity to be heard. In City of West Covina v. Perkins, [525 U.S. 234,
240] (1999), the Court explained the notice requirement in these words: A primary purpose
of the notice required by the Due Process Clause is to ensure that the opportunity for a
hearing is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950)(‘Th[e] right to be heard has little reality or worth unless one is informed that the
matter [affecting one’s property rights] is pending and can choose for himself whether to
appear or default, acquiesce or contest’)”, Nazarove v. INS, 171 F.3d 478, 482-83 (7th Cir.

1999).


89 S.Rept. 106-254 at 30 (“In rare mass victim cases (i.e., those involving hundreds of
victims), reasonable notice could be provided by mean[s] tailored to those unusual
circumstances, such as notification by newspaper or television announcement”); see also,
S.Rept. 105-409 at 25.
90 Small v. United States, 136 F.3d 1334, 1336 (D.C.Cir. 1998)(“‘An elementary and
fundamental requirement of due process in any proceeding which is to be accorded finality
is notice reasonably calculated, under all the circumstances to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.’
Mullane v. Central Hanover Bank & Truest Co., 339 U.S. at 314. As Mullane made clear,
the Due Process Clause does not demand actual, successful notice, but it does require a
reasonable effort to give notice. ‘[P]rocess which is mere gesture is not due process. The
means employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.’ Mullane, 339 U.S. at 315. . . . [T]he Mullane Court
observed that ‘[c]hance alone brings to the attention of even a local resident an
advertisement in small type inserted in the back pages of a newspaper.’ Id. Almost fifty
years after Mullane, in an increasingly populous and mobile nation, newspaper notices have
virtually no change of alerting an unwary person that he must act now forever lost his
rights”).
The Senate reports noted that “reasonableness” must be judged by the circumstances
of an individual case. Thus, “[w]hile mailing a letter would be ‘reasonable’ notice of an
upcoming parole release date, it would not be reasonable notice of the escape of a dangerous
prisoner bent on taking revenge on his accuser,” S.Rept. 108-191 at 35; S.Rept. 106-254 at

36;. S.Rept. 105-409 at 30.


91 On a related question, “[i]t has long been established that due process allows notice of
a hearing (and its attendant procedures and consequences) to be given solely in English to
a non-English speaker if the notice would put a reasonable recipient on notice that further
inquiry is required,” Nazarova v. INS, 171 F.3d at 483. Due process, however, does include
the right of a non-English speaker to have interpreter present in order to participate in a
proceeding at which the individual has a right to be heard, Id. at 484-85.

timeliness requirement seems to reduce the possibility of “reasonable” but untimely
notification. 92
In the context of release notifications, the most vexing reasonableness questions
may not involve individual circumstances but general conditions. In some
jurisdictions, the Amendment may require notification of a host of victims who
would not previously have been entitled to notification and whose identity and
location is therefore unknown to custodial authorities.93 Would publication notice
be considered reasonable in such cases? Would the existence of an online or other
automated system available to the general public and containing release and escape
dates retrievable by prisoner name, without more, constitute reasonable notice?
Application may be particularly challenging in the area of bail. The Amendment
grants both a right to consideration of the victim’s safety and a right to reasonable
notice and attendance. Under normal circumstances it might not be unusual for an
accused to be released on recognizance or bail before authorities could reasonably be
expected to provide victims with timely notice. It may be that the Amendment
contemplates postponement of the accused’s initial judicial appearance until after
victims can be notified and can be given a reasonable period of time to prepare and
present their views. At one time, amendment proposals seem to explicitly anticipate
that a failure of timely notice in a bail context could be rectified by recourse to the
provision in the Amendment that permitted the bail decision to be revisited at the
behest of a victim.94 The Amendment no longer contains that explicit provision, but


92 In the view of one commentator, “‘Timely’ notice would require that the victim be
informed enough in advance of a public proceeding to be able reasonably to organize his or
her affairs to attend,” Senate Hearing V; House Hearing at 31 (statement of Steven T.
Twist); see also, Senate Hearing IV at 183; House Hearing IV at 20 (statement of Steven
T. Twist).
93 Not every state has both a release and escape notification statute, many have only one
or the other. Some may limit the victims entitled to notice more narrowly than the
Amendment. The Amendment grants victims of violent crimes the right to notice; some
offer the right only to victims of certain violent crimes, e.g., Wis.Stat.Ann. §304.063
(victims of homicide, sexual assault, and child molestation). The Amendment applies to
escapes and releases occurring after its effective date regardless of when the underlying
crime occurred; many jurisdictions apply the right with respect to self-identifying victims
of prisoners sentenced after the effective date of the statutory provision creating or
implementing the right, e.g., N.Y.Crim.Pro.Law §380.50 (notice is provided by certified
mail to victims who have submitted notification cards distributed to them shortly after the
defendant is sentenced).
94 Past proposals had a provision which declared, “. . . Nothing in this article shall provide
grounds to . . . reopen any proceeding . . . except with respect to conditional release . . . .”
e.g., S.J.Res. 3 (106th Cong.). Since the amendment has no similar prohibition on reopening
at the petition of a victim, no bail exception is necessary. Of course, whether the initial bail
hearing is delayed or the accused is re-arrested following the victim’s petition to reopen, the
result is the same–an accused is detained longer than would otherwise be the case in the
name of victims’ rights, S.Rept. 105-409 at 44 (additional views of Sen. Hatch)(“This
provision in particular has perhaps the greatest potential to collide with the legitimate right
of defendants. All defendants and convicts have a constitutionally protected liberty interest
(continued...)

nothing in the Amendment precludes revisitation – other than abandonment of the
earlier explicit provision perhaps.
Release or Escape of the Accused.
For the first time, the Amendment refers to notice of the release or escape of the
accused. The implication is that there is no right to notice of a release or escape
following conviction, since at that point the defendant is “convicted” rather than
“accused.” If this is the Amendment’s meaning, the consequences of the change are
considerable. The administrative burdens associated with notifying victims every
time an inmate is released from custody are not insignificant, particularly in those
jurisdictions without any comparable requirement of their own. This is especially
true if the Amendment is construed to apply to the future release or escape of
prisoners convicted of crimes committed prior to the effective date of the
Amendment.
Nevertheless, the Committee report in the 108th Congress suggests that the
Senate Judiciary Committee considers the terms “accused” and “convicted”
interchangeable and intended no change from earlier more generously worded
proposals:
The release [which triggers a notification requirement] must be one “relating to
the crime.” This includes not only a release after a criminal conviction but also, for
example, a release of a defendant found not guilty of a crime by reason of insanity and
then hospitalized in custody for further treatment, or a release pursuant to a habitual
sex offender statute, S.Rept. 108-191 at 35.
No Rights Warnings.
Notice of rights had been a feature of the past proposals from the beginning. It
followed the lead of several state constitutions and statutes. It was perhaps seen as
a victim’s counterpart to the Miranda warnings enjoyed by an accused and as a
prerequisite if the Amendment were to function effectively.95 There were objections,
however, that the warnings were out of character with the other rights conveyed by
the Constitution and might pose implementation problems – objections that96


ultimately prevailed apparently.
94 (...continued)
in conditional release, once such release is granted. Permitting victims to move to reopen
such proceedings or invalidate such rulings, would, of course, necessitate the re-arrest and
detention of released defendants and convicts, likely implicating their liberty interest”).
95 “Victims’ rights are of little use if victims remain unaware of them. Since victims
deserve the eight basic rights [of the amendment], they should be informed about those
rights. Not only does this serve to ensure that victims can exercise their rights, but it can
even improve the functioning fo the criminal justice process. Victims who have been
informed about their role in the process are in a better position to cooperate with police,
prosecutors, and courts to bring about a proper resolution of the case. Victims deserve
appropriate notice of their rights in the process,” S.Rept. 106-254 at 26.
96 “I have significant concerns about the necessity and wisdom of . . . providing that
(continued...)

Not to Be Excluded
The Constitution promises the accused a public trial by an impartial jury97 and
affords him the right to be present at all critical stages of the proceedings against
him.98 It offers victims no such prerogatives. Their status is at best that of any other
member of the general public and, in fact, the Constitution screens the accused’s right
to an impartial jury trial from the over exuberance of the public.99


96 (...continued)
covered victims shall have right ‘to reasonable notice of the rights established’ by the
amendment. No other constitutional provision mandates that citizens be provided notice of
the rights vested by the Constitution – not even the court-created Miranda warnings are
constitutionally required. In an analogous context, Justice O’Connor noted that ‘the free
exercise clause is written in terms of what the Government cannot do to the individual, not
in terms of what the individual can exact from the Government,’ This clause in the proposed
victims’ rights amendment would create an affirmative duty on the Government to provide
notice of what rights the Constitution provides, turning this formulation on its head.
“Moreover, I do not believe that sufficient consideration has been given to the practical
aspects of the requirement. Which governmental entity would be required to provide the
notice? Would it be the police, when taking a crime report? The prosecutor prior to seeking
an indictment or filing an information? Or perhaps the court at some other stage in the
process? At what point would the right attach – when the crime is committed? When an
arrest is made? . . .Does the term presume that the government entity providing notice must
have assimilated the Supreme Court’s latest jurisprudence interpreting victims’ rights when
giving notice? . . . .
“Finally, Congress will be empowered . . . to enforce its provisions presumably
including the question of how governmental entities must provide victims notice. Will this
permit Congress to micro manage the policies and procedures of our state and local law
enforcement agencies, prosecutors, and courts? I believe greater consideration must be
given to these questions before a right to notice of the rights guaranteed by the amendment
is included in the Constitution,” S.Rept. 105-409 at 43-4 (additional views of Sen. Hatch).
97 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence,” U.S.Const. Amend. VI (emphasis added).
98 United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999), citing, United States v.
Gagnon, 470 U.S. 522, 526 (1985), and Faretta v. California, 422 U.S. 806, 819n.15 (1975).
99 Woods v. Dugger, 923 F.2d 1454, 1459-460 (11th Cir. 1991)(finding a Sixth Amendment
violation in a case involving the murder of a prison guard, marked by extensive pretrial
publicity, in a community where the prison system employed a substantial percentage of the
population, and in which more than half of the members in attendance during the course of
the trial were uniformed prison guards); Norris v. Risley, 918 F.2d 828, 834 (9th
Cir.1990)(finding a Sixth Amendment violation in a kidnaping/rape case in which women
wearing “Women Against Rape” buttons permeated the courtroom and its environs)(“we
find the risk unconstitutionally great that these large and boldly highlighted buttons tainted
Norris’s right to a fair trial both by eroding the presumption of innocence and by allowing
extraneous, prejudicial considerations and cross-examination”). Norris also noted a similar
view among the state courts, “A decision of the West Virginia Supreme Court is informative
(continued...)

Moreover, victims are even more likely to be barred from the courtroom during
trial than members of the general public. Ironically, the victim’s status as a witness,
the avenue of most likely access to pre-trial proceedings, is the very attribute most
likely to result in exclusion from the trial.
Sequestration, or the practice of separating witnesses and holding outside the
courtroom all but the witness on the stand, is of ancient origins and “consists merely
in preventing one prospective witness from being taught by hearing another’s
testimony.”100 The principle has been embodied in Rule 615 of the Federal Rules of
Evidence and in state rules that adopt the federal practice.101
Victims’ advocates contend that it should be fundamental that individuals may
attend the entire trial involving the crime visited upon them. Yet an absolute right
to attend all proceedings may sometimes be unfair, and in some instances even a
violation of due process or the right to trial by an impartial jury.
The Amendment assures victims of the right not to be excluded from any public
proceedings involving the crime. It is one area where balancing the interests of
victim, defendant, and government may be most challenging. The right brings with
it no auxiliary right to transportation to such proceedings, a companion that might
accompany a right to attend. It applies to only those functions that qualify as official
“proceedings.” It operates only with respect those proceedings that are “public.”
Contemporary Practices.
In response to the debate, about a third of the states now permit victims to attend
all court proceedings regardless of whether the victim is scheduled to testify;102


99 (...continued)
regarding the wearing of buttons during trial. State v. Franklin, 327 S.E.2d 449 (W.Va.

1985) involved a prosecution for driving under the influence of alcohol, resulting in death.


During the trial, various spectators from an organization campaigning under the acronym
MADD (Mothers Against Drunk Driving) wore buttons inscribed with the capital letters
MADD. Most jurors knew what the initials stood for. In reversing the conviction and
remanding for a new trial, the court noted that the trial court’s ‘cardinal failure . . . was to
take no action whatever against a predominant group of ordinary citizens who were tooth
and nail opposed to any finding that the defendant was not guilty.’ Id. at 455,” 918 F.2d at

832.


100 VI WIGMORE ON EVIDENCE §§1837, 1838 (1940 ed.).
101 F.R.Evid. 615(“At the request of a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its own
motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person designated as its
representative by its attorney, (3) a person whose presence is shown by a party to be
essential to the presentation of the party’s cause, or (4) a person authorized by statute to be
present”).
102 A few accomplish this result by requiring the victims who are witnesses testify first and
then be allowed to remain, e.g., VT.R.EVID. 615 (“At the request of a party the court shall
(continued...)

another group allows witnesses who are victims to attend subject to a showing as to
why they should be excluded;103 a few leave the matter in the discretion of the trial
court;104 and some have maintained the traditional rule – witnesses are sequestered
whether they are victims or not.105
Subject to Rule 615 of the Federal Rules of Evidence which permits exclusion
of victim/witnesses, the federal statutory victims’ bill of rights recognizes the right
of victims “to be present at all public court proceedings related to the offense, unless
the court determines that testimony by the victim would be materially affected if the
victim heard other testimony at trial,” 42 U.S.C. 10606(b)(4).
In federal capital cases, victims who attend a trial are not disqualified from
appearing as witnesses at subsequent sentencing hearings absent a danger of unfair
prejudice, jury confusion, of the jury being misled, or as constitutionally required.106
In other federal criminal cases, victims may be excluded from trial only as
constitutionally required, 18 U.S.C. 3510(a).
Past Proposals.
Almost from the beginning virtually every proposed amendment granted crime
victims the right “not to be excluded” from related public proceedings:107


102 (...continued)
order witnesses excluded so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion; after a witness’ testimony has been completed,
however, the witness may remain within the courtroom, even if the witness subsequently
may be called upon by the other party or recalled in rebuttal, unless a party shows good
cause for the witness to be excluded. . .”).
103 E.g., CONN.CONST. art.I, §8[b.](the victim has the right to attend the trial and all other
court proceedings the accused has the right to attend, unless such person is to testify and the
court determines that such person’s testimony would be materially affected if such person
hears other testimony); FLA.CONST. Art.1, §16(b)(victims have the right to be present at all
critical stages of the criminal proceedings to the extent that the victim’s presence does not
interfere with the constitutional rights of the accused).
104 E.g., WASH.R.EVID. 615 (emphasis added)(“At the request of a party the court may
order witnesses excluded so that they cannot hear the testimony of other witnesses . . .”).
The federal rule in contrast declares that the court “shall” order sequestration under such
circumstances.
105 E.g., HAW.R.EVID. 615.
106 18 U.S.C. 3510(b); 3593(c). See also, United States v. McVeigh, 958 F.Supp. 512, 514-
15 (D.Colo. 1997)(permitting victims to attend trial with the observation that the court’s
control over any subsequent sentencing hearing would permit protective measures against
any prejudicial impact). The McVeigh trial court had barred victim-witnesses from trial
prior to the enactment of section 3510 and the amendment of section 3593(c). Following
that initial sequestration order, the Court of Appeals had held that victim-witnesses had no
standing based on 42 U.S.C. 10606 to seek mandamus in order to overturn the lower court’sth
sequestration order, United States v. McVeigh, 106 F.3d 325, 334-35 (10 Cir. 1997).
107 The exceptions occurred early on, H.J.Res. 173 (104th Cong.)(the right “to be present
(continued...)

A victim . . . shall have the right[] . . . not to be excluded from, any public
proceedings relating to the crime. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th
Cong.).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have the right . . . not to be
excluded from such public proceeding . . . .
It has been suggested that the phrase “not to be excluded” in the Amendment
was originally used to avoid the claims that the Amendment entitled victims to
transportation to relevant proceedings or to have proceedings scheduled for their
convenience or to free them from imprisonment, S.Rept. 108-191 at 35-6; S.Rept.
106-254 at 31, S.Rept. 105-409 at 26.108 In this it would be unlike a defendant’s right
to attend. Yet like a defendant’s right to attend, the use of the phrase has been
thought to permit exclusion of the victim for disruptive behavior, excessive displays
of emotion, and other forms of impropriety for which a defendant might be excluded,
Id.
Under existing law, the usual rationale for exclusion is to prevent victim/
witnesses from having their testimony colored by the testimony of other earlier
witnesses.109 Victim exclusion is one of the features of existing law that the
Amendment seeks to overcome. How its command may be implemented is less
apparent. In single victim cases, both constitutional policies (victim’s rights and
defendant’s due process rights) could be honored simply by having the victim testify
first. The two policies might also be reconciled by refusing to allow attending
victims to testify, since the right not to be excluded does not include the right to
testify and the right to be heard does not extend to trial testimony. The issue might
be resolved alternatively on victim-defendant equality grounds. The defendant is
constitutionally entitled to attend the entire trial even if he is ultimately to be a
witness. The Amendment may be seen as an equalizer. If so, it may not preclude
defense counsel from commenting upon a victim’s opportunity to color his or her
testimony.110


107 (...continued)
at, every stage of the public proceedings, unless the court determines there is good cause forth
the victim not to be present”); H.J.Res. 174 (104 Cong.)(“given the opportunity to be
present at every proceeding in which those rights are extended to the accused or convictedth
offender”); S.J.Res. 52 (104 Cong.) (same).
108 One hearing witness suggested that omission of the phrase “if present” from earlier
versions of this provision might undermine this purpose, House Hearing V at 79; Senate
Hearing IV at 121-22; House Hearing IV at 50 (statement of James Orenstein).
109 “The purpose behind the sequestration of witnesses is to discourage and expose
fabrication, inaccuracy and collusion. see [F.R.Evid. 615] Notes of Advisory Committee on
Proposed Rules, and to minimize the opportunity that each witness will have to tailor his
testimony,” United States v. Hickman, 151 F.3d 446, 454 (5th Cir. 1998).
110 Portuondo v. Agard, 529 U.S. 61, 73 (2000)(“Allowing comment upon the fact that a
defendant’s presence in the courtroom provides him a unique opportunity to tailor his
(continued...)

The application of the “public proceeding” limitation may be as uncertain here
as in the case of victim notification. There may be some question as to what
standards should be used to determine whether proceedings should be considered
“public” for purposes of the Amendment and whether the public or confidential
character of proceedings is subject to judicial, legislative or administrative
adjustments. A court might seek instruction from the law governing the rights of the
public to attend judicial proceedings.
A public trial is among the rights the Sixth Amendment promises the criminally
accused. Even where the accused agrees to closed proceedings, First Amendment
free press interests may require open proceedings. When asked whether particular
proceedings may be closed to the press, the courts have considered “whether the
place and process have historically been open to the press and general public . . .
[and] whether public access plays a significant positive role in the functioning of the
particular process in question,” Press-Enterprise Co. v. Superior Court (Press-
Enterprise II), 478 U.S. 1, 8 (1986). When asked to close particular proceedings over
the objections of the accused, the courts, using the standards developed in press
access cases, have demanded that “the party seeking to close the hearing must
advance an overriding interest that is likely to be prejudiced, the closure must be no
broader than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make findings adequate
to support the closure.”111
There may be some related uncertainty over whether the Amendment’s
attendance right applies to historically public events that are now ordinarily held
privately. For example, does the Amendment empower immediate family members
of a murder victim to be notified of and attend the execution of the defendant?
Historically, capital punishment and other types of corporal punishment were
publicly administered.112 Victims and anyone else so inclined might attend.113 Most
state laws now call for executions to occur in the presence of official witnesses,
rather than being conducted publicly. Those who attend are either identified by


110 (...continued)
testimony is appropriate – and indeed, given the inability to sequester the defendant,
sometimes essential – to the central function of the trial, which is to discover the truth.”
Some suggest that comments on a victim-witness’ credibility are preferable to exclusion as
a means of ensuring a fair trial for the accused, cf. S.Rept. 105-409 at 82 (additional views
of Sen. Biden).
111 Waller v. Georgia, 467 U.S. 39, 48 (1984)(holding the closure of an entire suppression
hearing unjustified under the standards of Press-Enterprise Co. v. Superior Court (Press-
Enterprise I), 464 U.S. 501 (1984)).
112 The Executioner’s Song: Is There a Right to Listen? 69 VIRGINIA LAW REVIEW 373,

375-78 (1983).


113 At the time of public executions, rape and robbery, as well as murder, were capital
offenses in a number of states. As a consequence, direct victims of a capital offense might
well be available to witness the execution of the offender. Since it appears that only crimes
involving the taking of a human life may today be made punishable by death, only the family
or friends of a victim would be available to attend.

statute114 or their selection is left to the discretion of prison authorities.115 A handful
permit two or three members of the victim’s immediate family to be present.116 And
in several, although the number of official witnesses may be limited, prison officials
enjoy relatively unlimited discretion which they would appear free to exercise to the
benefit of victims or their representatives.117 In cases involving hundreds or
thousands of victims, conflicts may arise should a defendant’s privacy right to a
dignified death by execution conflict with victims’ rights to attend.
Committee commentary indicates that the Amendment plays no role in what
public proceedings can be closed even though that action denies victims notice,
attendance and allocution rights. It suggests that a victim has no ground to object if
a decision is made to close a traditionally public proceeding, “The amendment works
no change in the standards for closing hearings, but rather simply recognizes that
nonpublic hearings take place,” S.Rept. 108-191 at 34; S.Rept. 106-254 at 30;
S.Rept. 105-409 at 25.
To Be Heard
Unlike the rights to notice and not to be excluded, the right to be heard is a right
to participate. Proceedings at which it may be invoked are described with greater
particularity in the Amendment. Although victim impact statements are a common
sentencing feature, victim participation elsewhere varies considerably from
jurisdiction to jurisdiction and according to the stage of the process at issue.


114 E.g., CONN.GEN.STAT.ANN. §54-100 (“. . . Besides the warden or deputy warden and
such number of correction officers as he thinks necessary, the following persons may be
present at the execution, but no others: The sheriff of the county in which the prisoner was
tried and convicted, the commissioner, a physician of a correctional institution, a clergyman
in attendance upon the prisoner and such other adults, as the prisoner may designate, not
exceeding three in number, representatives of not more than five newspapers in the county
where the crime was committed, and one reporter for each of the daily newspapers published
in the city of Hartford”).
115 E.g., ARIZ.REV.STAT.ANN. §13-705 (“The director of the state department of corrections
or the director’s designee shall be present at the execution of all death sentences and shall
invite the attorney general and at least twelve reputable citizens of the director’s selection
to be present at the execution. The director shall, at the request of the defendant, permit
clergymen, not exceeding two, whom the defendant names and any persons, relatives or
friends, not exceeding five, to be present at the execution. The director may invite peace
officers as the director deems expedient to witness the execution. No persons other than
those set forth in this section shall be present at the execution nor shall any minor be
allowed to witness the execution”).
116 Only one state, New Jersey, appears to explicitly bar victims’ relatives from the
execution, N.J.STAT.ANN. §2C:49-7[d.](“the commissioner shall not authorize or permit any
person who is related by either blood or marriage to the sentenced persons or to the victim
to be present at the execution. . .”).
117 E.g., COLO.REV.STAT.ANN. §16-11-404 (“. . . There shall also be present [at the
execution of a death sentence] a physician and such guards, attendants and other persons as
the executive director or his designee in his discretion deems desirable, not to exceed fifteen
persons. . .”).

The Amendment affords victims the right “to be heard at public release, plea,
sentencing, reprieve, and pardon proceedings” subject to a rule of reason. It does not
on its face give them the right to be heard in closed proceedings or to be heard on
other pre-trial motions, at trial, perhaps on appeal, or with respect to related forfeiture
or habeas proceedings. The history of past, more narrowly drawn provisions
indicates that the right may embrace all of these and more.
Contemporary Practices.
Public release (bail et al.).
At one time, the victim was not considered a legitimate participant in the bail
hearing. In fact, neither the safety nor any other interest of the victim was thought
to be a relevant consideration. Bail was a guarantee against suspect flight. That was
all. The amount of security required and the conditions imposed for pre-trial release
were calculated solely to insure the courtroom presence of the accused at the
appointed hour.118 Most states had, and still have, right to bail clauses for noncapital119
offenses in their state constitutions. Those jurisdictions that did not have a right
to bail clause had and have a prohibition against excessive bail,120 like that found in
the United States Constitution, that some read to include or herald a constitutional
right to bail even where none was explicitly granted.121
In many jurisdictions, the defendant-exclusive view slowly gave way to a
recognition that public and individual safety are legitimate concerns for a judicial
officer to consider when deciding whether an accused should be released on bail, or
more often, the conditions placed upon the release of the accused. In some instances,
the right to bail clause has been amended;122 in some, the state courts have interpreted


118 At both state and federal law, the presumption of bail was so strong that even after
conviction when the defendant sought bail pending appeal most shared the opinion of
Justice Jackson, sitting on a circuit court of appeals panel: “Imprisonment to protect society
from predicted but unconsummated offenses is so unprecedented in this country and so
fraught with danger of excesses and injustice that I am loathe to resort to it, even as a
discretionary judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted,” Williamson v. United States, 184 F.2d 280, 282-83 (2d Cir.

1950), quoted in National Conference on Bail and Criminal Justice, BAIL IN THE UNITED


STATES: 1964, 5 (1964).
119 E.g., ALA.CONST. art.I, §16; ALASKA CONST. art.I, §11; ARIZ.CONST. art.2, §22; ARK.
CONST. art.2, §8; CAL.CONST. art.1, §12.
120 E.g., GA.CONST. art.I, §1 ¶17; HAW. CONST. art.I, §12.
121 Huihui v. Shimoda, 64 Haw. 527, 530-39, 644 P.2d 968, 971-76 (1982).
122 E.g., ILL.CONST. Art.1, §9 (“All persons shall be bailable by sufficient sureties, except
for the following offenses where the proof is evident or the presumption great: capital
offenses; offenses for which a sentence of life imprisonment may be imposed as a
consequence of conviction; and felony offenses for which a sentence of imprisonment,
without conditional and revocable release, shall be imposed by law as a consequence of
conviction, when the court, after a hearing, determines that release of the offender would
pose a real and present threat to the physical safety of any person”).

the right to bail to include a witness protection and judicial integrity exception;123
courts in still other states have held that the right to bail clauses permit imposing
victim or public safety conditions124 and allow revocation of bail if the conditions
have been broken.125
Finally, the United States Supreme Court removed the cloud formed by the
contention that a refusal to grant pretrial bail, because of the threat to public or
individual safety posed by the accused, might violate either the United States
Constitution’s excessive bail clause or its due process clauses or both. The Court
declared that neither clause bars legislative creation of a system that conditions
pretrial release upon public safety as well as preventing flight.126
Only a few states expressly grant the victim the right to be heard at the
defendant’s bail hearing either specifically or under a general right to be heard at all
proceedings.127 A few more permit consultation with the prosecutor prior to the bail
hearing.128 Most allow victims to attend.129 And virtually all provide either that
victims should be notified of bail hearings or that victims should be notified of the
defendant’s release on bail.130


123 People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 79-80, 322 N.E.2d 837, 840-41 (1985);
State v. Mecier, 136 Vt. 336, 339, 388 A.2d 435, 438 (1978); In re Humphrey, 601 P.2d 103,

106 (Okla. Crim.App. 1979).


124 Henley v. Taylor, 324 Ark. 114, 115-16, 918 S.W.2d 713, 714 (1996).
125 State v. Dodson, 556 S.W.2d 938, 945 (Mo.App. 1977); Mello v. Superior Court, 117
R.I. 578, 583-85, 370 A.2d 1262, 1264-265 (1977).
126 United States v. Salerno, 481 U.S. 739, 755 (1988)(“The Act [being challenged on
excessive bail and due process grounds] authorizes the detention prior to trial of arrestees
charged with serious felonies who are found, after an adversary hearing, to pose a threat to
the safety of individuals or to the community which no condition of release can dispel. The
numerous procedural safeguards detailed above must attend this adversary hearing. We are
unwilling to say that this congressional determination, based as it is upon that primary
concern of every government – a concern for the safety and indeed the lives of its citizens
– on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive
Bail Clause of the Eighth Amendment”).
127 E.g., S.D.COD.LAWS ANN. §23A-28C-1(“Consistent with §23A-28C-4 [defining
victims], victims of the crime, including victims of driving under the influence vehicle
accidents, have the following rights: . . . (3) to testify at scheduled bail or bond hearings
regarding any evidence indicating whether the offender represents a danger to the victim or
the community if released”).
128 E.g., VT.STAT.ANN. tit.13 §5308 (“If practicable the victim of a listed crime shall be
given notice of the defendant’s arraignment by the law enforcement agency that issued the
citation or made the arrest. The victim of a listed crime shall have the right to be present at
the defendant’s arraignment. The prosecutor’s office shall inform the victim about the
issues concerning bail and the prosecutor shall advise the court of the victim’s position
regarding bail”).
129 E.g., OHIO REV.CODE ANN. §2930.09.
130 E.g., ALA.CODE §15-23-75 (4)(“If the terms and conditions of a post-arrest release
(continued...)

Under federal law, victims of alleged acts of interstate domestic violence or
interstate violations of a protective order have a right to be heard at federal bail
proceedings concerning any danger posed by the defendant.131 In other federal cases,
victims’ prerogatives seem to be limited to the right to confer with the prosecutor,
and notification of, and attendance at, all public court proceedings.132
Plea Bargains.
Negotiated guilty pleas account for over ninety percent of the criminal133
convictions obtained. Plea bargaining offers the government convictions without
the time, cost, or risk of a trial, and in some cases a defendant turned cooperative
witness; it offers a defendant conviction but on less serious charges, and/or with the
expectation of a less severe sentence than if he or she were convicted following a134
criminal trial, and/or the prospect of other advantages controlled, at least initially
by the prosecutor – agreements not to prosecute family members or friends, or to135
prosecute them on less serious charges than might otherwise be filed; forfeiture


130 (...continued)
include a requirement that the accused post a bond, the sheriff or municipal jailer shall, upon
request, notify the victim of the release on bond of the defendant”); NEB.REV.STAT. §81-
1848 (“Victims as defined in section 29-119 shall have the following rights: . . . (b) to
receive from the county attorney advance reasonable notice of any scheduled court
proceedings and notice of any changes in that schedule”).
131 18 U.S.C. 2236.
132 42 U.S.C. 10606(b).
133 Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas,
87 CORNELL LAW REVIEW 697, 698 n.2 (2002)(for more than twenty-five years, more than
ninety percent of convictions in the United States have been the result of guilty pleas, citing
Sourcebook of Criminal Justice Statistics 1999, 432-33 (2000) and Newman, CONVICTION:
THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL 3 (1966)); see also,
Administrative Office of the United States Courts, Judicial Business of the United States
Courts, 211 (2002)(only 3,329 of the 67,731 defendants convicted of federal crimes in the
fiscal year ending in September 30, 2001, were found guilty by a judge or jury following a
criminal trial; the rest pled guilty or nolo contendere).
134 In addition to extraordinarily broad discretion to initiate or abandon a prosecution,
Wayte v. United States, 470 U.S. 598 (1985); Town of Newton v. Rumery, 480 U.S. 386
(1987), prosecutors play an important role in sentencing, e.g., 18 U.S.C. 3553(b)(federal
court may depart from the federal sentencing guidelines upon the motion of the prosecutor);
18 U.S.C. 3553(e)(federal court may sentence a defendant below an otherwise mandatory
minimum term of imprisonment upon the motion of the prosecutor).
135 E.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959 F.2d

1011 (D.C.Cir. 1992).



concessions;136 testimonial immunity;137 entry into a witness protection program;138
and informant’s rewards,139 to mention a few.
For the victim, a plea bargain may come as an unpleasant surprise, one that may
jeopardize the victim’s prospects for restitution, one that may result in a sentence the
victim finds insufficient,140 and/or one that changes the legal playing field so that the
victim has become the principal target of prosecution.141
Some state victims’ rights provisions are limited to notification of the court’s
acceptance of a plea bargain.142 More often, however, the states permit the victim to
address the court prior to the acceptance of a negotiated guilty plea143 or to confer
with the prosecutor concerning a plea bargain.144
Sentencing.
At common law, victims had no right to address the court before sentence was
imposed upon a convicted defendant. The victim’s right to bring the impact of the
crime upon him to the attention of the court was one of the early goals of the victims’
rights efforts. The Supreme Court has struggled with the propriety of victim impact
statements in the context of capital punishment cases, ultimately concluding that they


136 Cf., Libretti v. United States, 516 U.S. 29 (1995)(government agreed to limit charges
and make a favorable sentencing recommendation in exchange for the defendant’s guilty
plea and his agreement to transfer all property that would have been subject to criminal
forfeiture upon his conviction).
137 E.g., 18 U.S.C. 6001-6005 (witness immunity).
138 E.g., 18 U.S.C. 3521 (witness relocation and protection).
139 E.g., 18 U.S.C. 3059 (rewards); 18 U.S.C. 3059A (rewards for crimes against financial
institutions); 18 U.S.C. 3071-3077 (rewards for information relating to terrorism).
140 “The victim has two interests in the plea bargain decision. One interest is financial: the
victim is interested in restitution being imposed as part of the sentence. Thus in a charge
bargain, the victim wants to insure that the defendant pleads to a charge sufficiently serious
to allow restitution; and in a sentence bargain, the victim wants to advocate an award of
restitution. The victim’s second interest is retribution, or revenge: the victim feels he or she
has been violated and that the criminal’s punishment should be severe. Therefore, in a
charge bargain, the victim would want the defendant to plead guilty to a serious charge, and
in a sentence bargain, the victim would want a significant sentence imposed,” Walling,
Victim Participation in Plea Bargains, 65 WASHINGTON UNIVERSITY LAW QUARTERLY 301,

307-8 (1987).


141 E.g., The Proper Standard for Self-Defense in New York: Should People v. Goetz Be
Viewed as Judicial Legislation or Judicial Restraint, 39 SYRACUSE LAW REVIEW 874
(1988)(discussing prosecution of subway rider who shot the four young men he claimed
attempted to rob him; Goetz was subsequently prosecuted and convicted for unlawful
possession of a handgun).
142 E.g., IOWA CODE ANN. §915.13; WYO.STAT. §1-40-204.
143 E.g., R.I.GEN.LAWS §12-28-4.1(a); MO.ANN.STAT. §595.209.
144 E.g., DEL.CODE ANN. tit.11 §9405; KY.REV.STAT.ANN. §421.500.

pose no necessary infringement upon the rights of the accused.145 It is said that
permitting victim impact statements serves several beneficial purposes: (1) to protect
the victim’s interest in having the court order the defendant to make restitution,146 (2)
to increase the possibility that the sentence imposed will reflect the damage done and
therefore the seriousness of the crime,147 (3) to balance the pleas for the defendant
that have traditionally been heard at that point,148 and (4) to restore some level of
dignity and respect for the victim.149
Critics counter that the use of victim impact statements introduces irrelevancies
into the sentencing process,150 distorts the rationale for sentencing thereby leading to
disparate results,151 leads to putting the victim on trial,152 and in cases where the jury
determines or recommends the sentence to be imposed, may be unfairly
inflammatory. 153
Nevertheless, one of the most prevalent of victims’ rights among the states is
the right to have victim impact information presented to sentencing authorities.
There is, however, tremendous diversity of method among the states and federal
government. Many call for inclusion in a presentencing report prepared for the court
in one way or another,154 often supplemented by a right to make some kind of
subsequent presentation as federal law permits.155 Some are specific as to the


145 In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that the Eighth
Amendment did not permit the presentation of victim impact evidence to a sentencing jury
in a death penalty case; in Payne v. Tennessee, 501 U.S. 808 (1991), it repudiated Booth and
declared that victim impact statements were not inherently suspect.
146 Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues
and Problems, 11 PEPPERDINE LAW REVIEW 117, 172-3 (1984).
147 Id.
148 Booth v. Maryland, 482 U.S. at 520 (Scalia, J., dissenting); Payne v. Tennessee: The
Supreme Court Places its Stamp of Approval on the Use of “Victim Impact Evidence”
During Capital Sentencing Proceedings, 1992 BRIGHAM YOUNG UNIVERSITY LAW REVIEW

841, 852.


149 Sentencing Criminals: The Constitutionality of Victim Impact Statements, 60 MISSOURI
LAW REVIEW 731, 735 (1995).
150 Booth v. Maryland, 482 U.S. at 502-3 (1987).
151 Booth v. Maryland, 482 U.S. at 505-6; Hall, Victims’ Voices in Criminal Court: The
Need for Restraint, 28 AMERICAN CRIMINAL LAW REVIEW 233, 259-60 (1991).
152 Booth v. Maryland, 482 U.S. at 507; Berger, Payne and Suffering – A Personal
Reflection and a Victim-Centered Critique, 20 FLORIDA STATE UNIVERSITY LAW REVIEW

21, 50 (1992).


153 Cf., Payne v. Tennessee, 501 U.S. at 827, and 501 U.S. at 831.
154 E.g., F.R.Crim.P. 32(b).
155 E.g., TENN.CODE ANN. §40-35-209(b)(“At the sentencing hearing, the court shall afford
the parties the opportunity to be heard . . . and may afford the victim of the offense or the
family of the victim the opportunity to testify relevant to the sentencing of the defendant.
(continued...)

information that may be included;156 some permit the victim to address the court
directly; others do not.157
Reprieves and Pardons.
The Constitution vests the President with “the power to grant reprieves and158
pardons for offences against the United States,” U.S.Const. Art.II, §2, cl.1. As a
matter of administrative practice he is assisted by the Pardon Attorney in the159
Department of Justice. Ordinarily, there is no hearing, public or otherwise, held
to determine whether the exercise of the federal pardoning power is appropriate.
Such hearings, however, are more common in the states where executive clemency
is often more narrowly defined. In a few, the power is vested in a pardon board.160
More often, the Governor receives clemency recommendations from a pardon


155 (...continued)
. .”).
156 E.g., FLA.STAT.ANN. §921.143.
157 E.g., PA.STAT.ANN. tit. 18 §11.201 (“Victims of crime have the following rights: . . . (5)
To have opportunity to offer prior comment on the sentencing or a defendant to include the
submission of a written victim impact statement detailing the physical, psychological and
economic effects of the crime on the victim and the victim’s family, which statement shall
be considered by the judge when determining the defendant’s sentence”).
158 Blackstone in his chapter of reprieves and pardons observed that , “A reprieve . . . is the
withdrawing of a sentence for an interval of time; whereby the execution is suspended. This
may be, first, [at the court’s discretion]; either before or after judgment: as, where the judge
is not satisfied with the verdict, or the evidence is suspicious, or the indictment is
insufficient . . . . Reprieves may also be [from legal necessity]: as, where a woman is
capitally convicted, and pleads her pregnancy; though this is not cause to stay the judgment,
yet it is to respite the execution till she be delivered. . . . Another cause of regular reprieve
is, if the offender become non compos, between the judgment and the award of execution:
for . . . though a man be compos when he commits a capital crime, yet if he becomes non
compos after, he shall not be indicted; if after indictment, he shall not be convicted; if after
conviction, he shall not receive judgment; if after judgment, he shall not be ordered for
execution . . . . If neither pregnancy, insanity, non-identity, nor other plea will avail to avoid
the judgment, and stay the execution consequent thereupon, the last and surest resort is in
the king’s most gracious pardon; the granting of which is the most amiable prerogative of
the crown,” IV BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 387-89
(1769)(transliteration provided).
159 28 C.F.R.§§0.35, 0.36.
160 E.g., UTAH CONST. Art. VII, §12(2)(“The Board of Pardons and Parole, by majority vote
and upon other conditions as provided by statute, may grant parole, remit fines, forfeitures
and restitution orders, commute punishments, and grant pardons after convictions, in all
cases except treason and impeachments, subject to regulations as provided by statute”).

board.161 Frequently, crime victims are entitled to be heard by the pardon board,162
usually although not always as a matter of right.163
Past Proposals.
In one form or another, past proposals gave victims the right to be heard before
the accused was released on bail, before the court accepted a plea agreement, and
before the court sentenced a convicted offender, and there were varying efforts to
permit victim statements in parole hearings.164 In the 106th Congress, pardon
allocution appeared along with the other rights to be heard when the Senate Judiciary
Committee reported out the resolution in the proposals. The Justice Department
objected on the grounds that it constituted “an unprecedented incursion on the
President’s power to grant executive clemency requests” and in some states upon


161 E.g., ALA.CONST. Art.V, §124 (“. . . The attorney-general, secretary of state, and state
auditor shall constitute a board of pardons . . . before whom shall be laid all
recommendations or petitions, for pardon, commutation, or parole, in cases of felony; and
the board shall hear them in open session, and give their opinion thereon in writing to the
governor, after which or on the failure of the board to advise for more than sixty days, the
governor may grant or refuse the commutation, parole , or pardon, as to him seems best for
the public interest. . .”).
162 E.g., ALA.CODE §15-23-79(b) (“The victim shall have the right to be notified by the
Board of Pardons and Paroles and allowed to be present and heard by at hearing when parole
or pardon is considered. . .”); ALASKA STAT. §33.20.080(b) (“If requested by the victim of
a crime against a person, a crime involving domestic violence, or arson in the first degree,
the board shall send notice of an application for executive clemency submitted by the state
prisoner who was convicted of that crime. The victim may comment in writing to the board
on the application for executive clemency”).
163 N.D.CENT.CODE §12.1-34-02 [17](“Victims may submit a written statement for
consideration by the parole board, the governor, or the pardon advisory board, if one has
been appointed, prior to the parole board, the governor, or the pardon advisory board taking
any action on a defendant’s request for parole or pardon. Victims of violent crimes may at
the discretion of the parole board, the governor, or the pardon advisory board personally
appear and address the parole board, the governor or the pardon advisory board . . .”);
ORE.REV.STAT. §144.650 (“Upon receiving a copy of the application for pardon,
commutation or remission, any persons or agency named in subsection (1) of this section
shall provide to the Governor as soon a practicable such information and records relating
to the case as the Governor may request and shall provide further information and records
relating to the case that the person or agency considers relevant to the issue of pardon,
commutation or remission, including but not limited to: (a) statements by the victim of the
crime. . .”).
164 E.g., S.J.Res. 65 (104th Cong.)(“Victims . . . shall have the right. . . to be heard if
present and to submit a statement at a public pre-trial and trial proceeding to determine a
release from custody, an acceptance of a negotiated plea, or a sentence, to these rights at a
parole proceeding to the extent they are afford to the convicted offender. . . .”); H.J.Res. 71
(105th Cong.)(“. . . a victim . . . shall have the right. . . to be heard, if present, and to submit
a written statement at all public proceedings, related to the crime, to determine a release
from custody, an acceptance of a negotiated plea, or a sentence; to the rights described in
the preceding portion of this section at a parole proceeding that is not public, to the extent
those rights are afford to the convicted offender. . . .”).

similar powers vested in the governor.165 With the pardon component, the allocution
rights in the 106th Congress proposals declared:
A victim . . . shall have the rights . . .
to be heard, if present, and to submit a statement at all such proceedings to
determine a conditional release from custody, an acceptance of a negotiated
plea, or a sentence; . . . to the foregoing rights at a parole proceeding that is
not public, to the extent those rights are afford to the convicted offender.
H.J.Res. 64 (106th Cong.); S.J.Res. 3 (106th Cong.).
to . . . an opportunity to submit a statement concerning any proposed pardon
or commutation of a sentence. S.J.Res. 3 (106th Cong.) (as reported).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have the right to . . .
reasonably to be heard at public release, plea, sentencing, reprieve, and pardon
proceedings
SECTION 4. . . .Nothing in this article shall affect the President’s
authority to grant reprieves or pardons
Section 2 has been substantially rewritten. The differences are apparent. The
reasonableness element which attached to the pardon rights has been added to the
others. References to parole proceedings and convict-equivalent rights have
disappeared, and a reference to reprieves has surfaced in their place. The right to be
heard and make a statement on conditional release, plea and sentence has been
replaced with the simple right to be heard on release, plea and sentence. The right
to make a statement concerning any proposed pardon or commutation of a sentence
has become the right to be heard at public reprieve and pardon proceedings.
Past offerings spoke of a reasonableness element in the right to be heard only
with respect to matters of pardon and commutation (“to reasonable notice of and an
opportunity to submit a statement concerning”). The explanation of reasonableness
in that context was brief:
The President, Governors, and clemency boards are also free to determine
the appropriate way in [which] a victim’s statement will be considered as part of
the process. The fact that a victim objects to (or supports) a clemency
application is not dispositive. Instead, the information provided by the victim
will be considered along with other relevant information to aid the decisionmaker
in making the difficult clemency decision. S.Rept. 106-254 at 35.
Written large across every stage of the criminal justice process, the
reasonableness element seems to make the victim’s views relevant but not


165 House Hearing III (prepared statement of Ass’t Att’y Gen. Eleanor D. Acheson); the
statement later declares that “[a]lthough other provisions of the resolution would give
victims’ rights in proceedings in which defendants have rights, the pardon provision would
grant victims’ rights in a setting in which no one – including defendants – has ever
possessed rights. The Framers assigned this power to the President, and we oppose any
amendment that would encroach upon it,” id.

dispositive. The same message may be found in the distillation of the right to be
heard and submit a statement down to the right to be heard.166 This reasonableness
element may also give the courts and administrators greater discretion over the
circumstances under which the right is accommodated than would be possible in the
form of a restriction permitted by the last sentence in section 2 of the Amendment
(“These rights shall not be restricted except when and to the degree dictated by a
substantial interest in public safety or the administration of criminal justice, or by
compelling necessity”).
The reasonableness element may play a role in another matter. The right to be
notified is limited to public proceedings “involving the crime.” The right not to be
excluded is likewise limited to “such public proceedings [involving the crime].” The
right to be heard suffers no such limitation, at least not facially. Once a victim-
offender nexus exists, a court might conclude that it was reasonable for a victim to
be heard with regard to the release, plea bargain, sentence, or pardon issues involving
the offender, or even a potential witness, on charges otherwise totally unrelated to the
victim.
One hearing witness, however, foresaw the prospect of an opposite, more
narrow, interpretation as a result of the changes. In his view, elimination of the
reference to the right to make a statement in favor of a simple right to be heard runs
the risk that the courts will understand this as a right to make an oral statement before
the tribunal.167 Even under a standard of reasonableness, this might lead to
substantial administrative inconvenience.168


166 In earlier versions, the right to “be heard” and “to submit a statement” in each of several
kinds of proceedings could have been construed as the right to communicate (right to submit
a statement) and the right to have the communication carry determinative weight (the right
to be heard).
167 Senate Hearing V; House Hearing V at 79 (statement of James Orenstein)(“I would
expect courts to interpret the deletion of ‘submit a statement’ to signal a legislative intent
to allow victims actually to be ‘heard’ by making an oral statement. Nor do I think the use
of the term ‘reasonably to be heard’ would alter that interpretation; instead, I believe courts
would likely reconcile the two changes by interpreting ‘reasonably’ to mean that a victim’s
oral statement could be subjected to reasonable time and subject matter restrictions” ); see
also, Senate Hearing IV at 122; House Hearing IV at 50.
168 Id. If . . . correct then prison officials might face an extremely burdensome choice of
either transporting incarcerated victims to court for the purpose of being heard or providing
for live transmissions to the courtroom.
“A related problem would extend beyond prison walls. Because the difference
between the previous and current versions of the Amendment suggest that a victim must be
allowed specifically to be ‘heard’ rather than simply to ‘submit a statement,’ a victim might
persuade a court that the ‘reasonable opportunity to be heard’ guaranteed by the current
version of the Amendment carries with it an implicit guarantee that the government will take
affirmative steps, if necessary, to accord such a reasonable opportunity. This undermines
the intent of the Amendment’s careful use of negative phrasing with respect to the right not
be excluded from public proceedings – a formulation designed to avoid a ‘government
obligation to provide funding, to schedule the timing of a particular proceeding according
to a victim’s wishes, or otherwise assert affirmative efforts to make it possible for a victim
(continued...)

At its most literal construction, the Amendment is likely to convey greater rights
than victims enjoy in many, if not most, jurisdictions.
Public Release Proceedings.
Proposals once conveyed a right to be heard at public proceedings relating to a
conditional release from custody and, to the extent the inmate enjoyed a right to be
heard, at closed parole hearings. The Amendment simply conveys a right to be heard
at public release proceedings. The clear implication is that under the Amendment
victims have no right to be heard at closed parole hearings, regardless of whether the
inmate has a right to be heard.169
On the other hand, the new formulation may open a wider range of proceedings
to victim allocution. There was always some ambiguity over whether conditional
release proceedings meant proceedings where release might be granted if certain
conditions were met before release or proceedings where release bound the accused
or convicted offender to honor certain conditions after release, or both. In any event,
in bygone proposals the Senate Judiciary Committee read “conditional” in the phrase
“conditional release from custody,” as a word of limitation:
The amendment extends the right to be heard to proceedings determining
a ‘conditional release’ from custody. This phrase encompasses, for example,
hearings to determine any pretrial or posttrial release (including comparable
releases during or after an appeal) on bail, personal recognizance, to the custody
of a third person, or under any other conditions, including pretrial diversion
programs. Other examples of conditional release include work release and home
detention. Its also includes parole hearings or their functional equivalent, both
because parole hearings have some discretion in releasing offenders and because
releases from prison are typically subject to various conditions such as continued
good behavior. It would also include a release from a secure mental facility for
a criminal defendant or one acquitted on the grounds of insanity. A victim would
not have a right to speak, by virtue of this amendment, at a hearing to determine
“unconditional” release. For example, a victim could not claim a right to be
heard at a hearing to determine the jurisdiction of the court or compliance with
the governing statute of limitations, even though a finding in favor of the
defendant on these points might indirectly and ultimately lead to the ‘release’ of
the defendant. Similarly, there is no right to be heard when a prisoner is released
after serving the statutory maximum penalty, or the full term of his sentence.
There would be proceeding to “determine”a release in such situations and the


168 (...continued)
to attend proceedings.’ Further undermining that intent is the fact that unlike its
predecessor, the current version of the Amendment does not include the phrase ‘if present’
in the specification of the right to be heard”).
169 Cf., Senate Hearing V; House Hearing V at 35 (statement of Steven T. Twist)(“The
right would also extend to post-conviction public release proceedings, for example parole
or conditional release hearings. Jurisdictions that have abolished parole in favor of truth in
sentencing regimes may still have conditional release. Only if the jurisdiction also has a
‘public proceeding’ prior to such a conditional release would the right attach”); see also,
Senate Hearing IV at 186-87; House Hearing IV at 22 (statement of Steven T. Twist).

release would also be without condition if the court’s authority over the prisoner
had expired. S.Rept.106-254 at 32; S.Rept. 105-409 at 27.
Thus by removing the words “conditional” and “from custody,” the Amendment
perhaps should be understood to allow victims the right to be heard on most pre-trial
motions as well as most post-trial appeals and petitions, or at least any that might
result in a release of the accused or the convicted offender from jeopardy. For
example, it might support an argument that the Amendment gives victims the right
be heard at trial by the trier of fact (judge or jury) on whether the defendant should
or should not be convicted on any of the charges at issue, i.e., at least limited trial
participation.
The Amendment affords the right only to a reasonable extent (“A victim . . .
shall have the right to . . . reasonably to be heard at public release, plea, sentencing,
reprieve, and pardon proceedings . . .”). In other contexts, the Amendment’s
reasonableness demands are standards of circumstance. What is reasonable is likely
to depend upon the circumstances of individual cases, a limitation of unknown
implications.
The Amendment even if conservatively read represents an expansion of victims’
rights in most jurisdictions. Its promise of the right to be heard in release
proceedings in particular is more generous than most, although victims’ rights to
have their interests considered, to be notified, to attend, and in some instances to
make presentations at bail proceedings appear more frequently in state statutes and
court rules than was once the case.
Plea Bargains.
The Amendment assures crime victims of the right to reasonably be heard at
proceedings where a plea bargain is accepted. The right only attaches to the
acceptance of plea bargains in open court (i.e., at public proceedings).170 The right
clearly does not vest a victim with the right to participate in plea negotiations
between the defendant and the prosecutor, which are neither public nor proceedings.
By the same token, the right to be heard is not the right to decide; victims must be
heard, but their views are not necessarily controlling.171 It remains to be seen whether


170 The Senate committee reports, on the question of when public hearings might be closed
thus removing the trigger for the rights under earlier proposals, opined that, “while plea
proceedings are generally open to the public, a court might decide to close a proceeding in
which an organized crime underling would plead guilty and agree to testify against his
bosses,” S.Rept. 108-191 at 34; S.Rept. 106-254 at 30; S.Rept. 105-409 at 25.
171 S.Rept. 108-191 at 36 (“Victims have no right to ‘veto’ any release decision by a court,
rather simply to provide relevant information that the court can consider in making its
determination about release”); see also, Senate Hearing IV; House Hearing IV at 22-3
(statement of Steven J. Twist), quoting S.Rept. 106-254 at 33(“the victim is given no right
of veto over any plea. No doubt, some victims may wish to see nothing less than the
maximum possible penalty (or minimum possible penalty) for a defendant. Under the
amendment, the court will receive this information, along with that provided by prosecutors
and defendants, and give it the weight it believes is appropriate deciding whether to accept
(continued...)

the existence of the right in open court will lead to more proceedings being closed
to avoid the complications of recognizing the right.
Sentencing.
The Amendment guarantees crime victims the right to reasonably be heard at
public sentencing proceedings. The language of the Amendment does not specify
what form may or must be used nor does it speak to permissible restrictions on
length, content or other limitations that may come within the rule of reason. Neither
does it expressly identify any limitation activated by a conflict with rights of the
defendant. Drafters may envision a legislative definition of these limitations, but the
Amendment may confine such efforts to those marked by “a substantial interest in
public safety or the administration of criminal justice, or by compelling necessity.”
The right to reasonably be heard may come to be understood to mean the right to be
heard under conditions and circumstances where the right is weighed against judicial
and administrative convenience or conflicting defendant interests.
The Senate Judiciary Committee, however, has continuous described this and
similar language as somewhat more “victim-friendly.” It has noted the language’s
dual function of giving sentencing authorities more complete information and of
providing victims with “a powerful catharsis,” S.Rept. 108-191 at 37; S.Rept. 106-
254 at 33; S.Rept. 105-409 at 28. In light of this second purpose, “a victim will have
the right to be heard even when the judge has no discretion in imposing a mandatory
prison sentence,” Id. In previous reports, the Senate Judiciary Committee added
immediately thereafter that Congress and the states would nevertheless have the
prerogative to limit victim statements to relevant testimony, to define relevancy as
they chose, and to otherwise limit the length and content of victims’ statements.172th
The Committee’s description of the clause in the 108 Congress is much more
restrained, more reminiscent of existing law:


171 (...continued)
a plea”).
172 “Congress and the states remain free to set certain limits on what is relevant victim
impact testimony. For example, a jurisdiction might determine that a victim’s views on the
desirability or undesirability of a capital sentence is not relevant in a capital proceeding. Cf.,
Robison v. Maynard, 943 F.2d 1216 (10th Cir. 1991) (concluding that victim opinion on
death penalty not admissible). The Committee does not intend to alter or comment on laws
existing in some States allowing for victim opinion as to the proper sentence. . . . Nor does
[the victims’ right] give victims any right to ‘filibuster’ any hearing. As with defendant’s
existing rights to be heard, a court may set reasonable limits on the length and content of
statements,” S.Rept.106-254 at 33-4; S.Rept. 105-409 at 28-9.
Robison held that the opinion of a murder victim’s family that the defendant should
not be sentenced to death was not relevant mitigating evidence because it did “not relate to
the harm caused by the defendant,” 943 F.2d at 1218.
At the time the reports were written, the Committee knew that federal prosecutors in
the Oklahoma City bombing case had advised the families of victims that they could not be
heard at sentencing if they were opposed to imposition of the death penalty as a matter of
principle, Senate Hearing at 71-2 (statement of Marsha A. Kight).

State and Federal statutes already frequently provide allocution rights to victims.
The Federal amendment wold help to insure that these rights are fully protected.
The result is to enshrine and perhaps extend the Supreme Court’s decision in
Payne v. Tennessee, 502 U.S. 808 (1991), recognizing the propriety of victim
allocution in capital proceedings. Victim impact statements concerning the
character of the victim and the impact of the crime remain constitutional. The
Committee does not intend to alter or comment on laws existing in some States
allowing for victim opinion as to the proper sentence . . . . The victim’s right is
to be “heard.” The right to make an oral statement is conditioned on the victim’s
presence in the courtroom. As discussed above, it does not confer on victims a
right to have the government transport them to the relevant proceeding. Nor does
it give victims any right to “filibuster” any hearing,. As with defendants’
existing rights to be heard, a court may set reasonable limits on the length of
statements, but should not require the victim to submit a statement for approval
before it is offered. No such requirement is put on the defendant and none
should b imposed on the victim. The Due Process clause requires that the
victim’s statement not be “unduly prejudicial.” At the same time, victims should
always be given the power to determine the form of the statement. . . .
Even if not present, the victim is entitled to submit a statement at the specified
hearing for the consideration of the court. The Committee does not intend that
the right to be heard be limited to “written” statements, because the victim may
wish to communicate in other appropriate ways. S.Rept. 108-191 at 38 (most
internal citations omitted).
Reprieves and Pardons.
Section 4 seems to limit the Amendment’s impact on federal pardons (“Nothing
in this article shall affect the President’s authority to grant reprieves or pardons”).
The Amendment is likely to have little impact on federal practice, in any event since
the federal pardon process does not involve “public proceedings,” and therefore
victims will continue to have no right to be heard with respect to a requested or
contemplated federal pardon. On the other hand, its impact on the states would vary
according to the extent to which public proceedings are part of the pardon process.
Victim Safety
The Amendment identifies three victims’ interests that adjudicative decision
makers must take into consideration: victim safety, avoiding unreasonable delay, and
just restitution pursued in a timely manner. The legislative history to date may be
read to indicate that the drafters understood the right to attach to decisions made by
judicial and administrative authorities in any adversarial setting. Victims’ interests
must be considered, but are not necessarily controlling.
In the case of victim safety, the decision whether to release an accused on bail
and the conditions to be imposed upon release represent perhaps the obvious example
of decisions where victims’ safety must be considered. The right does not attach if
the decision to release the offender is simply a matter of administrative discretion
exercised without the necessity of an adversarial proceeding. Thus, the right only
attaches – with respect to release of an offender following full service of his or her
sentence, or on furlough, or work release, or assignment to a half-way house, or
following civil commitment – if the jurisdiction provides for release pursuant to an
adversarial proceeding. The right does not attach, for instance, to release pursuant



to a presidential pardon that features no such proceedings. The range of proceedings
where the right applies may be broader than past proposals envisioned since they
were limited to decisions concerning “conditional release.”
Contemporary Practices.
Victim safety is generally recognized as a valid, and in some jurisdictions a
required, pre-trial release consideration.173 It is mentioned far less frequently as a
consideration in post-conviction (probation, work release, parole, pardon) or non-
criminal release (release from civil commitment or juvenile custody) determinations,
although public safety may be a factor in many of these instances.174
Past Proposals.
Three of the proposals in the 104th Congress assured victims of the right to
“receive reasonable protection from physical harm or intimidation relating to the
proceedings.”175 Each of the others prior to the 107th Congress assured victims that
their safety would be considered before conditionally releasing an accused from
custody: 176
A victim . . . shall have the right[] . . . to consideration for the safety of the
victim in determining any conditional release from custody relating to the
crime. H.J.Res. 64 (106th Cong.); S.J.Res. 3 (106th Cong.).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have . . . the right to
adjudicative decisions that duly consider the victim’s safety.
The language here is new but many of the concepts are not. The change of the
context within which victim safety must be considered – from “determinations” of
“conditional release” to “adjudicative decisions” – seems to reflect both expansion


173 E.g., TEX.CRIM.PRO.CODE art.56.02(a)(2)(“A victim . . . is entitled to . . . the right to
have the magistrate taken the safety of the victim or his family into consideration as an
element in fixing the amount of bail for the accused”); ORE.CONST. Art.I, §43(1)(b)(“. . . the
following rights are hereby granted to victims . . .The right to have decisions by the court
regarding the pretrial release of a criminal defendant based upon the principle of reasonable
protection of the victim and the public, as well as the likelihood that the criminal defendant
will appear for trial. . .”) cf., 42 U.S.C. 10606(b)(2)(“A crime victim has . . . the right to be
reasonably protected from the accused offender”).
174 E.g., DEL.CODE ANN. tit.11 §4347(c)(“A parole may be granted when in the opinion of
the Board there is reasonable probability that the person can be released without detriment
to the community or to person. . .”).
175 H.J.Res. 173 (104th Cong.); H.J.Res. 174 (104th Cong.); S.J.Res. 52. (104th Cong.).
176 H.J.Res. 64 (106th Cong.); S.J.Res. 3 (106th Cong.)(same); S.J.Res. 65 (104th
Cong.)(right “to have the safety of the victim considered in determining a release from
custody”); S.J.Res. 6 (105th Cong.)(same); S.J.Res. 44 (105th Cong.)(same); H.J.Res. 71
(105th Cong.)(same); H.J.Res. 129 (105th Cong.)(same).

and contraction. The term “adjudicative decisions” conveys the sense of judicial
determinations, of decisions made by a tribunal following an adversarial process.
Definitely more confined than “determinations.” On the other hand, removal of the
qualifying “conditional release” phrase, seems to extend the right far beyond the pre-
trial release context which that phrase might at first imply.
The testimony of witnesses at congressional hearings may confirm that the term
“adjudicative decisions” is understood to mean “both court decisions and decisions
reached by adjudicative bodies, such as parole boards. Any decision reached after
a proceeding in which different sides of an issue would be presented would be an
adjudicative decision.”177 Thus, determinations like federal pardon decisions that fell
within the reach of the proposals in earlier Congresses appear beyond the reach of the
Amendment, as long as they involve administrative and executive determinations
rather than adjudications.
The Senate Judiciary Committee meant the right in earlier proposals to apply
broadly not only to pre-trial release determinations in criminal cases but to
determinations relating to civil commitment and post-conviction determinations as
well.178 Thus, the elimination of the “conditional release” qualifications of past
proposals may be less significant than might appear simply on the face of the
proposals and the Amendment. Nevertheless, it does represent the elimination of a
restriction. Victim safety, for example, may come to play a role in the permissible
constraints placed upon the accused during the course of a trial.
What of the relative weight to be given victim safety? The phrase, “duly
considered” or “due consideration” is probably less generous than “considered” or
“consideration.” BLACKS defines “due consideration” as the “degree of attention
properly paid to something, as the circumstances merit.”179 The courts have
construed the phrase “duly consider” in the context of various local federal court
rules of criminal procedure. There the court’s obligation to “duly consider” a request
for a redacted docket in proceedings ancillary to a grand jury investigation demands


177 Senate Hearing IV at 193; House Hearing IV at 25 (statement of Steven J. Twist);
Senate Hearing IV at 124; House Hearing IV at 51(statement of James Orenstein)(“any
adjudicative decision that a court (or presumably, a parole or pardon board) makes . . .”).
178 S.Rept. 108-191 at 39 (“This right requires judges, magistrates, parole boards, and other
such officials to consider the safety of the victim in determining any conditional release.
As with the right to be heard on conditional releases, this right will extend to hearings to
determine any pretrial or post-trial release on bail, personal recognizance, to the custody of
a third person, on work release, to home detention, or under any other conditions as well as
parole hearings or their functional equivalent. . . Custody here includes mental health
facilities. This is especially important as sex offenders are frequently placed in treatment
facilities, following or in lieu of prison”); see also, S.Rept. 106-254 at 37-8.
179 BLACKS LAW DICTIONARY, 516 (7th ed.1999) (emphasis added); see also, Weisgram
v. Marley Co., 528 U.S. 440, 443-44 (2000)(noting that the circumstances of an individual
case determine whether the due consideration to which a trial court’s views are entitled
permits a federal appellate court to enter a judgment in favor of a party against whom a
verdict has been returned and sustained below).

consideration and an explanation if the request is denied.180 Even before the addition
of the “duly” limitation, victim safety was not thought to constitute either a
dispositive or necessarily a weighty factor, it was simply a factor.181 And so it
presumably remains.
Speedy Trial
The second of the victims’ interests that must be considered by at least some
decision makers is consideration of the victim’s interest in avoiding unreasonable
delay. Some have expressed the concern that this vests victims with the right to be
heard on scheduling decisions and consequently the right to notification and
appearance at proceedings where such matters are raised. The concern may be
unfounded in light of the Amendment’s specific references to points of attachment
for a victim’s right to notice, not to be excluded, and to be heard. The legislative
history suggests that perhaps the standards used to judge the defendant’s
constitutional right to a speedy trial govern here as well.
Contemporary Practices.
The United States Constitution guarantees those accused of a federal crime a
speedy trial;182 the due process clause of the Fourteenth Amendment makes the right
binding upon the states,183 whose constitutions often have a companion provision.184
The constitutional right is reenforced by statute and rule in the form of speedy trial
laws in both the state and federal realms.185
“Ironically, however, the defendant is often the only person involved in a
criminal proceeding without an interest in a prompt trial. Delay often works to the
defendant’s advantage. Witnesses may become unavailable, their memories may
fade, evidence may be lost, changes in the law may be beneficial, or the case may
simply receive a lower priority with the passage of time.”186


180 In re Sealed Case (Dow Jones), 199 F.3d 522, 527 (D.C.Cir. 2000).
181 S.Rept. 108-191 at 39 (“At such [release] hearings, the decisionmaker must give
consideration to the safety of the victim in determining whether to release a defendant and,
if so, whether to impose various conditions on that release to help protect the victim’s
safety. . . . This right does not require the decisionmaker to agree with any conditions that
the victim might propose (or, for that matter to agree with a victim that defendant should be
released unconditionally) . . . . This right simply guarantees victim input into a process that
has been constitutionally validated”); see also, S.Rept. 106-254 at 38.
182 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial. . . .” U.S.Const. Amend. VI.
183 Klopfer v. North Carolina, 386 U.S. 213 (1967).
184 E.g., R.I.CONST. art.1, §10; S.C.CONST. art.I, §14.
185 E.g., State: CONN.SUPER.CT.R. §§956B to 956F; DEL.SUPER.CT.CRIM.R. 48 (b); FLA.R.
CRIM.P. 3.191; GA.CODE ANN. §§17-7-170 to 17-7-171. Federal: 18 U.S.C. 3161-3174.
186 Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’
(continued...)

Until recently, victims had no comparable rights, although their advocates
contended they had a very real interest in prompt disposition. Some victims sought
to put a traumatic episode behind them; some wanted to see justice done quickly;
some hoped simply to end the trail of inconveniences and hardship that all too often
fell to their lot as witnesses.187
A few states have since enacted statutory or constitutional provisions
establishing a victim’s right to “prompt” or “timely” disposition of the case in one
form or another.188 The federal statutory victims’ bill of rights, 42 U.S.C. 10606,
does not include a speedy trial provision, but Congress has encouraged the states to
include a right to a reasonably expeditious trial among the rights they afford
victims.189
Past Proposals.
In the beginning, proposals sometimes spoke of a victims’ speedy trial right,190
and in other instances preferred to describe it as the right to have “proceedings
resolved in a prompt and timely manner.”191 Proposals in the 105th Congress
continued the split, some focused on the beginning and completion of trial; others on
a finality of the proceedings.192 In the following Congress, the proposals all called
for “consideration of the victim’s interest in a trial free from unreasonable delay.”193
In this form, the right was one relevant only in a trial and pre-trial context. The


186 (...continued)
Rights Amendment, 1994 UTAH LAW REVIEW 1373, 140.
187 E.g., Kelly, Victims’ Perceptions of Criminal Justice, 11 PEPPERDINE LAW REVIEW 15,

19-20 (1984); contra, Henderson, The Wrongs of Victim’s Rights, 37 STANFORD LAW


REVIEW 937, 974-77 (1985).
188 E.g. LA.REV.STAT.ANN. §46:1844 [J.] (“The victim shall have the right to a speedy
disposition and prompt and final conclusion of the case after conviction and sentencing”);
N.H.REV.STAT.ANN. §21-M:8-k.
189 42 U.S.C. 10606 nt. (“It is the sense of Congress that the States should make every
effort to adopt the following goals of the Victims of Crime Bill of Rights: . . . (4) Victims
of crime should have the right to a reasonable assurance that the accused will be tried in an
expeditious manner”).
190 “ H.J.Res. 174 (104th Cong.) (“the victim shall have the following rights: . . . to a speedy
trial, a final conclusion free from unreasonable delay. . .”); S.J.Res. 52 (104th Cong.)(same).
191 H.J.Res. 173 (104th Cong.) (“any victim shall have the right . . . to have the proceedings
resolved in a prompt and timely manner”); S.J.Res. 65 (104th Cong.)(“Victims . . . shall
have the rights . . . to a final disposition free form unreasonable delay”).
192 S.J.Res. 44 (105th Cong.)(“Each victim . . . shall have the rights. . .to consideration for
the interest of the victim in a trial free from unreasonable delay”); H.J.Res. 129 (105th
Cong.)(same); S.J.Res. 6 (105th Cong.) (“Each victim . . . shall have the rights . . .to a final
disposition of the proceedings relating to the crime free from unreasonable delay”); H.J.Res.
71 (105th Cong.) (“ . . . a victim . . . shall have the right . . .to seek relief from an
unreasonable delay of the final disposition of the proceedings relating to the crime”)
(emphasis added in each instance).
193 H.J.Res. 64 (106th Cong); S.J.Res. 3(106th Cong.).

proposals seemed to carry the implication that the right could only be claimed in
conjunction with other proceedings (e.g., “considered” in the context of a defense or
government motion for a continuance but not a defendant’s motion for a new trial),
but not necessarily providing grounds for a free standing victim’s motion when the
question of timing was not otherwise before the court:
A victim . . . shall have the right[] . . . to consideration of the interest of the
victim that any trial be free from unreasonable delay. S.J.Res. 3 (106th Cong.);
H.J.Res. 64 (106th Cong.).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have . . . the right to
adjudicative decisions that duly consider the victim’s . . . interest in avoiding
unreasonable delay
Some of the words are new. The phrase “adjudicative decisions” has replaced
“trials” and “proceedings”; “duly consider” appears instead of “consideration;” and
“avoiding unreasonable delay” stands where “free from unreasonable delay” once
was. Yet at least some of the concepts seem to have remanded constant. Reasonable
delays must be countenanced; unreasonable delays tolerated only if they are
outweighed by other interests. On the other hand, the term “adjudicative decisions”
appears clearly more inclusive than “trials” and although it carries judicial coloring
perhaps it is not much different than “proceedings” except that there is no literal
requirement that the adjudications be public. However, since only victims may assert
their rights, section 3, and since victims are entitled to heard only at public
proceedings, section 2, the Amendment’s authors may have intended the
adjudications at which victims’ interests must be considered to be limited to public
proceedings.
At least one Congressional witness has concluded that “[a]s used in this clause,
‘adjudicative decisions’ includes both court decisions and decisions reached by
adjudicative bodies, such as parole boards. Any decision reached after a proceeding
in which different sides of an issue would be presented would be an adjudicative
decision,” House Hearing V at 42 (statement of Steven J. Twist); see also, Senate
Hearing IV at 193; House Hearing IV at 25.
So the decisions of state and federal tribunals must involve consideration of the
interests that victims have in avoiding unreasonable delay. That still leaves several
questions unanswered. Does it mean that victims have a right to be heard prior to any
decision that might either cause or reduce delay? Another hearing witness expressed
concern that the right to consideration of the interest might include the right to voice
the interest: “Does a crime victim have the right to object to the admission of
evidence on the ground that it might lengthen the trial?” House Hearing V at 81
(statement of James Orenstein). The Amendment’s language does not necessarily
create a right to assert the interest. This interest triggers a right to consideration.
Other interests trigger a right to be heard. Courts might conclude the difference is
significant.



Or they may conclude that the victim has a right to be heard on the admissibility
of evidence, not because of his or her interest in avoiding unreasonable delay but
because of his or her right to be heard at “public release proceedings,” as noted
earlier. It may be considered significant that neither the government nor the
defendant may be allowed to bring the victim’s interest to the attention of the
tribunal, since in the words of the Amendment elsewhere, “[o]nly the victim or the
victim’s lawful representative may assert the right established by this article.”
Does a victim always have a recognizable interest in avoiding all unreasonable
delay or only in those unreasonable delays that do more than simply offend the
victim? Does a victim only have an interest entitled to due consideration when the
victim suffers some disadvantage because of the unreasonable delay? The answers
may lie in what the courts consider unreasonable delay. In earlier versions, it has
been suggested that the test for reasonableness rests in the Supreme Court’s speedy
trial jurisprudence which weighs the “length of delay, reasons for the delay,
defendant’s assertion of his right, and prejudice to the defendant.”194 The Senate
Judiciary Committee continued to endorse that view in the 108th Congress, “In
determining what delay is ‘unreasonable,’ the court can look to the precedents that
exist interpreting a defendant’s right to a speedy trial, S.Rept. 108-191 at 40.
Restitution
The third victim interest entitled to consideration under some circumstances
involves consideration of restitution claims. The Amendment is very different from
past proposals. It does not establish a right to restitution in so many words. It does
not explicit convey a right to have proceedings reopened for failure to accommodate
a victim’s right to restitution. Instead for the first time it speaks of just and timely
claims to restitution, two concepts which could be subject to several interpretations.
Contemporary Practices.
Every jurisdiction authorizes its courts to order convicted defendants to pay
victim restitution.195 Each jurisdiction, however, addresses distinctly questions of
when if ever restitution is mandatory; the extent to which restitution orders are
properly subject to plea agreements; whether restitution is available for injuries
caused by acts of juvenile delinquency; which victims are entitled to restitution; what
priority, if any, restitution takes over forfeiture of the defendant’s assets or his
payment of criminal fines; and more.196


194 S.Rept. 105-409 at 31 (“In determining what delay is ‘unreasonable,’ the courts can look
to the precedents that exist interpreting a defendant’s right to a speedy trial”); accord,
S.Rept. 106-254 at 36-7; Barker v. Wingo, 407 U.S. 514, 530 (1972)(speedy trial); United
States v. $8,850, 461 U.S. 555, 564 (due process concerning delays between the seizure of
property and the initiation of in rem forfeiture proceedings).
195 App. IV, Victims’ Rights Amendment: Background & Issues Associated with Proposals
to Amend the United States Constitution, CRS Report 97-735 (2000).
196 See generally, Measure and Elements of Restitution to Which Victim Is Entitled Under
State Criminal Statute, 15 ALR5TH 391 (1993 & 2001 Supp.).

Past Proposals.
The first victims’ rights proposals promised either a right “to an order of
restitution from the convicted offender,”197 or a right “to full restitution from the
convicted offender.”198 Subsequent proposals opted for the right to an order
version.199 The proposals appeared to make restitution orders mandatory as a matter
of right. The scope of the right was unstated. Although the proposals applied to
juvenile proceedings, the use of the term “convicted offender” might have been
construed to limit their restitution command to criminal convictions and therefore not
reach findings of delinquency.200
Restitution orders in a nominal amount or subject to priorities for criminal fines
or forfeiture or other claims against the defendant’s assets might have seemed
inconsistent with the decision to elevate mandatory victim restitution to a
constitutional right. Yet the Senate reports concluded that the proposal did “not
confer on victims any rights to a specific amount of restitution, leaving the court free
to order nominal restitution . . . . The right conferred on victims [was] one to an
‘order’ of restitution. With the order in hand, questions of enforcement of the order
and its priority as against other judgments [were] left to the applicable Federal and
State law,” S.Rept. 106-254 at 37; S.Rept. 105-409 at 31.
The Senate reports, however, have continuously suggested that the right might
include the right to a pre-trial restraining order to prevent an accused from dissipating
assets that might be used to satisfy a restitution order, S.Rept. 108-191 at 41; S.Rept.
106-254 at 37; S.Rept. 105-409 at 32. The right also might have extended to prevent
dissipation in the form of payment of attorneys’ fees for the accused, since the
accused has only a qualified right to the assistance of counsel of his choice.201


197 S.J.Res. 65 (104th Cong.); H.J.Res. 173 (104th Cong.)(the right “to have the court order
restitution from the defendant upon conviction”).
198 H.J.Res. 174 (104th Cong.); S.J.Res. 52 (104th Cong.).
199 H.J.Res. 71 (105th Cong.)(the right “to an order of restitution from the convicted
offender”); H.J.Res. 129 (105th Cong.)(same); S.J.Res. 6 (105th Cong.)(same); S.J.Res. 44
(105th Cong.)(same); H.J.Res. 64 (106th Cong.)(same); S.J.Res. 3 (106th Cong.)(same).
200 This construction might have drawn some support from the observation in the Senate
report that with respect to this language in an earlier proposal, “[t]he right is, of course,
limited to ‘convicted’ defendants, that is, those who pled guilty, are found guilty, or enter
a plea of no contest,” S.Rept. 105-409 at 32. Unless they are prosecuted as adults, juveniles
do not plead guilty, are not found guilty, nor do they enter nolo pleas. They confess to being
or are found delinquent, or in need of supervision, or neglected, but they are not convicted.
The Committee also declared that it had “previously explained [its] philosophy in some
detail in connection with the Mandatory Victim Restitution Act, codified at 18 U.S.C.
§§3663A and 3664, and intends that this right operate in a similar fashion,” S.Rept. 105-
409 at 31 (emphasis added). Even though the Mandatory Victim Restitution Act applies to
juveniles tried and convicted as adults, it does not apply to findings of delinquency or other
dispositions following juvenile proceedings.
201 Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Monsanto, 491 U.S.
600, 616 (1989)(“if the Government may, post-trial, forbid the use of forfeited assets to pay
(continued...)

Proposals in the 106th Congress provided:
A victim . . . shall have the right[] . . . to an order of restitution from the
convicted offender. S.J.Res. 3 (106th Cong.); H.J.Res. 64 (106th Cong.).
Amendment in the 108th Congress.
SECTION 2. A victim of violent crime shall have . . . the right to
adjudicative decisions that duly consider the victim’s . . . interest in . . . just and
timely claims to restitution from the offender
This appears to be a fairly dramatic withdrawal from the position taken in the
proposals of other Congresses. What was a right to a restitution order has become
the right to consideration of just and timely victims’ claims, appropriate to the
circumstances, weighed against the interests of others, and perhaps only applicable
during proceedings on other matters. As long as the victim’s interest in just
restitution when asserted in a timely manner is recognized, the Amendment might
appear to leave the law of restitution unchanged. In those jurisdictions where
restitution is discretionary rather than a matter of right, a victim’s interest in
restitution appears to be a factor that must be considered – not a controlling factor,
simply a factor.
Others see the language differently. Speaking of this portion of the Amendment,
one commentator offered an example to illustrate its reach:
Jane Doe was beaten and raped in a remote wooded area of Vermont. . . .
Her injuries were extensive. . . . When her case was resolved by way of a plea
bargain she was not given the right to speak before the court. Incredibly, the
sentence imposed did not order the criminal to pay restitution. Today he earns
$7.50 an hour making furniture inside the prison walls – and none of it goes to
her for her damages and injuries because it was not part of the criminal sentence.
If this provision had been the law, Jane would today be receiving restitution
payments each month. House Hearing IV at 27 (statement of Steven J. Twist).
The implication is that in horrific cases, victims have a right to restitution
without reference to any other factors. Yet insertion of the word “just” for the first
time in the restitution component of the Amendment presumably calls for
consideration of such factors when appropriate. Moreover, it probably precludes
restitution claims by the “ripped-off” drug dealer or others victimized in the course
of their own illegal conduct at least in some circumstances.202


201 (...continued)
an attorney, then surely no constitutional violation occurs when, after probable cause is
adequately established, the Government obtains an order barring a defendant from
frustrating that end by dissipating his assets prior to trial”).
202 Compare, United States v. Martinez, 978 F.Supp. 1442 (D.N.Mex. 1997)(refusing to
issue mandatory restitution order for the benefit of illegal Indian casino which had been theth
victim of an armed robbery), with, United States v. Bonetti, 277 F.3d 441 (4 Cir.
2002)(holding that an illegal immigrant was entitled to restitution from those who harbored
(continued...)

Past proposals explicitly allowed victims to reopen final proceedings in
vindication of their right to restitution. That language is gone and in its place is a
reference to “timely” claims to restitution. The implications are obvious, but the
statement quoted above seems to suggest that “timeliness” may be judged by the date
of the injury, the date of sentencing, or the date on which the offender has the
resources to begin paying restitution (“Today [the offender] earns $7.50 an hour
making furniture inside the prison walls – and none of it goes to her for her damages
and injuries because it was not part of the criminal sentence. If this provision had
been the law, Jane would today be receiving restitution payments each month”).
Legislative Authority
Section 4 vests Congress with the power to enforce the Amendment through
appropriate legislation. In addition, the legislative history points out that, subject to
Congress’ pre-emptive legislative prerogatives, the state legislatures share with
Congress the authority within their own domains to restrict victims’ rights in the
name of a substantial interest in public safety or the administration of criminal justice
or in response to a compelling necessity. They also continue to enjoy fundamental
authority to outlaw new forms of misconduct. It is somewhat unclear whether they
may legalize conduct which they had outlawed when the Amendment went into
effect. For example, does the Amendment permit a state that outlaws solicitation of
various violent crimes to reduce the extent of its basic victims’ rights coverage by
repealing its proscription on solicitation – other than for purposes of public safety,
the administration of criminal justice or compelling necessity? Neither the language
of the Amendment nor its legislative history seem to provide any clear answer.
Contemporary Practices.
The grant of legislative implementing authority may shield against the
appearance of the unexpected and undesirable consequences discovered after
ratification of a constitutional amendment. The difficulty of amending the
Constitution argues for a legislative safety valve. Of course, this argument loses
considerable force when one of the principal reasons for enacting a constitutional
amendment rather than merely enacting a statute is to ensure that the rights it grants
are not easily denied or diluted.
One of the perils implicit in opting for extensive legislative powers is the
prospect of unfulfilled promises. It is certainly possible to draft a generally worded
constitutional amendment in anticipation of future legislative refinements. And these
may be forthcoming. But it may also happen that the refinements must be laboriously
crafted through the courts because legislative resolution proves either unattainable
or less than universally appealing.


202 (...continued)
her under abusive conditions).

Past Proposals.
Early proposals granted Congress and the state legislatures the power to enact
implementing legislation within their respective jurisdictions.203 Over time, some of
the proposals began to expand the explicit legislative authority of Congress204 and
then to constrict the explicit legislative authority of the states.205
The Senate report in the 105th Congress explained, however, that the loss of
state legislative authority was less sweeping than it might have appeared. It asserts
that the power to define the class of victims to whom the proposal would apply was
by implication to be shared by Congress and the states.206 Subject to preemptive
federal legislation, the states were to be permitted to paint the scope of the
amendment as broadly and perhaps as narrowly as they chose.207 Some Committee


203 E.g., S.J.Res. 52 (104th Cong.)(“The several States, with respect to a proceeding in a
State forum, and the Congress, with respect to a proceeding in a United States forum, shall
have the power to enforce this article by appropriate legislation”); H.J.Res. 71 (105th
Cong.)(“The Congress and the States shall have the power to enforce this article within their
respective jurisdictions by appropriate legislation, including the power to enact exceptions
when required by public interest”).
204 S.J.Res. 6 (“The Congress and the States shall have the power to enforce this article
within their respective jurisdictions by appropriate legislation, including the power to enact
exceptions when required for compelling reasons of public safety or for judicial efficiency
in mass victim cases”) (“Each victim of a crime of violence and other crimes that Congress
may define by law, shall have the rights to . . . .”)(emphasis added) (“The rights established
by this article shall apply in . . . military proceedings to the extent that Congress may
provide by law . . . .”)(emphasis added).
205 S.J.Res. 44 (“The Congress shall have the power to enforce this article by appropriate
legislation. Exceptions to the rights established by this article may be created only when
necessary to achieve a compelling interest”).
H.J.Res. 129 (“The Congress shall have the power to enforce this article by appropriate
legislation”). The questions involving impact on the states are less vexing in the case of
H.J.Res. 129 which only applies to federal proceedings (“The rights established by this
article shall apply in all Federal proceedings. . . .”).
206 S.Rept. 105-409 at 23 (“The Committee anticipates that Congress will quickly pass an
implementing statute defining ‘victim’ for Federal proceedings. Moreover, nothing removes
from the states their plenary authority to enact definitional laws for purposes of their own
criminal system. . . . Since the legislatures define what is criminal conduct, it makes equal
sense for them to also have the ability to further refine the definition of ‘victim’”).
207 S.Rept. 105-409 at 35 (“This provision is similar to existing language found in section
5 of the 14th amendment to the Constitution. This provision will be interpreted in similar
fashion to allow Congress to ‘enforce’ the rights, that is, to insure that the rights conveyed
by the amendment are in fact respected. At the same time, consistent with the plain
language of the provision, the Federal Government and the States will retain their power to
implement the amendment. For example, the States will, subject to the Supremacy Clause,
flesh out the contours of the amendment by providing definitions of ‘victim’ of crime and
‘crimes of violence’”).

members were troubled by this resolution;208 some skeptical that it could hold
sway. 209
Proposals further described legislative authority by limiting the power to curtail
the rights they explicitly established:
Exceptions to the rights established by this article may be created only when
necessary to achieve a compelling interest.


208 “Unlike previous versions of the proposed amendment, which permitted States to
enforce the amendment in their jurisdictions, S.J.Res. 44 gives Congress exclusive power
to ‘enforce this article by appropriate legislation.’ I believe that granting Congress sole
power to enforce the provisions of the victims’ rights amendment and thus, inter alia, to
define terms such as ‘victim’ and ‘violent crime’ and to enforce the guarantees of
‘reasonable notice’ of public proceedings and of the rights established by the amendment
will be a significant and troubling step towards federalization of crime and the
nationalization of our criminal justice system. . . . It is possible that the victims’ rights
constitutional amendment will lack [the] flexibility that is the hallmark of our Federal
system, and perhaps in the process invalidate many State victims’ rights provisions. Such
a prospect should give us pause,” S.Rept. 105-409 at 44-5 (additional views of Sen. Hatch).
209 “The majority appears to believe that it can control some of the inevitable damage
through explications in the Committee report about how the amendment will operate. We
doubt that the courts will care much for such efforts. They will look first at the plain
meaning of the text of the amendment. They will seek guidance in Supreme Court
precedents interpreting provisions using similar language. They will not resort to the
majority report to interpret wording that is clearly understood in current legal and political
circles. Any interpretative value of the majority report is further undermined by the
inconsistency of the document, which in some situations narrows the impact of the
amendment . . . and in other circumstances expands the impact of the amendment (e.g., by
devising a role for States in implementing the amendment . . .). Such inconsistency renders
the majority report . . . legally meaningless. Weaknesses in the text of the amendment
cannot with any confidence be cured by the majority’s views, especially not when the
majority’s analysis is so directly at odds with the amendment’s plain language and with
settled constitutional doctrine.
* * *
“The majority report attempts to deflect the federalism concerns raised by S.J.Res. 44
by suggesting that the States will retain ‘plenary authority’ to implement the amendment
within their own criminal systems. We find this suggestion surprising given the plain
language of the amendment’s implementation clause (in section 3): ‘The Congress shall
have the power to enforce this article by appropriate legislation.’ Identical language in
earlier constitutional amendments has been read to vest enforcement authority exclusively
in the Congress. In the case of S.J.Res. 44, moreover, the text is illuminated by the
legislative history. Earlier drafts of the amendment expressly extended enforcement
authority to the states. These drafts drew fire from constitutional scholars, who expressed
doubt that constitutionally-authorized State laws could be supreme over State constitutions
or even over federal laws, and concern that, for the first time, rights secured by the Federal
Constitution would mean different things in different parts of the country. The Committee
then amended the text to its current formulation. Faced with this history and text, the courts
will surely conclude that S.J.Res. 44 deprives States of any authority to legislate in the area
of victims’ rights,” S.Rept. 105-409 at 50-1, 68-9 (minority views of Sens. Leahy, Kennedy
and Kohl).

This intriguing sentence has appeared in one form or another in several
proposed amendments in the past.210 In the evolution of the permissible restrictions,
the first proposals granted the Congress and the states authority to “implement” in
some instances,211 “to enforce” in others,212 and “to enforce” and create exceptions
“for compelling reasons of public safety” in still others.213 The diversity continued
in the 105th Congress, when some of the proposed amendments vested the states and
Congress (or simply the Congress) with authority to implement and enforce and some
simply with the power to enforce; in either case, attendant authority to create
exceptions–whether in the “public interest” or for “public safety or judicial
efficiency” or in the name of a “compelling interest”–became more common.214
Proposals in the 106th brought uniformity. There were no references to state
authority, gone was any express Congressional authority to “implement,” only
Congress’ enforcement authority survived. Exceptions could be made but only for
reasons of compelling interests.215 Departure from the requirement of earlier versions
that exceptions be “enacted,” implied that exceptions might be crafted either
legislatively or judicially.


210 S.J.Res. 65 (104th Cong.)(“The Congress and the States shall have the power to enforce
this article . . . by appropriate legislation, including the power to enact exceptions when
required for compelling reasons of public safety”); H.R.Res. 71 (105th Cong.)(“The
Congress and the States shall have the power to enforce this article . . . by appropriate
legislation, including the power to enact exceptions when required by public interest”);
S.J.Res. 6 (105th Cong.)(“The Congress and the States shall have the power to enforce this
article . . . by appropriate legislation, including the power to enact exceptions when required
for compelling reasons of public safety or for judicial efficiency in mass victim
cases”)(emphasis added).
211 S.J.Res. 52 (104th Cong.) (“The several States, with respect to a proceeding in a State
forum, and the Congress, with respect to a proceeding in a United States forum, shall have
the power to implement further this article by appropriate legislation”); H.J.Res. 174 (104th
Cong.)(same).
212 H.J.Res. 173 (104th Cong.).
213 S.J.Res. 65 (104th Cong.).
214 S.J.Res. 6 (“The Congress and the States shall have the power to enforce this article
within their respective jurisdictions by appropriate legislation, including the power to enact
exceptions when required for compelling reasons of public safety or for judicial efficiency
in mass victim cases”); S.J.Res. 44 (as introduced) (“The Congress and the States shall have
the power to implement and enforce this article within their respective jurisdictions by
appropriate legislation, including the power to enact exceptions when necessary to achieve
a compelling interest”);S.J.Res. 44 (as reported) (“The Congress shall have the power to
enforce this article by appropriate legislation. Exceptions to the rights established by this
article may be created only when necessary to achieve a compelling interest”); H.J.Res. 71
(“The Congress and the States shall have the power to enforce this article within their
respective jurisdictions by appropriate legislation, including the power to enact exceptions
when required by public safety”); H.J.Res. 129 (“Congress shall have the power to
implement and enforce this article by appropriate legislation”).
215 S.J.Res. 3 (“The Congress shall have the power to enforce this article by appropriate
legislation. Exceptions to the rights established by this article may be created only when
necessary to achieve a compelling interest”); H.J.Res. 64 (same).

The use of the term “compelling interest,” on the other hand, suggested that the
authority to create exceptions might be fairly limited. The Senate report on the
version of S.J.Res. 44 where the language first appeared seemed to confirm both
suggestions.216 Although the report identified one unusual (courtroom attendance
rights in a case with hundreds of victims)217 and two commonplace situations (right
to release notification in domestic and gang violence cases)218 under which
exceptions might be warranted, several Committee members found the “compelling
interest” standard too restrictive.219 The Justice Department raised the same
objection.220 Others might have questioned whether the standard’s amorphous nature
made it unsuitable.221
The relevant portions of the proposals in the 106th Congress declared:
A victim of a crime of violence, as those terms may be defined by law, shall
have the rights . . . . S.J.Res. 3 (106th Cong.).


216 S.Rept. 105-409 at 35 (“Courts interpreting the Crime Victims’ Rights Amendment will
no doubt give a similar, common sense construction to its provisions. To assist in providing
necessary flexibility for handling unusual situations, the exceptions language in the
amendment explicitly recognizes that in certain rare circumstances exceptions may need to
be created to victims’ rights”).
217 S.Rept. 105-409 at 36 (“in mass victim cases, there may be a need to provide certain
limited exceptions to victims’ rights. For instance, for a crime perpetrated against hundreds
of victims, it may be impractical or even impossible to give all victims the right be
physically present in the courtroom”).
218 Id. (“[I]n some cases of domestic violence, the dynamics of victim-offender
relationships may require some modification of otherwise typical victims’ rights provisions.
. . [and] situations may arise involving inter-gang violence, where notifying the member of
a rival gang of an offenders’ impending release may spawn retaliatory violence”).
219 S.Rept. 105-409 at 45 (additional views of Sen. Hatch) (“The compelling interest test
is itself derived from existing constitutional jurisprudence, and is the highest level of
scrutiny given a government act alleged to infringe on a constitutional right. The compelling
interest test and its twin, strict scrutiny, are sometimes described as ‘strict in theory but fatal
in fact.’ I truly question whether it is wise to command through constitutional text the
application of such a high standard to all future facts and circumstances”); Id. at 75
(minority views of Sens. Leahy, Kennedy and Kohl).
220 House Hearing III (prepared statement of Assistant Attorney General Eleanor D.
Acheson)(“We believe that the authority to create exceptions should exist where necessary
to promote a ‘significant’ government interest, rather than the ‘compelling’ interest required
by the current resolution”).
221 See e.g., Vernonia School District v. Acton, 515 U.S. 646, 661 (1995)(“It is a mistake,
however, to think that the phrase ‘compelling state interest,’ in the Fourth Amendment
context, describes a fixed minimum quantum of governmental concern, so that one can
dispose of a case by answering in insolation the question: Is there a compelling state interest
here? Rather, the phrase describes an interest that appears important enough to justify the
particular search at hand in light of other factors that show the search to be relatively
intrusive upon a genuine expectation of privacy”); Wilcher v. City of Wilmington, 139 F.3d
366, 377 (3d Cir. 1998)(“‘compelling interest’ does not have the same meaning in [a Fourth
Amendment] context as it does in other areas of constitutional law”).

The Congress shall have the power to enforce this article by appropriate
legislation. Exceptions to the rights established by this article may be created
only when necessary to achieve a compelling interest. H.J.Res. 64 (106th
Cong.); S.J.Res. 3 (106th Cong.).
Amendment in the 108th Congress.
SECTION 4. Congress shall have the power to enforce by appropriate
legislation this article. . . .
SECTION 2. . . . These rights shall not be restricted except when and to the
degree dictated by a substantial interest in public safety or the administration
of criminal justice, or by compelling necessity.
In the 108th, some uniformity continues, the states are not mentioned, Congress
enjoys explicit legislative authority to enact enforcement mechanisms (but not to
make implementing fixes), but the number of exceptions has grown to include public
safety, the administration of criminal justice, and compelling necessity. Although,
the phrases “substantial interest”, “public safety”, “administration of criminal
justice”, and “compelling necessity” probably cannot be considered terms of art, they
appear with varying degrees of regularity in statute and case law.
“Substantial interest” surfaces perhaps most frequently in the application of the
Central Hudson test. The regulation of commercial speech is subject to an
intermediate level of First Amendment scrutiny under a four part standard initially
articulated in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447
U.S. 557, 566, 569 (1980)(emphasis added): “At the outset, we must determine
whether the expression is protected by the First Amendment. . . . Next, we ask
whether the asserted governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary
to serve that interest.”222 One Congressional witness has asserted that “substantial
interest” as used in the Amendment is intended to incorporate the third and fourth
prongs of the Central Hudson test, i.e., that the government must not only
demonstrate a substantial interest but show how its action furthers that interest and
that its action is no more intrusive than necessary to protect the interest:
The ‘substantial interest’ standard is known in constitutional jurisprudence
[E.g., Central Hudson Gas & Ele.Corp. v. Public Service Comm’n of New York,
447 U.S. 557 (1980). (‘The state must assert a substantial interest to be achieved
by commercial speech. Moreover, the regulatory technique must be in
proportion to that interest.’ Id. At 564. The interest must be clearly articulated
and then closely examined to determine whether it is substantial. The Court’s
analysis at 569 is instructive on this point)] and is intended to be high enough so
that only ‘essential’ [Webster’s New Collegiate Dictionary, 1161
(1977)(‘Substantial . . . 1 a: consisting of or relating to substance b: not


222 See also, Greater New Orleans Broadcasting Association, Inc. v. United States, 527
U.S. 173, 183 (1999); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803,

817 (2000).



imaginary or illusory: REAL, TRUE c: IMPORTANT, ESSENTIAL. . . .’]
interests in public safety and the administration of justice will qualify as
justifications for restrictions of the enumerated rights. Senate Hearing V; House
Hearing V at 46 (statement of Steven T. Twist)(capitalization in the original;
footnotes of the original in brackets); see also, Senate Hearing IV at 197; House
Hearing IV at 28.
The concept of “public safety” may be a bit more amorphous. The Constitution
itself refers to public safety in the suspension clause (“The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of rebellion or invasion
the public safety may require it,” U.S.Const. Art.I, §9, cl.2 (emphasis added)). In a
broader sense, the phrase may refer to the basis under which the states may validly
exercise their police powers,223 or to “the welfare and protection of the general224
public.” The Supreme Court has recognized a “public safety exception” to the
Miranda rule which permits admissibility of the statements of defendant in custody
notwithstanding the absence of Miranda warnings when the statements were elicited
in the interest of public safety.225 A more recent observation declared that “[w]here
publication of private information constitutes a wrongful act, the law recognizes a
privilege allowing the reporting of threats to public safety.”226
There may be some question whether exceptions may be drawn to protect a
single individual when no one else in threatened or to render safe areas from which
the general public is ordinarily excluded (e.g., prisons). One congressional witness
has espoused such a broad application:
In discussing the compelling interest standard of S.J.Res. 3, the Senate
Judiciary Report noted, ‘In cases of domestic violence, the dynamics of victim-
offender relationships may require some modification of otherwise typical
victims’ rights provisions. This [provision] offers the ability to do just that . . .
. [Moreover] situations may arise involving intergang violence, where notifying
the member of a rival gang of an offender’s impending release may spawn
retaliatory violence. Again, this provision provides a basis for dealing with such
situations.’
‘Public safety’ as used here includes the safety of the public generally, as
well as the safety of identified individuals. [See Bartnicki v. Vopper, 532 U.S
514 (2001)(where a ‘public safety’ threat was to identified school board
members]. Senate Hearing V; House Hearing V at 46 (statement of Steven T.
Twist); see also, Senate Hearing IV at 198; House Hearing IV at 28.
The outer limits of the term “administration of criminal justice” seem even more
uncertain. The Supreme Court apparently understands the “administration of
criminal justice” to describe judicial proceedings associated with the trial of criminal
offenses, whether the phrase contemplates official activities ancillary to those


223 E.g., Nollan v. California Coastal Comm’n, 483 U.S. 837 (1987).
224 BLACKS LAW DICTIONARY 1245 (7th ed. 1999).
225 E.g., response of an arrested suspect, wearing an empty holster, to the query, “where’s
the gun,” New York v. Quarles, 467 U.S. 649, 655-56 (1984).
226 Bartnicki v. Vopper, 532 U.S. 514, 539 (2001)(Breyer & O’Connor, JJ., concurring)
(emphasis added).

proceedings is less clear.227 One witness in the hearings translated the term to mean
“the procedural functioning of the [criminal trial] proceeding.”228 Another voiced
concern over the impact on prison administration of such a narrow reading.229
The Court has used the term “compelling necessity” in two environments: (1)
to describe the burden a party must bear when seeking disclosure of grand jury
information, i.e., “particularized need;”230 and (2) to describe the burden the


227 Ohler v. United States, 529 U.S. 753, 759-60 (2000)(“it is not thought inconsistent with
the enlightened administration of criminal justice to require the defendant to weigh such
pros and cons in deciding whether to testify [at his criminal trial]”); United States v.
Alvarez-Sanchez, 511 U.S. 350, 354 (1994)(“The so-called McNabb-Mallory rule, adopted
by this Court in the exercise of its supervisory authority over the administration of criminal
justice in federal courts”); Butterworth v. Smith, 494 U.S. 624, 629 (1990)(“Historically, the
grand jury has served an important role in the administration of criminal justice”); Miranda
v. Arizona, 384 U.S. 436, 480 (1966(“An attorney may advise his client not to talk to police
until he has had an opportunity to investigate the case, or he may wish to be present with his
client during any police questioning. . . . In fulfilling this responsibility the attorney plays
a vital role in the administration of criminal justice under our Constitution”).
228 “the administration of criminal justice [-] It is intended that the language will address
management issues within the courtroom or logistical issues arising when it would otherwise
be impossible to provide a right otherwise guaranteed. In cases involving a massive number
of victims notice of public proceedings may need to be given by other means, courtrooms
may not be large enough to accommodate every victim’s interest, and the right to be heard
may have to be exercised through other forms. The phrase is not intended to address issues
related to the protection of defendants’ rights.
“The term ‘administration of criminal justice,’ as used by the United States Supreme
Court is a catch-all phrase that encompasses any aspect of criminal procedure. The term
‘administration’ includes two components: (1) the procedural functioning of the proceeding
and (2) the substantive interest of parties in the proceeding. The term ‘administration’ in
the Amendment is narrower than the broad usage of it in Supreme Court case-law and refers
to the first description: the procedural functioning of the proceeding. Among the many
definitions available for the term ‘administration’ in Webster’s Third International
Dictionary of the English Language (1971), the most appropriate definition to describe the
term as used in the Amendment is: 12b. Performance of executive [prosecutorial and
judicial] duties: management, direction, superintendence.’ (Brackets added),” Senate
Hearing V; House Hearing IV at 47 (statement of Steven T. Twist); see also, Senate Hearing
IV at 198-99; House Hearing IV at 28 (statement of Steven T. Twist).
229 “[T]he current bill improves upon its predecessor by expanding on the ‘compelling
interest’ standard for exceptions. However, if courts do not interpret ‘the administration of
criminal justice’ broadly, the legitimate needs of prison administration might nevertheless
be sacrificed. Although I would likely disagree with an interpretation of the phrase that
excluded prison administration, such an interpretation is certainly possible. Given that
habeas corpus proceedings challenging the treatment of prisoners are treated as civil cases
and are collateral to the underlying criminal prosecutions, it would not be unreasonable for
a court to conclude that the needs of prison administrators are not included within the phrase
‘administration of criminal justice’. . . .” Senate Hearing V; House Hearing V at 78
(statement of James Orenstein); see also, Senate Hearing IV at121; House Hearing IV at 49
(statement of James Orenstein).
230 United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)(emphasis
(continued...)

government must bear to justify regulatory intrusion upon a fundamental
constitutional right, i.e., “compelling interest.”231 In either case, the “compelling
necessity” standard may be less burdensome than the “substantial interest” standard
that attaches to public safety restrictions and perhaps to restrictions in the name of
the administration of criminal justice (“These rights shall not be restricted except
when and to the degree dictated by a substantial interest in public safety or the
administration of criminal justice, or by compelling necessity”).232
When interpreting the Amendment, courts might favor the compelling interest
option because it alludes to a governmental burden while particularized need is a
burden ordinarily shouldered by a private party. On the other hand, the frequent use
of “compelling interest” in earlier proposed amendments may indicate that the
drafters switched to “compelling necessity” with a different standard in mind. House
witnesses felt “compelling necessity” called for a demanding “strict scrutiny”
standard. 233
The Senate Judiciary Committee report in the 108th Congress briefly explains
its understanding of the restrictions clause. It expects recourse to the clause will
occur only rarely and supplies three examples of when the clause might be called
upon – in the case of crimes with catastrophic consequences (“mass victim cases”);
in domestic violence cases; and in cases of “inter-gang violence,” S.Rept. 108-191
at 41.
Many of the Amendment’s rights are subject to a rule of reasonableness that
seems to afford flexibility in mass victim cases. There is, however, no such explicit
limitation upon the right not to be excluded, and it is here that the Committee


230 (...continued)
added)(“This indispensable secrecy of grand jury proceedings must not be broken except
where there is a compelling necessity”); cf., Douglas Oil Co. v. Petrol Stops Northwest, 441
U.S. 211, 217-24 (1979).
231 Riley v. National Federation of the Blind, 487 U.S. 781, 800 (1988)(emphasis
added)(“These more narrowly tailored rules are in keeping with the First Amendment
directive that government not dictate the content of speech absent compelling necessity, and
then, only by means precisely tailored”);Plyler v. Doe, 457 U.S. 202, 224 (1982)(emphasis
added (“Nor is education a fundamental right; a State need not justify by compelling
necessity every variation in the manner in which education is provided to its population”).
232 The Amendment’s use of “substantial interest” is also somewhat ambiguous. Are
restrictions permitted when dictated by the administration of criminal justice or by a
substantial interest in public safety or must the administration of criminal justice interest be
substantial as well. The more logical construction would seem to apply the “substantial
interest” measure to both public safety and the administration of criminal justice, but a
contrary construction would not be unreasonable.
233 “[P]rison-related restrictions of victims’ rights must therefore pass strict scrutiny under
the compelling necessity prong of Section 2,” Senate Hearing V; House Hearing V at 78
(statement of James Orenstein); see also, Senate Hearing IV at121; House Hearing IV at 49
(statement of James Orenstein).

believes the restriction clause might come into play.234 The Committee is comparably
precise in its observation that the clause might be invoked “where notifying the
member of a rival gang of an offenders’ impeding release may spawn retaliatory
violence,” id. The gang example may serve the added purpose of clarifying the scope
of the Amendment’s right to reasonable and timely notice of the release or escape of
an accused. When the Committee identifies gang retaliation as an example of where
the restriction clause may prove beneficial, it suggests that otherwise concern for
offender safety may not be considered in formulating and implementing reasonable
victim notification procedures.
This has obvious implications in a domestic violence situation and may be what
the Committee had in mind when it offered the domestic violence example. Yet, the
report is cryptic as to when the use of the restrictions clause might be appropriate or
necessary in a domestic violence case. It simply declares that, “in some cases of
domestic violence, the dynamics of victim-offender relationships may require some
modification of otherwise typical victims’ rights provisions,” id. The report does
confirm the Committee’s understanding of the clause’s use of the terms “substantial
interest” and “compelling necessity,” refers to the standards developed by the
Supreme Court, with the added observation “that defendants’ constitutional rights
may well meet this standard in many cases,” S.Rept. 108-191 at 41-2.
The restriction clause mentions neither Congress nor the states. Earlier versions
spoke of state authority in the area. The omission might be considered telling, or it
may be that such a construction is too wildly impractical to have been intended. It
may be that the restrictions clause may only be activated by Congress acting pursuant
to the enforcement authority the Amendment confers in section 4. Perhaps, in the
absence of a statute no restriction may be found. On the other hand, the Committee
report begins its discussion of the restrictions clause by noting that the First
Amendment not absolute and that “[c]ourts interpreting the Crime Victims’ Rights
Amendment will no doubt give a similar common sense construction to its
provisions,” S.Rept. 108-191 at 41. The implication is that the courts, in most
instances at least initially the state courts, will be the ones to determine whether the
circumstances in a particular case warrant the application of the restrictions clause.
Enforcement
Section 4 of the Amendment empowers Congress to enact legislation to
facilitate its enforcement. Section 3 insists that only victims and their representatives
may seek to enforce rights under the Amendment; those accused of the crime may
not. The relief available may not include a claim for damages or the right to have
completed trials reopened to vindicate victims’ rights. Other sections color the relief
available by circumscribing the Amendment’s right to notice and to be heard with


234 “[F]or a crime perpetrated against hundreds of victims, it may be impractical or even
impossible to give all victims the right to be physically present in the courtroom. In such
circumstances, an exception to the right to be present may be made, while at the same time
providing reasonable accommodation for the interest of victims. Congress, for example, has
specified a close-circuit broadcasting arrangement that may be applicable to some such
cases,” S.Rept. 108-191 at 41.

a rule of reason and by allowing federal – and possibly state – executive, legislative
and judicial branches to restrict victim’s rights in the face of substantial interests in
public safety or the administration of criminal justice or when faced with compelling
necessity. The history of the Amendment raises some question of the extent to which
indigent victims would be entitled to the assistance of appointed counsel to assert
their rights.
Contemporary Practices.
Most victims’ rights statutes and state constitutional amendments limit the
means available to enforce them. No jurisdiction seems to have outlawed the failure
to afford victims’ rights. The denial of a victim’s rights does not appear to expose
any official to criminal liability.235 Moreover, officials commonly enjoy immunity
from civil liability, either directly or by provisions that deny that the victim’s rights
give rise to a cause of action for their enforcement.236 Even without these no-cause-
of-action clauses, many victims’ rights edicts expressly preclude revisiting decisions
in the criminal justice system in order to correct a denial of victims’ rights or have
other provisions designed to prevent offenders from claiming the benefits of victims’
rights.237
In contrast, federal law exposes those who violate rights guaranteed by the
United States Constitution to both criminal and civil liability.238


235 At least initially, see, S.C.CONST. Art.I §24(B) (“The rights created in this section may
be subject to a writ of mandamus, to be issued by any justice of the Supreme Court or circuit
court judge to require compliance by any public employee, public agency, the State, or any
agency responsible for the enforcement of the rights and provisions of these services
contained in this section, and a wilful failure to comply with a writ of mandamus is
punishable as contempt”).
236 E.g., IDAHO CONST. Art.I, §22 (“Nothing in this section shall be . . . construed as
creating a cause of action for money damages, costs or attorney fees against the state, a
county, a municipality, any agency, instrumentality or person”); MD.CONST. Bill of Rights,
§47(b)(“Nothing in this article permits any cause of action for monetary damages for
violation of any of its provisions . . .”); 42 U.S.C. 10606(c)(“This section does not create a
cause of action or defense in favor of any person arising out the failure to accord to a victim
the rights enumerated in subsection (b) of this section”).
237 E.g., OHIO CONST. Art.I §10A (“This section does not confer upon any person a right
to appeal or modify any decision in a criminal proceeding”); ARIZ.CONST. Art.2,
§2.1(C)(“‘Victim’ means a person . . . except if the person is in custody for an offense or is
the accused”).
238 18 U.S.C. 242 (“Whoever, under color of any law . . . willfully subjects any person in
any State . . . to the deprivation of any rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States . . . shall be fined under this title or
imprisoned not more than ten years, or both . . .”); United States v. Lanier, 520 U.S. 259
(1997); 42 U.S.C. 1983 (“Every person who, under color of any statute . . . of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress, except that
(continued...)

Past Proposals.
Historically the enforcement sections of proposals to amend the Constitution
have had at least four features. First, they grant victims standing to assert their rights.
Second, they deny defendant’s prerogative of claiming the rights of victims. Third,
as discussed above, they grant Congress and/or the state legislatures the authority to
enact enforcement legislation. Fourth, they have limited the enforcement options
available to victims in the absence of legislation, and arguably limited the legislative
authority to craft enforcement mechanisms. They have included no-cause-of-action
clauses, clauses banning review of judicial decisions, and clauses limiting who might
call for enforcement.239 Proposals in the 106th Congress were similar to
predecessors, but opened the door for victims to revisit judicial determinations
concerning restitution and bail or other forms of conditional release:
Only the victim or the victim’s lawful representative shall have
standing to assert the rights established by this article. Nothing in this
article shall provide grounds to stay or continue any trial, reopen any
proceeding or invalidate any ruling, except with respect to conditional
release or restitution or to provide rights guaranteed by this article
without staying or continuing a trial. Nothing in this article shall give rise
to a claim for damages against the United States, a State, a political
subdivision, or a public official. H.J.Res. 64 (106th Cong.); S.J.Res. 3
(106th Cong.).
The Senate Judiciary Committee anticipated that allowing victims to challenge
decisions concerning bail, restitution, and future proceedings would pose no
unacceptable threat to the finality of criminal proceedings (unlike the prerogative to
an order to reopen, stay, or grant a continuance of a trial), S.Rept. 106-254 at 40. The
Department of Justice, however, objected to the prospect of a want of finality in


238 (...continued)
in any action brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. . .”).
239 E.g., S.J.Res. 65 (104th Cong.)(“The victim shall have standing to assert the rights
established by this article; however, nothing in this article shall provide grounds for the
victim to challenge a charging decision or a conviction, obtain a stay of trial, or compel a
new trial; nor shall anything in this article give rise to a claim for damages against the
United States, a State, a political subdivision, or a public official; nor shall anything in this
article provide grounds for the accused or convicted offender to obtain any form of relief”);
see also, H.J.Res. 71 (105th Cong.).

restitution cases,240 and some members of the Committee had earlier expressed
concern over the provision’s operation in bail cases.241
The Committee likewise anticipated that the no-damages clause would “prevent
the possibility that the proposal might be construed by courts as requiring the
appointment of counsel at State expense to assist victims, Cf., Gideon v. Wainwright,

372 U.S. 335 (1963)(requiring counsel for indigent criminal defendants),”


S.Rept.106-254 at 41.242 The Committee’s observation is significant because without
it the courts might easily reach the opposite conclusion. Without it, the evidence
seems to bespeak an intent to supply indigents with a legal representative at public
expense. The Committee’s citation to Gideon appears designed to point out that
without the limitation victims, like the accused, would be entitled to the assistance
of counsel during proceedings related to the crime.243 Without the observation, the
due process and equal protection clauses might seem to require the appointment of
counsel for indigent victims. Even the presence of the damage claim limitation alone
might have been considered insufficient, since attorneys’ fees are not ordinarily
considered an element of damages.244 Moreover, if an egalitarian right to
representation were embedded in the victims’ rights amendment it could be enforced
by invoking the injunctive or other equitable powers of the courts. This would be so


240 146 Cong.Rec. S2998 (daily ed. April 27, 2000)(letter from Ass’t Att’y Gen. Robert
Raben to Senate Majority Leader Trent Lott)(“The current language would appear to permit
a victim to reopen the restitution portion of a sentence for any reason at all, at any time, even
after a sentence has been served in full. The problems for law enforcement that could be
caused by this provision include, for example, the possibility that because of the limited
economic means of many defendants, restitution awarded to some victims at sentencing
might have to be decreased to accommodate subsequent claims by victims who come
forward after sentencing; the potential that defendants will litigate the reopening of a
restitution order without the reopening of other parts of the sentence; and the difficulty in
reaching and defending plea agreements in light of possible reopenings of and changes in
terms of restitution”).
241 S.Rept. 105-409 at 44 (additional views of Senator Hatch)(“serious reconsideration
should be given to whether it is wise to include in the amendment the right of victims to
unilaterally seek to overturn release decisions after the fact”).
242 Several Committee members questioned whether the language would be so construed,
Id. at 71 (minority views of Sens. Leahy, Kennedy, Kohl, and Feingold). A few state
constitutional amendments expressly disclaim any intention to create a right to appointed
counsel, e.g., WASH. CONST. Art.I §35.
243 Gideon held that the Fourteenth Amendment’s due process clause precludes treatment
of the Sixth Amendment right to the assistance of counsel as a white collar privilege
available only to men of means, “From the very beginning, our state and national
constitutions and laws have laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which every defendant stands
equal before the law. This noble ideal cannot be realized if the poor man changed with
crime has to face his accusers without a lawyer to assist him. . . . [For the] right to be heard
would be, in many cases, of little avail if it did not comprehend the right to be heard by
counsel,” 372 U.S. at 344-45.
244 Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); Bausch & Lomb
Inc. v. Utica Mutual Ins. Co., 355 Md. 566, 590, 735 A.2d 1081, 1094 (1999); Woollen v.
State, 256 Neb. 865, 887, 593 N.W.2d 729, 744 (1999).

even though the prospect of damages (with or without attorneys’ fees) had been
foreclosed. On the other hand, only a few of the states have seen the necessity to
explicitly announce that their comparable victims’ rights laws do not include the right
to appointed counsel.245
Recall the proposals of the 106th Congress:
Only the victim or the victim’s lawful representative shall have
standing to assert the rights established by this article. Nothing in this
article shall provide grounds to stay or continue any trial, reopen any
proceeding or invalidate any ruling, except with respect to conditional
release or restitution or to provide rights guaranteed by this article
without staying or continuing a trial. Nothing in this article shall give rise
to a claim for damages against the United States, a State, a political
subdivision, or a public official. H.J.Res. 64 (106th Cong.); S.J.Res. 3
(106th Cong.).
Amendment in the 108th Congress.
SECTION 3. Nothing in this article shall be construed to provide
grounds for a new trial or to authorize any claim for damages. Only the
victim or the victim’s lawful representative may assert the rights
established by this article, and no person accused of the crime may obtain
any form of relief hereunder.
The Amendment is clearly not the same as its antecedent in the 106th Congress.
It does continue to preclude new trials as an enforcement mechanism. It has replaced
a ban on causes of action for damages with a ban on claims for damages. Although
any right to recover damages against the United States is often referred to as a claim
rather than a cause of action, the courts seem unlikely to construe the change as one
which exposes all but the United States to an action for damages without a more
explicit indication of such an intent.246 The preservation of the damage ban may be
considered sufficient to bring with it the construction suggested for earlier bans to the


245 E.g., IDAHO CONST. art.I, §22 (“Nothing in this section shall . . . be construed as creating
a cause of action for money damages, costs or attorney fees against the state. . .”);
LA.CONST. art. I, §25 (“Nothing in this section shall be the basis for an award of costs or
attorney fees, for the appointment of counsel for a victim, or for any cause of action for
compensation . . .”).
246 The generality of the commentary thus far belies such an intent, see e.g., Senate Hearing
V; House Hearing V at 48 (statement of Steven J. Twist)(emphasis in the original) (“Nothing
in this article shall be construed to provide grounds for a new trial [or] to authorize any
claim for damages [–] The proposed language in no way limits the power to enforce the
rights granted. Rather it provides two narrowly tailored exceptions to the remedies that
might otherwise be available in an enforcement action. The language creates the limitations
as a matter of constitutional interpretation”); see also, Senate Hearing IV at 199-200; House
Hearing IV at 29. Note that some of the past resolutions barred “claim[s] for damages
against the United States, a state, a political subdivision, or a public officer or employee,”th
e.g., H.J.Res. 64 (106 Cong.).

effect that they contained within them a proscription against requiring the
appointment of counsel to assist victims to claim their rights.247
Gone from the Amendment is the previous repudiation of “grounds to stay or
continue any trial, reopen any proceeding or invalidate any ruling.” The Amendment
precludes new trials and damage claims, but on its face seems to allow the courts to
entertain victims’ petitions to enforce their rights in virtually any other context.248
At least one witness expressed reservations on this very ground.249 Other sections of
the Amendment, however, may alleviate these concerns.


247 S.Rept. 108-191 at 42 (“The limiting language in the provision also prevents the
possibility that the amendment might be construed by courts as requiring the appointment
of counsel at State expense to assist victims”). But see, S.Rept. 108-191 at 81 (minority
views)(“We fail to see how a limitation on the remedies available for government violations
of victims’ rights could even remotely affect a court’s determination regarding the
government’s duty to assist indigent victims in exercising those rights. This is especially
so in light of the majority’s acknowledgment that ‘every state is required under the sixth
amendment * * * to provide legal counsel to indigent defendants and that victims are
entitled to equal treatment”); Senate Hearing V; House Hearing V at 48 (statement of Steven
J. Twist)(“It is intended that both the word ‘victim’ and the phrase ‘victim’s lawful
representative’ will be the subject of statutory definition by the state legislature and the
Congress, within their respective jurisdictions. . . . In the absence of a statutory definition
the courts would be free . . . to use [their] power to appoint appropriate lawful
representatives”); see also Senate Hearing IV at 200; House Hearing IV at 29. Past
treatment of the phrase “lawful representative” suggests that some construe it to include
both representatives who speak on behalf of children or the incapacitated as well as
attorneys and other representatives for competent individual victims or perhaps for victims
as a class: “There will be circumstances in which victims find it desirable to have a
representative assert their rights or make statements on their behalf. This provision
recognizes the right of a competent victim to choose a representative to exercise his or her
rights . . . Other ‘lawful representatives’ will exist in the context of victims who are
deceased, are children, or are otherwise incapacitated,” S.Rept. 106-254 at 39; S.Rept. 105-

409 at 33.


248 Senate Hearing IV; House Hearing IV at 29 (statement of Steven J. Twist)(emphasis in
the original)(“The proposed language in no way limits the power to enforce the rights
granted. Rather it provides two narrowly tailored exceptions [new trial and damages] to the
remedies that might otherwise be available in an enforcement action”).
249 “[I]f a victim were improperly excluded from a courtroom during the consideration of
a motion in limine to exclude evidence, it would make more sense to allow the victim to
obtain appellate relief in the form of a prospective order to admit the victim to future
proceedings than a retrospective one that would vacate the evidentiary ruling so that the
matter could be re-argued in the victim’s presence. Moreover, it would plainly be contrary
to the interest of effective law enforcement if a victim could obtain a stay or continuance of
trial while the interlocutory appeal of [the exclusion] described above was pending. Theth
remedies language of S.J.Res. 3 [106 Cong.] inelegant as it was, would have prevented
such anomalous results. The more streamlined language of the current bill – by deleting the
prohibitions against staying or continuing trials, reopening proceedings, and invalidating
ruling[s] – would not,” Senate Hearing V; House Hearing V at 81(statement of James
Orenstein); see also, Senate Hearing IV at 125; House Hearing IV at 52.

Section 4 gives Congress the power to enact enforcement legislation.
Comparable powers have been said in the past to reside in the states.250 Section 2
may supply either an alternative or supplemental basis for limiting victim’s remedies
to retrospective relief. It bars legislation or judicial action in derogation of the rights
that the Amendment creates “except when and to the degree dictated by a substantial
interest in public safety or the administration of criminal justice, or by compelling
necessity.” Refusing to reopen completed judicial proceedings or to entertain
disruptive interlocutory appeals may be precisely the kind of exception in the name
of the substantial interests in the administration of criminal response that the section
envisions.
Moreover, Section 2 is often more circumspect in the rights it grants than were
some of the past proposals. Section 2 cabins the right to heard under a rule of
reasonableness (“the right[] . . . reasonably to be heard at . . . proceedings’), where
once no such express limitation could be found. Victims could once have anticipated
the promise of “right [] to an order of restitution” and of the opportunity to contest
after the fact any failure to honor that right, H.J.Res. 64/S.J.Res. 3 (106th Cong.). The
authors of the Amendment’s Section 2 decide instead to offer victims “adjudicative
decisions that duly consider [their] . . . interest in just and timely claims to
restitution.” The concern expressed by the Department of Justice in connection with
proposals in the 106th seems have been addressed by the change.
Section 3 of the Amendment has another modification of interest. It words
negatively the clause that once granted victim standing: “Only the victim or the
victim’s lawful representative may assert the rights established by this article.” This
has been characterized as a grant of victim standing,251 but it seems to say more.
First coupled with the clause that follows (“no person accused of the crime may
obtain any form of relief hereunder”), it appears to bar defendants (unless they are
also victims) from claiming the Amendment as either a sword or shield. Second, it
makes it difficult for the government to claim the Amendment on behalf of victims,
or at least on behalf of individual victims. Third, it implies a right to have a lawful
representative, and perhaps by operation of the equal protection clauses of the Fifth


250 “Congress’ power to ‘enforce’ established by this section carries limitations that are
important for [the] principles of federalism. The power to enforce is not the power to
define. As the Senate Judiciary Report noted, ‘This provision is similar to existing languageth
found in section 5 of the 14 Amendment to the Constitution. This provision will be
interpreted in similar fashion to allow Congress to enforce the rights, that is, to ensure that
the rights conveyed by the Amendment are in fact respected. At the same time, consistent
with the plain language of the provision, the federal government and the states will retain
their power to implement the Amendment. For example, the states will, subject to Supreme
Court review, flesh out the contours of the Amendment by providing definitions of victims
of crime and crimes of violence,’” Senate Hearing IV; House Hearing IV at 29 (statement
of Steven J. Twist), quoting S.Rept. 106-254 at 41; S.Rept. 105-409 at 35.
251 “With the adoption of this clause there will be no question that victims have standing
to assert the rights established,” Senate Hearing IV; House Hearings IV at 29 (statement of
Steven J. Twist).

and Fourteenth Amendments, for indigent victims to have a representative
appointed.252
The final clause in Section 3 declares that, “no person accused of the crime may
obtain any form of relief hereunder.” This seems to mean an individual may not
claim the rights of one whom he victimizes. The presence of the term “the crime,”
however, indicates that an individual may be entitled to the Amendment’s benefits
as victim of one crime notwithstanding the fact that he or she has been accused or
convicted of a different offense.
References to “a person accused of the crime” rather than “the offender” raises
the question of whether the ban (on an accused obtaining any form of relief under the
Amendment) disappears upon conviction when the offender is no longer the accused.
But a person accused of the crime and subsequently either convicted or acquitted may
still accurately be described as “the accused,” yet the individual may still accurately
be described as “the person accused.” The first is a statement of current status; the
second a statement of historical fact. Later courts, however, may conclude that the
distinction was not intended.
Effective Date
The Amendment goes into effect 180 days after ratification by the states. There
is some question whether the Amendment applies to all proceedings and decisions
occurring after the effective date or only to those involving crimes occurring after the
effective date.
Contemporary Practices.
Constitutional amendments become effective upon ratification by three-fourths
of the states, U.S.Const. Art. V. The Constitution does not mention any period of
time within which three-fourths of the states must ratify, but most proposed
amendments insist upon ratification within seven years. Like any other provision, the
constitutional provisions for ratification are subject to amendment. Proposed
amendments not infrequently include a delayed effective date in order to allow for
the passage of implementing legislation.
Past Proposals.
The first victims’ rights proposals called for ratification within seven years as
part of their enacting clauses.253 One made it expressly applicable to all proceedings


252 “There will be circumstances in which victims find it desirable to have a representative
assert their rights on their behalf. This provision recognizes the right of a competent victim
to choose a representative to exercise his or her rights, as provided by law,” S.Rept. 108-191
at 43; S.Rept. 106-254 at 39; S.Rept. 105-409 at 33.
253 H.J.Res. 173 (“Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled (two-thirds of each House concurring therein),
That the following article is proposed as an amendment to the Constitution of the United
(continued...)

subsequent to ratification rather than to proceedings relating to crimes committed
after ratification, S.J.Res. 65 (104th Cong.)(“The rights established by this article shall
be applicable to all proceedings occurring after the ratification of this article”). Each
successive proposal brought these two elements with it (seven year ratification and
application to proceedings rather than to crimes occurring after ratification). They
each added a third element, a 180 day delayed effective date.254
Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled (two-thirds of each House concurring therein),
That the following article is proposed as an amendment to the Constitution of
the United States, which shall be valid to all intends and purposes as part of the
constitution when ratified by the legislatures of three-fourths of the several
States, within seven years from the date of its submission by the Congress.
SECTION 4. This article shall take effect on the 180th day after ratification of
this article. The right to an order of restitution established by this article shall
not apply to crimes committed before the effective date of this article.
Amendment in the 108th Congress.
Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled (two-thirds of each House concurring therein),
That the following article is proposed as an amendment to the Constitution of
the United States, which shall be valid to all intends and purposes as part of the
constitution when ratified by the legislatures of three-fourths of the several


253 (...continued)
States, which shall be valid to all intends and purposes as part of the constitution when
ratified by the legislature of three-fourths of the several States within seven years after the
date of its submission for ratification”); H.J.Res. 174; S.J.Res. 52; S.J.Res. 65, each of the

104th Congress.


254 E.g., H.J.Res. 64 (106th Cong.)(“This article shall take effect on the 180th day after the
ratification of this article. The right to an order of restitution established by this article shall
not apply to crimes committed before the effective date of this article”). The Senate
Judiciary Committee’s somewhat cryptic explanation for the special treatment of restitution
orders points to the split of authority over whether the ex post facto clauses preclude
retroactive restitution adjustments, S.Rept. 105-409 at 36; S.Rept. 106-254 at 42 (“A few
courts have held that retroactive application of changes in standards governing restitution
violates the Constitution’s prohibition of ex post facto laws. E.g., United States v. Williams,
128 F.3d 1239 (8th Cir. 1997). The Committee agrees with those courts that have taken the
contrary view that, because restitution is not intended to punish offenders but to compensate
victims, ex post facto considerations are misplaced. E.g., United States v. Newman, [144
F.3d 531] (7th Cir. 1998). However, to avoid slowing down the conclusion of cases pending
at the time of the amendment’s ratification, the language on restitution orders was added”).
Without the added language, courts might have to stop to consider whether the victims’
rights Amendment superseded any ex post facto limitation on the application of the
Amendment’s restitution provisions. Some may find an equally weighty argument in the
fact that but for the limitation every pre-Amendment conviction in the nation would be ripe
for revisitation under section 2 of the Amendment. (“Nothing in this article shall provide
grounds to . . . reopen any proceeding or invalidate any ruling, except with respect to . . .
restitution. . .”).

States, and which shall take effect on the 180th day after ratification of this
article.255
SECTION 5. This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission to the States
by the Congress. This article shall take effect on the 180th day after the date of
its ratification.256
The House and Senate revisions of the Amendment differ only in that the House
includes its effective provision in the enacting clause and the Senate places it section
5. It seems a distinction without a difference. Substantively, the 180 day effective
date no longer carries the restitution order exception found in some of the earlier
proposals. The special exception may have been thought unnecessary after the
timeless and unqualified right to a restitution order was abandoned in favor of a right
to due consideration of timely and just restitution claims.
On the other hand, past proposals and their accompanying legislative history
made it clear that the Amendment applied to proceedings related to crimes occurring
after its effective date.257 Courts may take special note of the Amendment’s
departure from that history, for the change seems to suggest that it is the date of the
proceedings and not the date of the victimizing crime that is critical now. The Senate
Judiciary Committee apparently concurs for it goes out its way to document its
agreement with the courts that have found no ex post facto impediment to the
retroactive application of restitution liability changes.258 The difficulties associated
with notification rights of the victims of crimes committed decades ago could be
consi d erabl e.


255 The language underlined above appears only in H.J.Res. 10.
256 The language underlined above appears only in S.J.Res. 1.
257 “The Committee has included a 180-day ‘grace period’ for the amendment to allow all
affected jurisdictions ample opportunity to prepare to implement the amendment. After the
period has elapsed, the amendment will apply to all crimes and proceedings thereafter,”
S.Rept. 106-254 at 42; S.Rept.105-409 at 36.
258 S.Rept. 108-191, at 44 (“After the [180 day grace] period has elapsed, the amendment
will apply to all crimes and proceedings thereafter. A few courts have held that retroactive
application of changes in standards governing restitution violates the Constitution’sth
prohibition of ex post facto laws. See, e.g., United States v. Williams, 128 F.3d 1239 (8 Cir.

1997). The Committee agrees with those courts that have taken the contrary view that,


because restitution is not intended to punish offenders but to compensate victims, ex postth
facto considerations are misplaced. See, e.g., United States v. Newman, 144 F.3d 531 (7
Cir. 1998) ”). Of course, following ratification, courts of the Williams persuasion might
conclude that amendment eliminates any conflicting ex post facto impediments that might
otherwise exist.