July 17, 2003 The Honorable Senator Orrin Hatch, Chairman Senate Committee on the Judiciary 506 Hart Senate Office Building Washington, D.C. 20510 The Honorable Senator Patrick Leahy, Ranking Member Senate Committee on the Judiciary 217 Russell Senate Office Building Washington, D.C. 20510 Dear Senators Hatch and Leahy: We write in opposition to S.J. Res. 1, the proposed Victims’ Rights Amendment to the Constitution of the United States. We are law professors and practitioners who oppose such an amendment. Although we commend and share the desire to assist crime victims, amending our fundamental charter is unnecessary to do so. Indeed, ultimately the Amendment could be counter-productive, because it could hinder effective prosecutions of crime and place a great burden on state and federal law enforcement agencies and courts. The Constitution should be amended only when there is a pressing need that cannot be addressed in any other manner. There is no pressing need for a victims’ rights amendment, as virtually every right provided victims by the amendment can be or is already protected by state and federal law. No reason exists to believe that victims of crime cannot adequately protect their interests through the democratic political process such that a constitutional amendment is necessary to protect them. Every state has a constitutional amendment or statutory scheme protecting crime victims’ rights, including many of those contained in Section 2 of S.J. Res. 1. For example, restitution for crime victims is required by the Antiterrorism and Effective Death Penalty Act of 1996 and under the laws of virtually every state. Victim impact statements have become a routine part of federal and state sentencing. Victim safety as a consideration in pretrial release already exists under federal and state law. As part of a continuing process, state and Federal law have responded to victim concerns and refined laws. Section 2 of the Amendment provides: 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. Much of this language is vague. Further, the Amendment could lead to burdens on courts and prosecutors and interfere with the constitutional rights of defendants. The right to adjudicative decisions regarding safety, delay, and restitution goes beyond a right to be present and heard at public proceedings. This adjudicative decisions provision appears to create a right to special hearings on these issues, separate from other proceedings. It also appears to require additional judicial orders and decisions. This could result in separate substantive proceedings, burdening an already burdened court system. The language of Section 2's adjudicative decisions clause is broad and vague, leading to uncertainty about the application of the rights involved. "Due consideration of the victim's safety” seems to require a judicial decision on any issue that arguably might affect the victim's safety. It may involve the courts in monitoring the choices of police and corrections officers in the interest of safety. It could lead to standardless determinations of an accused's dangerousness throughout the process as well. Under Section 2 as written, a victim could demand a special judicial hearing whenever the victim asserted an interest in "avoiding unreasonable delay." This section could be used to deny defendants needed time to gather and present essential evidence in order to demonstrate their innocence of the crime charged. It also could impair a prosecutor's ability to develop the evidence necessary to prove guilt beyond a reasonable doubt. The right of victims to be reasonably heard at plea proceedings could hamper prosecutorial efforts. How much weight judges must give to a victim's objection to a plea bargain is uncertain, because the Amendment is not clear whether the state must demonstrate a “compelling” or “substantial” interest in the bargain and how a judge should evaluate valid prosecutorial concerns. Often prosecutors enter into plea agreements based on strategic choices to gain the cooperation of one defendant to enhance the likelihood of convicting others, or based on concerns about allocating scarce prosecutorial resources, or based on concerns about the weaknesses of the evidence against the accused. Even a small increase in trials because of victim objections would impose heavy burdens on prosecutor’s offices and the courts. The right to be heard might well create a right to counsel in order for the victim to be effectively heard. Some victim advocates already support a right to court-appointed counsel for victims. Courts, in interpreting the amendment, could determine that the right to counsel includes the right to state-provided counsel for those victims without the ability to pay. There are serious dangers in amending the Constitution in the manner provided by S.J. Res. 1. The Framers of the Constitution were aware of the enormous power of Government to deprive a person of liberty or life in a criminal prosecution. As a result, the Constitution and the Bill of Rights accord criminal defendants numerous protections--protections that are among the most precious and essential rights we have. While S.J. Res. 1 provides in Section 1 that "The rights of victims of crime, being capable of protection without denying the constitutional rights of those accused of victimizing them are hereby established . . ." this language does not explicitly protect defendant's rights from abridgment under the Amendment. Indeed, the last sentence of Section 2 states that victim's rights "shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of justice, or by a compelling state interest." At best, this language suggests that courts would have to engage in a case-by-case balancing of the rights of the accused and the rights of the victim. Section 3 explicitly forbids courts or Congress to provide money damages to victims for violations of their rights. The creation of a constitutional right without a meaningful remedy for many contradicts one of the very principles of justice -- that for violation of a right there must be a remedy. Injunctive relief for denial of rights, while possible under the amendment, may often provide an inadequate remedy, and bringing injunctive actions against courts and prosecutors would create additional uncertainty in the criminal justice process. Section 3 of the Amendment not only subjects state criminal proceedings to congressional oversight, but also creates new burdens on federal courts to interpret and apply the Amendment. Terms used in Section 2, such as duly consider . . .safety, unreasonable delay, and just and timely restitution will need judicial interpretation, as they are broad and vague. The term "victim of violent crime" remains undefined, as does the term "lawful representative." Family members, friends, and others who know a victim of a violent attack or murder may claim injury and invoke a constitutional right to intervene and be heard. All crime victims deserve consideration and respect, but the Amendment only extends to victims of "violent crime. Victims of economic crimes, no matter how seriously they are damaged by the crime, would have no constitutional rights. Concern and respect for crime victims have led to many laws on their behalf across the nation. Continuing the process should be left to legislatures, not this constitutional amendment. We respectfully urge the rejection of the proposed Victims’ Rights Amendment as unnecessary and damaging to our Constitution. Sincerely,