LA 104TH CONGRESS 2D SESSION H. J. RES. 174 Proposing an amendment to the Constitution of the United States to protect the rights of victims of crime. IN THE HOUSE OF REPRESENTATIVES APRIL 22, 1996 Mr. HYDE introduced the following joint resolution; which was referred to the Committee on the Judiciary JOINT RESOLUTION Proposing an amendment to the Constitution of the United States to protect the rights of victims of crime. 1 Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled 3 (two-thirds of each House concurring therein), That the fol4 lowing article is proposed as an amendment to the Con5 stitution of the United States, which shall be valid to all 6 intents and purposes as part of the Constitution when 7 ratified by the legislatures of three-fourths of the several 8 States within seven years after the date of its submission 9 for ratification: 1 2 2 "ARTICLE "SECTION 1. To ensure that the victim is treated with 3 fairness, dignity, and respect, from the occurrence of a 4 crime of violence and other crimes as may be defined by 5 law pursuant to section 2 of this article, and throughout 6 the criminal, military, and juvenile justice processes, as 7 a matter of fundamental rights to liberty, justice, and due 8 process, the victim shall have the following rights: to be 9 informed of and given the opportunity to be present at 10 every proceeding in which those rights are extended to the 11 accused or convicted offender; to be heard at any proceed12 ing involving sentencing, including the right to object to 13 a previously negotiated plea, or a release from custody; 14 to be informed of any release or escape; and to a speedy 15 trial, a final conclusion free from unreasonable delay, full 16 restitution from the convicted offender, reasonable meas17 ures to protect the victim from violence or intimidation 18 by the accused or convicted offender, and notice of the 19 victim's rights. 20 "SECTION 2. The several States, with respect to a 21 proceeding in a State forum, and the Congress, with re22 spect to a proceeding in a United States forum, shall have 23 the power to implement further this article by appropriate 24 legislation.". •HJ 174 IH Mr. HYDE. Because of the large number of witnesses we have today, other members who may have statements I request that they put them in the record or give them during their question time. Our congressional panel, Senators Kyl and Senator Feinstein and Congressman Royce have other commitments, so I do request that members refrain from questioning the congressional panel. Finally, I want to announce that Associate Attorney General Schmidt from the Justice Department is out of town this morning, could not be back until this afternoon. For that reason, we will hear the testimony of the first three panels. When that is completed, we will adjourn until 3 p.m., at which time we will reconvene to hear from Mr. Schmidt. I am now pleased to recognize Senator Kyl. STATEMENT OF HON. JON KYL, A SENATOR IN CONGRESS FROM THE STATE OF ARIZONA Mr. KYL. Thank you, Mr. Chairman. Thank you very much for holding this hearing. I also want to thank you for testifying before the Senate Judiciary Committee in April with respect to this same matter. I can say I think that there is almost nothing that this Congress could do that would be more important before we finish our session than adopting a constitutional amendment to protect crime victims' rights. So I very much appreciate your moving this process forward in the House of Representatives. Mr. Chairman, the scales of justice are imbalanced. There are at least eight specifically enumerated rights protecting rights of the accused in our Federal Constitution. There are none specifying protections for victims. This imbalance has created a situation which needs to be rectified. Let me site just one case to illustrate. In my own State of Arizona, Patricia Pollard was brutally attacked, left by the side of the road to die. Her attacker was found, was convicted. But 10 years short of fulfilling his minimum sentence, he was paroled. His victim, Patricia Pollard, was given no notice. Obviously, if there had been notice to her and an opportunity to be heard, she would have warned the parole officials and the judge about his danger to others and to her. But because he was a bad actor, not long after he was paroled, he was back under arrest again, this time for narcotics violations. But again, he was to be released. The parole board had considered a release again, prior to the time he served his minimum sentence, and again without notice to her. This time, however, the Arizona Constitution had provided, in the interim, an opportunity for victims to be heard at such proceedings. Someone found out about it, even though no notice was given to Patricia Pollard. She was ultimately given the opportunity to persuade the parole board not to parole her assailant. As a result, he remained in jail. I asked her about this. I said, "Did you fear for your life?" She said, "More importantly, I feared what he would do to others. I would not have been able to live with myself if I had not gone down to the parole board and told them what he did to me and what he might do to others." As a result of that, he stayed in jail. Mr. Chairman, we in this country have a long history of protecting the innocent. In fact, we're willing to err to far on the side of protecting the innocent, we say we're willing to let nine guilty peo ple go free so that one innocent person is not convicted. Yet we do not protect the most innocent in society, those who we have not been able to protect who have been victimized, and who then find themselves victimized a second time in our criminal justice system. Now our constitutional amendment provides the protections that you identified in your opening statement. One of the first questions is, why can't this be done by State statute or constitution? I have two responses to that. The first is simply logical. Would we today say that it is perfectly adequate to provide for the protections of free speech, free press, peaceable assembly, or specific rights for victims, to a lawyer, to a public trial, to due process, would we be satisfied to merely put those in statute today? I don't think any of us here would be willing to do that, because we know they are fundamental rights. Well the same thing is true about the rights of victims. If we believe they are fundamental, then there is only one place to put them. That is in the same document at the same level that we have placed these rights of defendants. The second answer to the question is specific case law. We have some history fortunately, of dealing with the 20 States that have either statutes or constitutional provisions protecting rights of victims. In every case where there is a conflict between the right of the defendant, which is embodied in the supreme law of the land, the Federal Constitution, and these protections for victims, naturally the Federal Constitution wins. The victims rights are trumped. I will submit for the record a variety of cases. One of them is Romley v. Superior Court in my own State of Arizona, where the court specifically held that the defendant's constitutional right to due process conflicts with the victims bill of rights, that due process is a superior right. Being a part of the U.S. Constitution, it prevails over any provision in a State constitution. The same thing was found in Johnson v. Texas Department of Criminal Justice. A district court decision of 1995 in the State of Texas. There are other decisions from Florida, from Colorado, from New Jersey, and other States. Mr. Chairman, the bottom line is that providing these protections only in statute or State constitution does not provide equal and adequate protection for the rights of victims. Therefore, the following rights should be placed in the U.S. Constitution, the right to be informed of proceedings, to be heard, for a victim to be notified of the offender's release or escape, to have a final disposition free rom unreasonable delay, to have the right of full restitution, the ight to reasonable conditions of confinement or release to protect he victim from violence or intimidation, and the right of victims o be notified of their rights so that they can properly be exercised. Again, Mr. Chairman, I very much appreciate your holding this hearing, and would just conclude with one final sentence. The chairman introduced two different versions here in the House. Senator Feinstein and I introduced one version in the Senate. Since then, you and we and the Justice Department on behalf of the President, have been working to try to refine the language so that the version we finally bring to both bodies will be a consensus version. We are very far along on that path. We don't see any show stoppers. There are minor language changes we are still working on. But we believe that by continuing to refine the language, by the time both you and the House and we in the Senate are ready to proceed, we will have a consensus constitutional proposal that all of us can agree upon. [The prepared statement of Mr. Kyl follows:] PREPARED STATEMENT OF HON. JON KYL, A SENATOR IN CONGRESS FROM THE STATE OF ARIZONA INTRODUCTION At the outset, I would like to thank the distinguished chairman of the House Judiciary Committee, Henry Hyde, for holding this hearing on the Victims' Bill of Rights. In April, Chairman Hyde provided very useful testimony on the amendment before the Senate Judiciary Committee. I would also like to thank Senator Dianne Feinstein for her leadership in cosponsoring and championing the amendment. The amendment is picking up momentum in large part because of her efforts to advance the cause of victims' rights. Much has happened in our efforts to pass the Victims' Bill of Rights since the Senate held hearings. President Clinton and Bob Dole have both endorsed a victims' rights amendment. Although we don't have many legislative days left in this session of Congress, the support of the President and Mr. Dole puts the amendment on the fast track, and improves the chances of a strong bi-partisan vote on it in this legislative session. Patricia Pollard Permit me to recite just one example of why I believe a constitutional right to protect crime victims is so important. Consider the case of Patricia Pollard-a woman from my home state of Arizona. In July of 1974, on a road just outside of Flagstaff, Arizona, Patricia Pollard was silenced-first by an attacker, and then by the judicial system. Eric Mageary used the jagged edge of a ripped beer can to inflict deep slash wounds in her body. He broke her ribs and her jaw. He choked her into unconsciousness and left her for dead by the side of the road. Patricia survived. Mageary was convicted and sent to prison Ten years short of serving his minimum sentence, he was paroled. No notice was given to Patricia. If given the opportunity, Patricia would have wanted to tell the judge about the crime, about how dangerous Mageary was, and how a long prison sentence was needed to protect the community from this vicious criminal. But the law gave Patricia no right to be heard, and society paid for its silencing of her. Mageary's parole was soon revoked for serious narcotics violations, and he was back in prison. In 1990, the people of Arizona amended their state constitution to add a Victims' Bill of Rights, which established the right of victims to be informed, present, and heard at every critical stage in their case. Incredibly, in 1993, in direct violation of Patricia's new constitutional rights, the parole board voted to release Mageary-again without hearing from Patricia. But this time there was a remedy for this injustice. An action was filed to stop the release and force the board to hold another hearing in which Patricia's rights would be protected. The Arizona Court of Appeals acted swiftly and stopped the release. The second time around, after the board took the time to hear directly about the horrible nature of the crime, they voted for public safety and for Patricia, and kept Mageary behind bars. Without constitutional rights for Patricia, the safety of the community would have been jeopardized again. Constitutional rights restored Patricia's voice. Not all Americans have these rights, and even those that exist are not protected by the supreme law of the land, the U. S. Constitution. That is why we have introduced a Victims' Bill of Rights to the U. S. Constitution to extend to victims throughout the country a threshold of basic fairness. Victims must be given a voice -not a veto, but a real opportunity to stand and speak for justice and the law-abiding in our communities. Need to protect victims' rights—scales of justice imbalanced The strong bipartisan support for the amendment makes clear that the Victims' Bill of Rights is not a partisan issue, or some election-year gimmick. The idea stems from a 1982 President's Task Force on Victims of Crime, which concluded that "the criminal justice system has lost its essential balance," and that constitutional protection of victims' rights was the only way to guarantee fair treatment of crime vic |