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Ulr Cassell Reply to Critics of Victims Rights Amendment 1999

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Copyright (c) 1999 Utah Law Review Society
Utah Law Review
1999 Utah L. Rev. 479
LENGTH: 29800 words
SYMPOSIUM: Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment
NAME: Paul G. Cassell *
* Professor of Law, Univ. of Utah College of Law (; Executive Board of the
National Victims Constitutional Amendment Network. A special note of thanks to the editors of the Utah Law
Review for organizing this Symposium and to Susan Bandes, Doug Beloof, Lynne Henderson, Bob Mosteller,
Bill Pizzi, and Steve Twist for their energetic participation. This article was supported by the University of Utah
College of Law Research Fund and the University of Utah Research Committee. I appreciate suggestions and
other assistance from Patricia Cassell, Karan Bhatia, Reg Brown, Edna Erez, Stephen Garvey, Edith Greene,
Paul Gewirtz, Joe Hoffman, Bob Keiter, Scott Matheson, John Stein, Marlene Young, and the Symposium
participants. With apologies for borrowing a title from BRYAN BURROUGH & JOHN HELYAR,
... The Victims' Rights Amendment will likely be the next amendment to our Constitution. ... Read an actual victim
impact statement from a homicide case all the way through and see if you truly learn nothing new about the enormity of
the loss caused by a homicide. ... Bandes appears to believe that a sentence imposed following a victim impact
statement rests on unjustified prejudice; alternatively, one might conclude simply that the sentence rests on a fuller
understanding of all of the murder's harmful ramifications. ... This interpretation meshes with empirical studies in
noncapital cases suggesting that, if a victim impact statement makes a difference in punishment, the description of the
harm sustained by the victims is the crucial factor. ... A constitutional amendment, reflecting the instructions of the
nation to its criminal justice system, is perfectly designed to attack these problems and develop a new legal culture
supportive of victims. ... That man, incidentally, is choosing to watch the trial and to forfeit his right to make a victim
impact statement. ... For all practical purposes, the treatment of crime victims' rights in federal court in Utah, Colorado,
Kansas, New Mexico, Oklahoma, and Wyoming has been remitted to the unreviewable discretion of individual federal
district court judges. ...
The Victims' Rights Amendment will likely be the next amendment to our Constitution. Currently pending before
Congress, the Amendment establishes a bill of rights for crime victims, protecting their basic interests in the criminal

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justice process. Under the Amendment, victims of violent crimes would have the rights to receive notice about court
hearings, to attend those hearings, to speak at appropriate points in the process, to receive notification if an offender is
released or escapes, to obtain an order of restitution from a convicted offender, and to require the court's consideration
of their interest in a trial free from unreasonable delay. n1 The Amendment has attracted considerable bipartisan
support, as evidenced by its endorsement by the President n2 and strong approval in the Senate Judiciary Committee at
the end of the 104th Congress. n3 Based on this vote, the widely respected Congressional Quarterly has identified the
Amendment as perhaps the [*480] "pending constitutional amendment with the best chance of being approved by
Congress in the foreseeable future." n4
As the Victims' Rights Amendment has moved closer to passage, defenders of the old order have manned n5 the
barricades against its adoption. In Congress, the popular press, and the law reviews, they have raised a series of
philosophical and practical objections to protecting victims' rights in the Constitution. These objections run the gamut,
from the structural (the Amendment will change "basic principles that have been followed throughout American
history" n6), to the pragmatic ("it will lay waste to the criminal justice system" n7), to the aesthetic (it will "trivialize"
the Constitution n8). In some sense, such objections are predictable. The prosecutors, defense attorneys, and judges
who labor daily in the criminal justice vineyards have long struggled to hold the balance true between the State and the
defendant. To suddenly find third parties--rather, third persons who are not even parties--threatening to storm the
courthouse gates provokes, at least from some, an understandable defensiveness. If nothing else, victims promise to
complicate life in the criminal justice system. But more fundamentally, if these victims' pleas for recognition are
legitimate, what does that say about how the system has treated them for so many years?
Others in this Symposium have touched on overarching questions presented by the victims' challenge to the
structure of our criminal justice [*481] system. Professor Douglas Beloof's memorable paper persuasively
demonstrates that a full appreciation of the rights of crime victims requires a "third model" that does not fit comfortably
with the existing prosecution- and defendant-oriented paradigms generally used to understand the criminal process. n9
Indeed, as Professor William Pizzi's thought-provoking essay suggests, the very notion of victims having some role to
play in the system is mind-boggling to professionals in the system who cannot even envision where a victim might sit in
the courtroom. n10 Similar themes come to mind in reading Professor Susan Bandes's article, which skillfully describes
the panoply of standing barriers that have been raised to prevent victims from obtaining admission to criminal
proceedings. n11 Furthermore, Stephen Twist's insightful essay identifies the ways in which the system's zeal in
protecting defense and prosecution interests has, in some ways, sown the seeds of its own destruction. n12
My aim here is not to visit such intriguing general issues about victims in the criminal justice process, but rather to
focus on how victims' rights would operate under one concrete proposal--the Victims' Rights Amendment. In particular,
this Article analyzes the objections that the Amendment's opponents have raised. It should come as no great surprise
that claims the Amendment simultaneously would "change basic principles that have been followed throughout
American history," "lay waste to the criminal justice system," and--for good measure--"trivialize" the Constitution are
not all true. This Article attempts to demonstrate that, in fact, none of these contradictory assertions is supported. A
fair-minded look at the Amendment confirms that it will not "lay waste" to the system, but instead will build upon and
improve it--retaining protection for the legitimate interests of prosecutors and defendants, while adding recognition of
equally powerful interests of crime victims.
The objections to the Victims' Rights Amendment conveniently divide into three categories, which this Article
analyzes in turn. Part I reviews normative objections to the Amendment--that is, objections to the desirability of the
rights. The Part begins by reviewing the defendant-oriented objections leveled against a few of the rights, specifically
the victim's right to be heard at sentencing, the victim's right to be present at trial, and the [*482] victim's right to a
trial free from unreasonable delay. These objections lack merit. Part I concludes by refuting the prosecution-oriented
objections to victims' rights, which revolve primarily around alleged excessive consumption of scarce criminal justice
resources. These claims, however, are inconsistent with the available empirical evidence on the cost of victims' rights
regimes in the states.

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Next, Part II considers what might be styled as justification challenges--challenges that a victims' amendment is
unjustified because victims already receive rights under the existing amalgam of state constitutional and statutory
provisions. This claim of an "unnecessary" amendment, as advanced most prominently and capably in law review
articles by Professor Robert Mosteller here and elsewhere, n13 misconceives the undeniable practical problems that
victims face in attempting to secure their rights without federal constitutional protection.
Part III then turns to structural objections to the Amendment--claims that victims' rights are not properly
constitutionalized, as advanced skillfully by Professor Henderson in this Symposium n14 and by others elsewhere.
Contrary to this view, protection of the rights of citizens to participate in governmental processes is a subject long
recognized as an appropriate one for a constitutional amendment. Moreover, constitutional protection for victims also
can be crafted in ways that are sufficiently flexible to accommodate varying circumstances and varying criminal justice
systems from state to state.
Finally, the Article concludes by examining the nature of the opposition to the Victims' Rights Amendment.
Victims are not barbarians seeking to dismantle the pillars of wisdom from previous ages. Rather, they are citizens
whose legitimate interests require recognition in any proper system of criminal justice. The Victims' Rights Amendment
therefore deserves our full support.
The most basic level at which the Victims' Rights Amendment could be disputed is the normative one: victims'
rights are simply undesirable. Few of the objections to the Amendment, however, start from this premise. Instead,
[*483] the vast bulk of the opponents flatly concede the need for victim participation in the criminal justice system. For
example, the senators on the Senate Judiciary Committee who dissented from supporting the Amendment n15 began by
agreeing that "the treatment of crime victims certainly is of central importance to a civilized society, and we must never
simply 'pass by on the other side.'" n16 Additionally, various law professors who sent a letter to Congress opposing the
Amendment similarly begin by explaining that they "commend and share the desire to help crime victims" and that
"crime victims deserve protection." n17 Further, Professor Mosteller agrees that "every sensible person can and should
support victims of crime" and that the idea of "guaranteeing participatory rights to victims in judicial proceedings . . . is
salutary." n18
The principal critics of the Amendment agree not only with the general sentiments of victims' rights advocates but
also with many of their specific policy proposals. Striking evidence of this agreement comes from the federal statute
proposed by the dissenting senators, which would extend to victims in the federal system most of the same rights
provided in the Amendment. n19 Other critics, too, have suggested protection for victims in statutory rather than
constitutional terms. n20 In parsing through the relevant congressional hearings and academic literature, many of the
important provisions of the Amendment appear to garner wide acceptance. Few disagree, for example, that victims of
violent crime should receive notice that the offender has escaped from custody and should receive restitution from an
offender. What is most striking, then, about debates over the Amendment is not the scattered points of disagreement, but
rather the abundant points of agreement. n21 This harmony suggests that the Amendment satisfies a basic requirement
for a constitutional amendment--that it reflect values widely shared throughout [*484] society. There is, to be sure,
normative disagreement about some of the proposed provisions in the Amendment, disagreements analyzed below. But
the natural tendency to focus on points of conflict should not obscure the substantial points of widespread agreement.
While there exists near consensus on the desirability of many of the values reflected in the Amendment, a few
rights are disputed on grounds that can be conveniently divided into two groups. Some rights are challenged as unfairly
harming defendants' interests in the process, others as harming interests of prosecutors. That the Amendment has drawn
fire from some on both sides might suggest that it has things about right in the middle. Contrary to these criticisms,
however, the Amendment does not harm the legitimate interests of either side.
A. Defendant-Oriented Challenges to Victims' Rights

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Perhaps the most frequently repeated claim against the Amendment is that it would harm defendants' rights. Often
this claim is made in general terms, relying on little more than the reflexive view that anything good for victims must be
bad for defendants. But, as the general consensus favoring victims' rights suggests, rights for victims need not come at
the expense of defendants. Strong supporters of defendants' rights agree. Professor Laurence Tribe, for example, has
concluded that the proposed Amendment is "a carefully crafted measure, adding victims' rights that can coexist side by
side with defendants'." n22 Similarly, Senator Joseph Biden reports: "I am now convinced that no potential conflict
exists between the victims' rights enumerated in [the Amendment] and any existing constitutional right afforded to
defendants. . . ." n23 A recent summary of the available research on the purported conflict of rights supports these
views, finding that victims' rights do not harm defendants:
Studies show that there "is virtually no evidence that the victims' participation is at the defendant's
expense." For example, one study, with data from thirty-six states, found that victim-impact statutes
resulted in only a negligible effect on sentence type and length. Moreover, judges interviewed in states
with legislation granting rights to the crime victim indicated that the balance was not improperly tipped
in favor of the victim. One article studying victim participation in plea bargaining found that [*485]
such involvement helped victims "without any significant detrimental impact to the interests of
prosecutors and defendants." Another national study in states with victims' reforms concluded that:
"victim satisfaction with prosecutors and the criminal justice system was increased without infringing on
the defendant's rights." n24
Given these empirical findings, it should come as no surprise that claims that the Amendment would injure
defendants rest on a predicted parade of horribles, not any real-world experience. Yet this experience suggests that the
parade will never materialize, particularly given the redrafting of the proposed amendment to narrow some of the rights
it extends. n25 A careful [*486] examination of the most-often-advanced claims of conflict with defendants'
legitimate interests reveals that any purported conflict is illusory. n26
1. The Right to Be Heard
Some opponents of the Amendment object that the victim's right to be heard will interfere with a defendant's efforts
to mount a defense. At least some of these objections refute straw men, not the arguments for the Amendment. For
example, to prove that a victim's right to be heard is undesirable, objectors sometimes claim (as was done in the Senate
Judiciary Committee minority report) that "the proposed Amendment gives victims [a] constitutional right to be heard,
if present, and to submit a statement at all stages of the criminal proceeding." n27 From this premise, the objectors then
postulate that the Amendment would make it "much more difficult for judges to limit testimony by victims at trial" and
elsewhere to the detriment of defendants. n28 This constitutes an almost breathtaking misapprehension of the scope of
the rights at issue. Far from extending victims the right to be heard at "all" stages of a criminal case including the trial,
the Amendment explicitly limits the right to public "proceedings to determine a conditional release from custody, an
acceptance of a negotiated plea, or a sentence." n29 At these three kinds of hearings--bail, plea, and sentencing--victims
have compelling reasons to be heard and can be heard without adversely affecting the defendant's rights.
Proof that victims can properly be heard at these points comes from what appears to be a substantial inconsistency
by the dissenting senators. While criticizing the right to be heard in the Amendment, these senators simultaneously
sponsored federal legislation to extend to victims in the federal [*487] system precisely the same rights. n30 They
urged their colleagues to pass their statute in lieu of the Amendment because "our bill provides the very same rights to
victims as the proposed constitutional amendment." n31 In defending their bill, they saw no difficulty in giving victims
a chance to be heard, n32 a right that already exists in many states. n33
A much more careful critique of the victim's right to be heard is found in a recent prominent article by Professor
Susan Bandes. n34 Like most other opponents of the Amendment, she concentrates her intellectual fire on the victim's
right to be heard at sentencing, arguing that victim impact statements are inappropriate narratives to introduce in capital
sentencing proceedings. n35 While rich in insights about the implications of "outsider narratives," the article provides

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no general basis for objecting to a victim's right to be heard at sentencing. Her criticism of victim impact statements is
limited to capital cases, a tiny fraction of all criminal trials. n36
[*488] Professor Bandes's objection is important to consider carefully because it presents one of the most
thoughtfully developed cases against victim impact statements. n37 Her case, however, is ultimately unpersuasive. She
agrees that capital sentencing decisions ought to rest, at least in part, on the harm caused by murderers. n38 She
explains that, in determining which murderers should receive the death penalty, society's "gaze ought to be carefully
fixed on the harm they have caused and their moral culpability for that harm." n39 Bandes then contends that victim
impact statements divert sentencers from that inquiry to "irrelevant fortuities" about the victims and their families. n40
But in moving on to this point, she apparently assumes that a judge or jury can comprehend the full harm caused by a
murder without hearing testimony from the surviving family members. That assumption is simply unsupportable. Any
reader who disagrees with me should take a simple test. Read an actual victim impact statement from a homicide case
all the way through and see if you truly learn nothing new about the enormity of the loss caused by a homicide. Sadly,
the reader will have no shortage of such victim impact statements to choose from. Actual impact statements from court
proceedings are accessible in various places. n41 Other examples can be found in moving accounts written by family
members who have lost a loved one to a murder. A powerful example is the collection of statements from families
devastated by the Oklahoma City bombing collected in Marsha Kight's affecting Forever Changed: Remembering
Oklahoma City, April 19, 1995. n42 Kight's compelling book is not unique, as equally powerful accounts [*489] from
the family of Ron Goldman, n43 children of Oklahoma City, n44 Alice Kaminsky, n45 George Lardner Jr., n46
Dorris Porch and Rebecca Easley, n47 Mike Reynolds, n48 Deborah Spungen, n49 John Walsh, n50 and Marvin
Weinstein n51 make all too painfully clear. Intimate third-party accounts offer similar insights about the generally
unrecognized, yet far-ranging consequences of homicide. n52
Professor Bandes acknowledges the power of hearing from victims' families. Indeed, in a commendable willingness
to present victim statements with all their force, she begins her article by quoting from the victim impact statement at
issue in Payne v. Tennessee, n53 a statement from Mary Zvolanek about her daughter's and granddaughter's deaths and
their effect on her three-year-old grandson:
He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his
sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my
Lacie. And I tell him yes. He says, I'm worried about my Lacie. n54
[*490] Bandes quite accurately observes that the statement is "heartbreaking" and "on paper, it is nearly unbearable to
read." n55 She goes on to argue that such statements are "prejudicial and inflammatory" and "overwhelm the jury with
feelings of outrage." n56 In my judgment, Bandes fails here to distinguish sufficiently between prejudice and unfair
prejudice from a victim's statement. It is a commonplace of evidence law that a litigant is not entitled to exclude
harmful evidence, but only unfairly harmful evidence. n57 Bandes appears to believe that a sentence imposed
following a victim impact statement rests on unjustified prejudice; alternatively, one might conclude simply that the
sentence rests on a fuller understanding of all of the murder's harmful ramifications. Why is it "heartbreaking" and
"nearly unbearable to read" about what it is like for a three-year-old to witness the murder of his mother and his
two-year-old sister? The answer, judging from why my heart broke as I read the passage, is that we can no longer treat
the crime as some abstract event. In other words, we begin to realize the nearly unbearable heartbreak--that is, the actual
and total harm--that the murderer inflicted. n58 Such a realization undoubtedly will hamper a defendant's efforts to
escape a capital sentence. But given that loss is a proper consideration for the jury, the statement is not unfairly
detrimental to the defendant. Indeed, to conceal such evidence from the jury may leave them with a distorted,
minimized view of the impact of the crime. n59 Victim impact statements are thus easily justified because they provide
the jury with a full picture of the murder's consequences. n60
[*491] Bandes also contends that impact statements "may completely block" the ability of the jury to consider
mitigation evidence. n61 It is hard to assess this essentially empirical assertion, because Bandes does not present direct
empirical support. n62 Clearly many juries decline to return death sentences even when presented with powerful victim

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impact testimony, with Terry Nichols's life sentence for conspiring to set the Oklahoma City bomb a prominent
example. Indeed, one recent empirical study of decisions from jurors who actually served in capital cases found that
facts about adult victims "made little difference" in death penalty decisions. n63 A case might be [*492] crafted from
the available national data that Supreme Court decisions on victim impact testimony did, at the margin, alter some
cases. It is arguable that the number of death sentences imposed in this country fell after the Supreme Court prohibited
use of victim impact statements in 1987 n64 and then rose when the Court reversed itself a few years later. n65 As
discussed in greater length in Appendix B, n66 however, this conclusion is far from clear and, in any event, the effect
on likelihood of a death sentence would be, at most, marginal.
The empirical evidence in noncapital cases also finds little effect on sentence severity. For example, a study in
California found that "the right to allocution at sentencing has had little net effect . . . on sentences in general." n67 A
study in New York similarly reported "no support for those who argue against [victim impact] statements on the
grounds that their use places defendants in jeopardy." n68 A careful scholar recently reviewed comprehensively all of
the available evidence in this country and elsewhere, and concluded that "sentence severity has not increased following
the passage of [victim impact] legislation." n69 It is thus unclear why we should credit [*493] Bandes's assertion that
victim impact statements seriously hamper the defense of capital defendants.
Even if such an impact on capital sentences were proven, it would be susceptible to the reasonable interpretation
that victim testimony did not "block" jury understanding, but rather presented enhanced information about the full
horror of the murder or put in context mitigating evidence of the defendant. Professor David Friedman has suggested
this conclusion, observing that "if the legal rules present the defendant as a living, breathing human being with loving
parents weeping on the witness stand, while presenting the victim as a shadowy abstraction, the result will be to
overstate, in the minds of the jury, the cost of capital punishment relative to the benefit." n70 Correcting this
misimpression is not distorting the decision-making process, but eliminating a distortion that would otherwise occur.
n71 This interpretation meshes with empirical studies in noncapital cases suggesting that, if a victim impact statement
makes a difference in punishment, the description of the harm sustained by the victims is the crucial factor. n72 The
studies thus indicate that the general tendency of victim impact evidence is to enhance sentence accuracy and
proportionality rather than increase sentence punitiveness. n73
[*494] Finally, Bandes and other critics argue that victim impact statements result in unequal justice. n74 Justice
Powell made this claim in his since-overturned decision in Booth v. Maryland, arguing that "in some cases the victim
will not leave behind a family, or the family members may be less articulate in describing their feelings even though
their sense of loss is equally severe." n75 This kind of difference, however, is hardly unique to victim impact evidence.
n76 To provide one obvious example, current rulings from the Court invite defense mitigation evidence from a
defendant's family and friends, despite the fact that some defendants may have more or less articulate acquaintances. In
Payne, for example, the defendant's parents testified that he was "a good son" and his girlfriend testified that he "was
affectionate, caring, and kind to her children." n77 In another case, a defendant introduced evidence of having won a
dance choreography award while in prison. n78 Surely this kind of testimony, no less than victim impact statements,
can vary in persuasiveness in ways not directly connected to a defendant's culpability; n79 yet, it is routinely allowed.
One obvious reason is that if varying persuasiveness were grounds for an inequality attack, then it is hard to see how the
criminal justice system could survive at all. Justice White's powerful dissenting argument in Booth went unanswered,
and remains unanswerable: "No two prosecutors have exactly the same ability to present their arguments to the jury; no
two witnesses have exactly the same ability to communicate the facts; but there is no requirement . . . [that] the evidence
and argument be reduced to the lowest common denominator." n80
Given that our current system allows almost unlimited mitigation evidence on the part of the defendant, an
argument for equal justice requires, if anything, that victim statements be allowed. Equality demands fairness not only
between cases, but also within cases. n81 Victims and the public generally [*495] perceive great unfairness in a
sentencing system with "one side muted." n82 The Tennessee Supreme Court stated the point bluntly in its decision in
Payne, explaining that "it is an affront to the civilized members of the human race to say that at sentencing in a capital
case, a parade of witnesses may praise the background, character and good deeds of Defendant . . . without limitation as

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to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims." n83
With simplicity but haunting eloquence, a father whose ten-year-old daughter, Staci, was murdered, made the same
point. n84 Before the sentencing phase began, Marvin Weinstein asked the prosecutor for the opportunity to speak to
the jury because the defendant's mother would have the chance to do so. n85 The prosecutor replied that Florida law
did not permit this. n86 Here was Weinstein's response to the prosecutor:
What? I'm not getting a chance to talk to the jury? He's not a defendant anymore. He's a murderer! A
convicted murderer! The jury's made its decision. . . . His mother's had her chance all through the trial to
sit there and let the jury see her cry for him while I was barred. n87 . . . Now she's getting another
chance? Now she's going to sit there in that witness chair and cry for her son, that murderer, that
murderer who killed my little girl! Who will cry for Staci? Tell me that, who will cry for Staci? n88
There is no good answer to this question, n89 a fact that has led to a change in the law in Florida and, indeed, all
around the country. Today the laws of the overwhelming majority of states admit victim impact statements in capital
and other cases. n90 These prevailing views lend strong support to the [*496] conclusion that equal justice demands
the inclusion of victim impact statements, not their exclusion.
These arguments sufficiently dispose of the critics' main contentions. n91 Nonetheless, it is important to
underscore that the critics generally fail to grapple with one of the strongest justifications for admitting victim impact
statements: avoiding additional trauma to the victim. For all the fairness reasons just explained, gross disparity between
defendants' and victims' rights to allocute at sentencing creates the risk of serious psychological injury to the victim.
n92 As Professor Douglas Beloof has nicely explained, a justice system that fails to recognize a victim's right to
participate threatens "secondary harm"--that is, harm inflicted by the operation of government processes beyond that
already caused by the perpetrator. n93 This trauma stems [*497] from the fact that the victim perceives that the
"system's resources are almost entirely devoted to the criminal, and little remains for those who have sustained harm at
the criminal's hands." n94 As two noted experts on the psychological effects of crime have concluded, failure to offer
victims a chance to participate in criminal proceedings can "result in increased feelings of inequity on the part of the
victims, with a corresponding increase in crime-related psychological harm." n95 On the other hand, there is mounting
evidence that "having a voice may improve victims' mental condition and welfare." n96 For some victims, making a
statement helps restore balance between themselves and the offenders. n97 Others may consider it part of a just process
or may want "to communicate the impact of the offense to the offender." n98 This multiplicity of reasons explains why
victims and surviving family members want so desperately to participate in sentencing hearings, even though their
participation may not necessarily change the outcome. n99
The possibility of the sentencing process aggravating the grievous injuries suffered by victims and their families is
generally ignored by the Amendment's opponents. But this possibility should give us great pause before we structure
our criminal justice system to add the government's insult to criminally inflicted injury. For this reason alone, victims
and their families, no less than defendants, should be given the opportunity to be heard at sentencing.
[*498] 2. The Right to Be Present at Trial
The allegation that the Amendment will impair defendants' rights is most frequently advanced in connection with
the victim's right to be present at trial. n100 The most detailed and careful explication of the argument is Professor
Mosteller's, advanced in this Symposium and elsewhere n101 and recently relied upon by the dissenting senators of the
Judiciary Committee. n102 In brief, Mosteller believes that fairness to defendants requires that victims be excluded
from the courtroom, at least in some circumstances, to avoid the possibility that they might tailor their testimony to that
given by other witnesses. n103 While I admire the clarity and doggedness with which Mosteller has set forth his
position, I respectfully disagree with his conclusions for reasons to be articulated at length elsewhere. n104 Here it is
only necessary to note that even this strong opponent of the Amendment finds himself agreeing with the value
underlying the victim's right. He writes: "Many victims have a special interest in witnessing public proceedings
involving criminal cases that directly touched their lives." n105 This view is widely shared. For instance, the Supreme

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Court has explained that "the victim of the crime, the family of the victim, [and] others who have suffered similarly . . .
have an interest in observing the course of a prosecution." n106 Victim concern about the prosecution stems from the
fact that society has withdrawn "both from the victim and the vigilante the enforcement of criminal laws, but [it] cannot
erase from people's consciousness the fundamental, natural yearning to see justice done--or even the urge for
retribution." n107
Professor Mosteller also seems to suggest that defendants currently have no constitutional right to exclude victims
from trials, meaning that his [*499] argument rests purely on policy. n108 Mosteller's policy claim is not the general
one that most victims ought to be excluded, but rather the much narrower one that "victims' rights to attend . . .
proceedings should be guaranteed unless their presence threatens accuracy and fairness in adjudicating the guilt or
innocence of the defendant." n109 On close examination, it turns out that, in Mosteller's view, victims' attendance
threatens the accuracy of proceedings not in a typical criminal case, but only in the atypical case of a crime with
multiple victims who are all eyewitness to the same event and who thus might tailor their testimony if allowed to
observe the trial together. n110 This is a rare circumstance indeed, and it is hard to see the alleged disadvantage in this
unusual circumstance outweighing the more pervasive advantages to victims in the run-of-the-mine cases. n111
Moreover, even in rare circumstances of multiple victims, other means exist for dealing with the tailoring issue. For
example, the victims typically have given pretrial statements to police, grand juries, prosecutors, or defense
investigators that would eliminate their ability to change their stories effectively. n112 In addition, the defense attorney
may argue to the jury that victims have tailored their testimony even when they have not n113 --a fact that leads some
critics of the Amendment to conclude that this provision will, if anything, help defendants rather than harm them. The
dissenting Senators, for example, make precisely this helps-the-defendant [*500] argument, n114 although at another
point they present the contrary harms-the-defendant claim. n115 In short, the critics have not articulated a strong case
against the victim's right to be present.
3. The Right to Consideration of the Victim's Interest in a Trial Free from Unreasonable Delay
Opponents of the Amendment sometimes argue that giving victims a right to "consideration" of their interest "that
any trial be free from unreasonable delay" n116 would impinge on a defendant's right to prepare an adequate defense.
For example, the dissenting senators in the Judiciary Committee claimed that "the defendant's need for more time could
be outweighed by the victim's assertion of his right to have the matter expedited, seriously compromising the
defendant's right to effective assistance of counsel and his ability to receive a fair trial." n117 Similarly, Professor
Mosteller advances the claim here that this right "also affect[s] substantial interests of the defendant and may even alter
the outcomes of cases." n118
These arguments fail to consider the precise scope of the victim's right in question. The right the Amendment
confers is one to "consideration of the interest of the victim that any trial be free from unreasonable delay." n119 The
opponents never seriously grapple with the fact that, by definition, all of the examples that they give of defendants
legitimately needing more time to prepare would constitute reasons for "reasonable" delay. Indeed, it is interesting to
note similar language in the American Bar Association's directions to defense attorneys to avoid "unnecessary delay"
that might harm victims. n120 The victim's right, moreover, is to "consideration" of the victim's interests. The
proponents of the Amendment could not have been clearer [*501] about the intent to allow legitimate defense
continuances. As the Judiciary Committee explained:
The Committee intends for this right to allow victims to have the trial of the accused completed as
quickly as is reasonable under all of the circumstances of the case, giving both the prosecution and the
defense a reasonable period of time to prepare. The right would not require or permit a judge to proceed
to trial if a criminal defendant is not adequately represented by counsel. n121
Such a right, while not treading on any legitimate interest of a defendant, will safeguard vital interests of victims.
Victims' advocates have offered repeated examples of abusive delays by defendants designed solely for tactical
advantage rather than actual preparation of the defense of a case. n122 Abusive delays appear to be particularly

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common when the victim of the crime is a child, for whom each day up until the case is resolved can seem like an
eternity. n123 Such cases present a strong justification for this provision in the Amendment. Nonetheless, writing in
this Symposium, Professor Mosteller advances the proposition that this right "should undergo rigorous debate on [its]
merits and should not slide in under the cover of a campaign largely devoted to giving victims' rights to notice and to
participate in criminal proceedings." n124 This seems a curious argument, as the victims community has tried to debate
this right "on its merits" for years. As long ago as 1982, the President's Task Force on Victims of Crime offered
suggestions for protecting a victim's interest in a prompt disposition of the case. n125 In the years since then, it has
been hard to find critics of victims' rights willing to contend, on the merits, the need for protecting victims against
abusive delay. n126 If anything, the time has arrived for the opponents of the victim's [*502] right to proceedings free
from unreasonable delay to address the serious problem of unwarranted delay in criminal proceedings or to concede
that, here too, a strong case for the Amendment exists.
B. Prosecution-Oriented Challenges to the Amendment
Some objections to victims' rights rest not on alleged harm to defendants' interests but rather on alleged harm to the
interests of the prosecution. Often these objections surprisingly come from persons not typically solicitous of
prosecution concerns, n127 suggesting that some skepticism may be warranted. In any event, the arguments lack
It is sometimes argued that only the State should direct criminal prosecutions. This claim might have some bite
against a proposal to allow victims to initiate or otherwise control the course of criminal prosecutions, n128 but it has
little force against the proposed amendment. The Victims' Rights Amendment assumes a prosecution-directed system
and simply grafts victims' rights onto it. Victims receive notification of decisions that the prosecution makes and,
indeed, have the right to provide information to the court at appropriate junctures, such as bail hearings, plea bargaining,
and sentencing. However, the prosecutor still files the complaint and moves it through the system, making decisions not
only about which charges, if any, to file, but also about which investigative leads to pursue and which witnesses to call
at trial. While victims can "follow[] their own case down the [*503] assembly line" in Professor Beloof's colorful
metaphor, n129 the fact remains that the prosecutor runs the assembly line. This general approach of grafting victims'
rights onto the existing system mirrors the approach followed by all of the various state victims' amendments, and few
have been heard to argue that the result has been interference with legitimate prosecution interests.
Perhaps an interferes-with-the-prosecutor objection might be refined to apply only against a victim's right to be
heard on plea bargains, since this right arguably hampers a prosecutor's ability to terminate the prosecution. But today,
it is already the law of many jurisdictions that the court must determine whether to accept or reject a proposed plea
bargain after weighing all relevant interests. n130 Given that victims undeniably have relevant, if not compelling,
interests in proposed pleas, the Amendment neither breaks new theoretical ground nor displaces any legitimate
prosecution interest. Instead, victim statements simply provide more information for the court to consider in making its
decision. The available empirical evidence also suggests that victim participation in the plea bargaining process does
not burden the courts and produces greater victim satisfaction even where, as is often the case, victims ultimately do not
influence the outcome. n131
In addition, critics of victim involvement in the plea process almost invariably overlook the long-standing
acceptance of judicial review of plea bargains. These critics portray pleas as a matter solely for a prosecutor and a
defense attorney to work out. They then display a handful of cases in which the defendant was ultimately acquitted at
trial after courts had the temerity to reject a plea after hearing from victims. These cases, the critics maintain, prove that
any outside review of pleas is undesirable. n132 The possibility of an [*504] erroneous rejection of a plea is, of
course, inherent in any system allowing review of a plea. In an imperfect world, judges will sometimes err in rejecting a
plea that, in hindsight, should have been accepted. The salient question, however, is whether as a whole judicial review
does more good than harm--that is, whether, on balance, courts make more right decisions than wrong ones. Just as
cases can be cited where judges possibly made mistakes in rejecting a plea, so too cases exist where judges rejected plea
bargains that were unwarranted. n133 These reported cases of victims persuading judges to reject unjust pleas form just

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a small part of the picture, because in many other cases, the mere prospect of victim objection undoubtedly has
restrained prosecutors from bargaining cases away without good reason. My strong sense is that judicial review of pleas
by courts after hearing from victims more often improves rather than retards justice. The failure of the critics to contend
on the issue of net effect and the growing number of jurisdictions that allow victim input n134 is strong evidence for
this conclusion.
Another prosecution-based objection to victims' rights is that, while they are desirable in theory, in practice they
would be unduly expensive. n135 Here again, prominent critics must distort the language of the Amendment to [*505]
manufacture a point in their favor. For example, the dissenting Senators claimed that the victim's right "not to be
excluded from" the trial equates with a victim's right to be transported to the trial. They then conclude that "the right not
to be excluded could create a duty for the Government to provide travel and accommodation costs for victims who
could not otherwise afford to attend." n136 This fanciful objection runs contrary to both the plain language of the
Amendment and the explicit statements of its supporters and sponsors. The underlying right is not for victims to be
transported to the courthouse, but simply to enter the courthouse once there. As the Senate Judiciary Committee report
explains, "The right conferred is a negative one--a right 'not to be excluded'--to avoid the suggestion that an alternative
formulation--a right "to attend"--might carry with it some governmental obligation to provide funding . . . for a victim to
attend proceedings." n137 The objection also runs counter to current interpretations of comparable language in other
enactments. Federal law and many state constitutional amendments already extend to victims the arguably more
expansive right "to be present" at or "to attend" court proceedings. n138 Yet no court has interpreted any one of these
provisions as guaranteeing a victim a right of transportation and lodging at public expense. The federal amendment is
even less likely to be construed to confer such an unprecedented entitlement because of its negative formulation. n139
Once victims arrive at the courthouse, their attendance at proceedings imposes no significant incremental costs. In
exercising their right to attend, victims simply can sit in the benches that have already been built. Even in cases
involving hundreds of victims, innovative approaches such as closedcircuit [*506] circuit broadcasting have proven
feasible. n140 As for the victim's right to be heard, the state experience reveals only a modest cost impact. n141
Most of the cost arguments have focused on the Amendment's notification provisions. Yet, it is already recognized
as sound prosecutorial practice to provide notice to victims. The National Prosecution Standards prepared by the
National District Attorneys Association recommend that victims of violent crimes and other serious felonies should be
informed, where feasible, of important steps in the criminal justice process. n142 In addition, many states have required
that victims receive notice of a broad range of criminal justice proceedings. Nearly every state provides notice of the
trial, sentencing, and parole hearings. n143 In spite of the fact that notice is already required in many circumstances
across the country, the dissenting senators on the Judiciary Committee argued that the "potential costs of [the
Amendment's] constitutionally mandated notice requirements alone are staggering." n144 Perhaps these predictions
should simply be written off as harmless political rhetoric, but it is important to note that these suggestions are
inconsistent with the relevant evidence. The experience with victim notice requirements already used at the state level
suggests that the costs are relatively modest, particularly since computerized mailing lists and automated telephone calls
can be used. The Arizona amendment serves as a good illustration. That amendment extends notice rights far beyond
what is called for in the federal amendment; n145 yet, prosecutors have not found the [*507] expense burdensome in
practice. n146 As a result of the existing state notification requirements, any incremental expense in Arizona from the
federal amendment should be quite modest.
The only careful and objective assessment of the costs of the Amendment also reaches the conclusion that the costs
are slight. The Congressional Budget Office reviewed the financial impact of not just the notification provisions of the
Amendment, but of all its provisions, on the federal criminal justice system. The CBO concluded that, were the
Amendment to be approved, it "could impose additional costs on the Federal courts and the Federal prison system. . . .
However, CBO does not expect any resulting costs to be significant." n147
This CBO report is a good one on which to wrap up the discussion of normative objections to the Amendment.
Here is an opportunity to see how the critics' claims fare when put to a fair-minded and neutral assessment. In fact, the

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critics' often-repeated allegations of "staggering" costs were found to be exaggerated.
A. The "Unnecessary" Constitutional Amendment
Because the normative arguments for victims' rights are so powerful, some critics of the Victims' Rights
Amendment take a different tack and mount what might be described as a justification challenge. This approach
concedes that victims' rights may be desirable, but maintains that victims already possess such rights or can obtain such
rights with relatively minor modifications in the current regime. The best single illustration of this attack is found in
Professor Mosteller's article in this Symposium, entitled The Unnecessary Victims' Rights Amendment. n148 There,
Mosteller contends that a constitutional amendment is not needed because the obstacles that victims face--described by
Mosteller as "official indifference" and "excessive judicial deference"--can all be overcome without a constitutional
amendment. n149
[*508] Professor Mosteller's clearly developed position is ultimately unpersuasive because it supplies a purely
theoretical answer to a practical problem. In theory, victims' rights could be safeguarded without a constitutional
amendment. It would only be necessary for actors within the criminal justice system--judges, prosecutors, defense
attorneys, and others--to suddenly begin fully respecting victims' interests. The real-world question, however, is how to
actually trigger such a shift in the Zeitgeist. For nearly two decades, victims have obtained a variety of measures to
protect their rights. Yet, the prevailing view from those who work in the field is that these efforts "have all too often
been ineffective." n150 Rules to assist victims "frequently fail to provide meaningful protection whenever they come
into conflict with bureaucratic habit, traditional indifference, [or] sheer inertia." n151 The view that state victim
provisions have been and will continue to be often disregarded is widely shared, as some of the strongest opponents of
the Amendment seem to concede the point. For example, Ellen Greenlee, President of the National Legal Aid and
Defender Association, bluntly and revealingly told Congress that the state victims' amendments "so far have been
treated as mere statements of principle that victims ought to be included and consulted more by prosecutors and courts.
A state constitution is far . . . easier to ignore[] than the federal one." n152
Professor Mosteller attempts to minimize the current problems, conceding only that "existing victims' rights are not
uniformly enforced." n153 This is a grudging concession to the reality that victims' rights are often denied today, as
numerous examples of violations of rights in the congressional record and elsewhere attest. n154 A comprehensive
view comes from a careful study of the issue by the Department of Justice. As reported by the Attorney General, the
Department found that
efforts to secure victims' rights through means other than a constitutional amendment have proved less
than fully adequate. Victims' rights advocates have sought reforms at the state level for the past twenty
years, [*509] and many states have responded with state statutes and constitutional provisions that seek
to guarantee victims' rights. However, these efforts have failed to fully safeguard victims' rights. These
significant state efforts simply are not sufficiently consistent, comprehensive, or authoritative to
safeguard victims' rights. n155
Similarly, an exhaustive report from those active in the field concluded that "[a] victims' rights constitutional
amendment is the only legal measure strong enough to rectify the current inconsistencies in victims' rights laws that
vary significantly from jurisdiction to jurisdiction on the state and federal levels." n156
Hard statistical evidence on noncompliance with victims' rights laws confirms these general conclusions about
inadequate protection. A 1998 report from the National Institute of Justice ("NIJ") found that many victims are denied
their rights and concluded that "enactment of State laws and State constitutional amendments alone appears to be
insufficient to guarantee the full provision of victims' rights in practice." n157 The report found numerous examples of
victims not provided rights to which they were entitled. For example, even in several states identified as giving "strong

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protection" to victims rights, fewer than 60% of the victims were notified of the sentencing hearing and fewer than 40%
were notified of the pretrial release of the defendant. n158 A follow-up analysis of the same data found that racial
minorities are less likely to be afforded their rights under the patchwork of existing statutes. n159 Professor Mosteller
dismisses these figures with the essentially ad hominem attack that they were collected by the National Victim Center,
which supports a victims' rights amendment. n160 However, the data themselves were collected by an independent
polling firm. n161 Mosteller also [*510] cites one internal Justice Department reviewer who stated during the review
process in conclusory terms that the report was unsatisfactory and should not be published. n162 The conclusion of the
NIJ review process, however, after hearing from all reviewers, including apparently favorable peer reviews, was to
publish the study. n163 Finally, Mosteller criticizes the data as resting on unverified self-reported data from crime
victims. However, since the research question was how many victims had been afforded their rights, asking victims,
rather than the agencies suspected of failing to provide rights, would appear to be a standard methodological approach.
The study also obtained a very high response rate (83%) from the victims interviewed, n164 suggesting that the
findings are not due to any kind of responder bias. And given the magnitude of the alleged failures to provide victims'
rights--ranging up to 60% and more--the general dismissal picture presented by the NIJ report is clear. Opponents of the
Amendment offer no competing statistics, and such other data as exist tend to corroborate the NIJ findings of substantial
noncompliance. n165
Given such statistics, it is interesting to consider what the defenders of the status quo believe is an acceptable level
of violation of rights. Suppose new statistics could be gathered that show that victims' rights are respected in 75% of all
cases, or 90%, or even 98%. America is so far from a 98% rate for affording victims rights that my friends on the front
lines of providing victim services probably will dismiss this exercise as a meaningless law school hypothetical. But
would a 98% compliance rate demonstrate that the amendment is "unnecessary"? Even a 98% enforcement rate would
leave numerous victims unprotected. As the Supreme Court has observed in response to the claim that the Fourth
Amendment exclusionary rule affects [*511] "only" about 2% of all cases in this country, "small percentages . . . mask
a large absolute number of" cases. n166 A rough calculation suggests that even if the Victims' Rights Amendment
improved treatment for only 2% of the violent crime cases it affects, a total of about 30,000 victims would benefit each
year. n167 Even more importantly, we would not tolerate a mere 98% "success" rate in enforcing other important
rights. Suppose that, in opposition to the Bill of Rights, it had been argued that 98% of all Americans could worship in
the religious tradition of their choice, 98% of all newspapers could publish without censorship from the government,
98% of criminal defendants had access to counsel, and 98% of all prisoners were free from cruel and unusual
punishment. Surely the effort still would have been mounted to move the totals closer to 100%. Given the wide
acceptance of victims' rights, they deserve the same respect.
Professor Mosteller does not spend much time reviewing the level of compliance in the current system, instead
moving quickly to the claim that the Amendment will "not automatically eliminate[]" the problem of official
indifference to victims' rights. n168 But the key issue is not whether the Amendment will "eliminate" indifference, but
rather whether it will reduce indifference--thereby improving the lot of victims. Here the posture of the Amendment's
critics is quite inconsistent. On the one hand, they posit dramatic damaging consequences that will reverberate
throughout the system after the Amendment's adoption, even though those consequences are entirely unintended. Yet, at
the same time, they are unwilling to concede that the Amendment will make even modest positive consequences in the
areas that it specifically addresses.
[*512] The best view of the Amendment's effects is a moderate one that avoids the varying extremes of the critics.
Of course the Amendment will not eliminate all violations of victims' rights, particularly because practical politics have
stripped from the Amendment its civil damages provision. n169 But neither will the Amendment amount to an
ineffectual response to official indifference. On this point, it is useful to consider the steps involved in adopting the
Amendment. Both the House and Senate of the United States Congress would pass the measure by two-thirds votes.
Then a full three-quarters of the states would ratify the provision. n170 No doubt these events would generate dramatic
public awareness of the nature of the rights and the importance of providing them. In short, the adoption of the
Amendment would constitute a major national event. One might even describe it as a "constitutional moment" (of the

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old fashioned variety) where the nation recognizes the crucial importance of protecting certain rights for its citizens.
n171 Were such events to occur, the lot of crime victims likely would improve considerably. The available social
science research suggests that the primary barrier to successful implementation of victims' rights is "the socialization of
[lawyers] in a legal culture and structure that do not recognize the victim as a legitimate party in criminal proceedings."
n172 Professor Mosteller seems to agree generally with this view, explaining that "officials fail to honor victims' rights
largely as a result of inertia, past learning, insensitivity to the unfamiliar needs of victims, lack of training, and
inadequate or misdirected institutional incentives." n173 A constitutional amendment, reflecting the instructions of the
nation to its criminal justice system, is perfectly designed to attack these problems and develop a new legal culture
supportive of victims. To be sure, one can paint the prospect of [*513] such a change in culture as "entirely
speculative." n174 Yet this means nothing more than that, until the Amendment passes, we will not have an opportunity
to precisely assay its positive effects. Constitutional amendments have changed our legal culture in other areas, and
clearly the logical prediction is that a victims' amendment would go a long way towards curing official indifference.
This hypothesis is also consistent with the findings of the NIJ study on state implementation of victims' rights. The
study concluded that "where legal protection is strong, victims are more likely to be aware of their rights, to participate
in the criminal justice system, to view criminal justice system officials favorably, and to express more overall
satisfaction with the system." n175 It is hard to imagine any stronger protection for victims' rights than a federal
constitutional amendment. Moreover, we can confidently expect that those who will most often benefit from the
enhanced consistency in protecting victims' rights will be members of racial minorities, the poor, and other
disempowered groups. Such victims are the first to suffer under the current, "lottery" implementation of victims' rights.
Professor Mosteller devotes much of his article to challenging the claim that the Amendment is needed to block
excessive official deference to the rights of criminal defendants. Proponents of the Amendment have argued that, given
two hundred years of well-established precedent supporting defendants' rights, the apparently novel victims' rights
found in state constitutional amendments and elsewhere too frequently have been ignored on spurious grounds of
alleged conflict. n177 Professor Mosteller, however, rejects this argument on the ground that there is no "currently
valid appellate opinion reversing a defendant's conviction because of enforcement of a provision of state or federal law
or state constitution that granted a right to a victim." n178 As a result, he concludes, there is no evidence of a
"significant body of law that would warrant the remedy of a constitutional amendment." n179
This argument does not refute the case for the Amendment, but rather is a mere straw man created by the
opponents. The important issue is not whether victims' rights are thwarted by a body of appellate law, but rather
whether they are blocked by any obstacles, including most especially obstacles at the trial level where victims must first
attempt to secure their [*514] rights. One would naturally expect to find few appellate court rulings rejecting victims'
rights; there are few victims' rulings anywhere, let alone in appellate courts. To get to the appellate level--in this
context, the "mansion" of the criminal justice system--victims first must pass through the "gatehouse"--the trial court.
n180 That trip is not an easy one. Indeed, one of the main reasons for the Amendment is that victims find it
extraordinarily difficult to get anywhere close to appellate courts. To begin with, victims may be unaware of their rights
or discouraged by prosecutors from asserting them. Even if aware and interested in asserting their rights in court,
victims may lack the resources to obtain counsel. Finding counsel, too, will be unusually difficult, since the field of
victims' rights is a new one in which few lawyers specialize. n181 Time will be short, since many victims' issues,
particularly those revolving around sequestration rules, arise at the start of or even during the trial. Even if a lawyer is
found, she must arrange to file an interlocutory appeal in which the appellate court will be asked to intervene in ongoing
trial proceedings in the court below. If victims can overcome all these hurdles, the courts still possess an astonishing
arsenal of other procedural obstacles to prevent victim actions, as Professor Bandes's paper in this Symposium cogently
demonstrates. n182 In light of all these hurdles, appellate opinions about victim issues seem, to put it mildly, quite
One can interpret the resulting dearth of rulings as proving, as Professor Mosteller would have it, that no reported
appellate decisions strike down victims' rights. Yet it is equally true that, at best, only a handful of reported appellate

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decisions uphold victims' rights. This fact tends to provide an explanation for the frequent reports of denials of victims'
rights at the trial level. Given that these rights are newly created and the lack of clear appellate sanction, one would
expect trial courts to be wary of enforcing these rights against the inevitable, if invariably imprecise, claims of
violations of a defendant's rights. n183 Narrow readings will be encouraged by the asymmetries [*515] of
appeal--defendants can force a new trial if their rights are denied, while victims cannot. n184 Victims, too, may be
reluctant to attempt to assert untested rights for fear of giving a defendant grounds for a successful appeal and a new
trial. n185
In short, nothing in the appellate landscape provides a basis for concluding that all is well with victims in the
nation's trial courts. The Amendment's proponents have provided ample examples of victims denied rights in the
day-to-day workings of the criminal trials. The Amendment's opponents seem tacitly to concede the point by shifting
the debate to the more rarified appellate level. Thus, here again, the opponents have not fully engaged the case for the
As one final fallback position, the Amendment's critics maintain that it will not "eliminate" the problems in
enforcing victims' rights because some level of uncertainty will always remain. n186 However, as noted before, the
issue is not eliminating uncertainty, but reducing it. Surely giving victims explicit constitutional protection will
vindicate their rights in many circumstances where today the trial judge would be uncertain how to proceed. Moreover,
the Amendment's clear conferral of "standing" on victims n187 will help to develop a body of precedents on how
victims are to be treated. There is, accordingly, every reason to expect that the Amendment will reduce uncertainties
substantially and improve the lot of crime victims.
B. The Oklahoma City Illustration of the "Necessary" Amendment
On assessing whether the Amendment is "necessary," it might be said that "a page of history is worth a volume of
logic." n188 To be sure, one can cite examples of victims who have received fair treatment in the criminal justice
system, as Professor Henderson's moving narrative about her treatment during the prosecution of her rapist
demonstrates. n189 Nonetheless, this and [*516] other examples hardly make the case against reform, as even
Henderson seems to concede that there is a need for improvement in many cases. n190 The question then becomes
whether a constitutional amendment would operate to spur that improvement. Here it is necessary to look not at the
system's successes in ruling on victims' claims, but rather at its failures. The Oklahoma City bombing case provides an
illustration of the difficulties victims face in having their claims considered by appellate courts.
During a pre-trial motion hearing in the Timothy McVeigh prosecution, the district court sua sponte issued a ruling
precluding any victim who wished to provide victim impact testimony at sentencing from observing any proceeding in
the case. n191 The court based its ruling on Rule 615 of the Federal Rules of Evidence--the so-called "rule on
witnesses." n192 In the hour that the court then gave to victims to make this wrenching decision about testifying, some
of the victims opted to watch the proceedings; others decided to leave Denver to remain eligible to provide impact
testimony. n193
Thirty-five victims and survivors of the bombing then filed a motion asserting their own standing to raise their
rights under federal law and, in the alternative, seeking leave to file a brief on the issue as amici curiae. n194 The
victims noted that the district court apparently had overlooked the Victims' Bill of Rights, a federal statute guaranteeing
victims the right (among others) "to be present at all public court proceedings, unless the court determines that
testimony by the victim would be materially affected if the victim heard other testimony at trial." n195
[*517] The district court then held a hearing to reconsider the issue of excluding victim witnesses. n196 The court
first denied the victims' motion asserting standing to present their own claims, allowing them only the opportunity to
file amicus briefs. n197 After argument by the Department of Justice and by the defendants, the court denied the
motion for reconsideration. n198 It concluded that victims present during court proceedings would not be able to
separate the "experience of trial" from "the experience of loss from the conduct in question," and, thus, their testimony

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at a sentencing hearing would be inadmissible. n199 Unlike the original ruling, which was explicitly premised on Rule
615, the October 4 ruling was more ambiguous, alluding to concerns under the Constitution, the common law, and the
rules of evidence. n200
The victims then filed a petition for writ of mandamus in the U.S. Court of Appeals for the Tenth Circuit seeking
review of the district court's ruling. n201 Because the procedures for victims appeals were unclear, the victims filed a
separate set of documents appealing from the ruling. n202 Similarly, the Department of Justice, uncertain of precisely
how to proceed procedurally, filed both an appeal and a petition for a writ of mandamus.
Three months later, a panel of the Tenth Circuit rejected--without oral argument--both the victims' and the
Department's claims on jurisdictional grounds. With respect to the victims' challenges, the court concluded that the
victims lacked "standing" under Article III of the Constitution because they had no "legally protected interest" to be
present at the trial and consequently had suffered no "injury in fact" from their exclusion. n203 The Tenth Circuit also
found that the victims had no right to attend the trial under any First Amendment right of access. n204 Finally, the
Tenth Circuit rejected, on jurisdictional grounds, the appeal and mandamus petition filed by the Department. n205
Efforts by both the victims and the Department of Justice to obtain a rehearing were unsuccessful, n206 even with the
support of separate [*518] briefs urging rehearing from forty-nine members of Congress, all six Attorneys General in
the Tenth Circuit, and some of the leading victims' groups in the nation. n207
In the meantime, the victims, supported by the Oklahoma Attorney General's Office, sought remedial legislation in
Congress clearly stating that victims should not have to decide between testifying at sentencing and watching the trial.
The Victims' Rights Clarification Act of 1997 was introduced to provide that watching a trial does not constitute
grounds for denying the chance to provide an impact statement. Representative Wexler, a supporter of the legislation,
observed the painful choice that the district court's ruling was forcing on the victims:
As one of the Oklahoma City survivors put it, a man who lost one eye in the explosion, "'It's not
going to affect our testimony at all. I have a hole in my head that's covered with titanium. I nearly lost
my hand. I think about it every minute of the day.'"
That man, incidentally, is choosing to watch the trial and to forfeit his right to make a victim impact
statement. Victims should not have to make that choice. n208
The measure passed the House by a vote of 418 to 19. n209 The next day, the Senate passed the measure by unanimous
consent. n210 The following day, President Clinton signed the Act into law, n211 explaining that "when someone
[*519] is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in." n212
The victims then promptly filed a motion with the district court asserting a right to attend under the new law. n213
The victims explained that the new law invalidated the court's earlier sequestration order and sought a hearing on the
issue. n214 Rather than squarely uphold the new law, however, the district court entered a new order on victim-impact
witness sequestration. n215 The court concluded that "any motions raising constitutional questions about this
legislation would be premature and would present issues that are not now ripe for decision." n216 Moreover, the court
held that it could address issues of possible prejudicial impact from attending the trial by conducting a voir dire of the
witnesses after the trial. n217 The district court also refused to grant the victims a hearing on the application of the new
law, concluding that its ruling rendered their request "moot." n218
After that ruling, the Oklahoma City victim impact witnesses--once again--had to make a painful decision about
what to do. Some of the victim impact witnesses decided not to observe the trial because of ambiguities and
uncertainties in the court's ruling, raising the possibility of excluding testimony from victims who attended the trial.
n219 The Department of Justice also met with many of the impact witnesses, advising them of these substantial
uncertainties in the law, and noting that any observation of the trial would create the possibility of exclusion of impact
testimony. n220 To end this confusion, the victims filed a motion for clarification of the judge's order. n221 The

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motion noted that "because of the uncertainty remaining under [*520] the Court's order, a number of the victims have
been forced to give up their right to observe defendant McVeigh's trial. This chilling effect has thus rendered the
Victims' Rights Clarification Act of 1997 . . . for practical purposes a nullity." n222 Unfortunately, the effort to obtain
clarification did not succeed, and McVeigh's trial proceeded without further guidance for the victims.
After McVeigh was convicted, the victims filed a motion to be heard on issues pertaining to the new law. n223
Nonetheless, the court refused to allow the victims to be represented by counsel during argument on the law or during
voir dire about the possible prejudicial impact of viewing the trial. n224 The court, however, concluded (as the victims
had suggested all along) that no victim was in fact prejudiced as a result of watching the trial. n225
This recounting of the details of the Oklahoma City bombing litigation leaves no doubt about the difficulties that
victims face with mere statutory protection of their rights. For a number of the victims, the rights afforded in the
Victims' Rights Clarification Act of 1997 and the earlier Victims' Bill of Rights were not protected. They did not
observe the trial of defendant Timothy McVeigh because of lingering doubts about the constitutional status of these
Not only were these victims denied their right to observe the trial, but perhaps equally troubling is that the fact that
they were never able to speak even a single word in court, through counsel, on this issue. This denial occurred in spite
of legislative history specifically approving of victim participation. In passing the Victims' Rights Clarification Act, the
House Judiciary Committee stated that it "assumes that both the Department of Justice and victims will be heard on the
issue of a victim's exclusion, should a question of their exclusion arise under this section." n226 In the Senate, the
[*521] primary sponsor of the bill similarly stated: "In disputed cases, the courts will hear from the Department of
Justice, counsel for the affected victims, and counsel for the accused." n227 Yet, the victims were never heard.
Some might claim that this treatment of the Oklahoma City bombing victims should be written off as atypical.
However, there is every reason to believe that the victims here were far more effective in attempting to vindicate their
rights than victims in less notorious cases. The Oklahoma City bombing victims were mistreated while the media
spotlight was on--when the nation was watching. The treatment of victims in forgotten courtrooms and trials is certainly
no better, and in all likelihood much worse. Moreover, the Oklahoma City bombing victims had five lawyers working to
press their claims in court--a law professor familiar with victims' rights, three lawyers at a prominent Washington, D.C.
law firm, and a local counsel in Colorado--as well as an experienced and skilled group of lawyers from the Department
of Justice. In the normal case, it often will be impossible for victims to locate a lawyer willing to pursue complex and
unsettled issues about their rights without compensation. One must remember that crime most often strikes the poor and
others in a weak position to retain counsel. n228 Finally, litigating claims concerning exclusion from the courtroom or
other victims' rights promises to be quite difficult. For example, a victim may not learn that she will be excluded until
the day the trial starts. Filing effective appellate actions in such circumstances promises to be practically impossible. It
should therefore come as little surprise that this litigation was the first in which victims sought federal appellate court
review of their rights under the Victims' Bill of Rights, even though that statute was passed in 1990.
The undeniable, and unfortunate, result of that litigation has been to establish--as the only reported federal appellate
ruling--a precedent that will make effective enforcement of the federal victims' rights statutes quite difficult. It is now
the law of the Tenth Circuit that victims lack "standing" to be heard on issues surrounding the Victims' Bill of Rights
and, for good measure, that the Department of Justice may not take an appeal asserting rights for victims under the
statute. n229 For all practical purposes, the treatment [*522] of crime victims' rights in federal court in Utah,
Colorado, Kansas, New Mexico, Oklahoma, and Wyoming has been remitted to the unreviewable discretion of
individual federal district court judges. The fate of the Oklahoma City victims does not inspire confidence that all
victims' rights will be fully enforced in the future. Even in other circuits, the Tenth Circuit ruling, while not controlling,
may be treated as having persuasive value. If so, the Victims' Bill of Rights will effectively become a dead letter.
The Oklahoma City bombing victims would never have suffered these indignities if the Victims' Rights
Amendment had been the law of the land. First, the victims would never have been subject to sequestration. The

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Amendment guarantees all victims the constitutional right "not to be excluded from[] any public proceedings relating to
the crime." n230 This would have prevented the sequestration order from being entered in the first place. Moreover, the
Amendment affords victims the right "to be heard, if present, . . . at [a public] proceeding[] to determine a . . . sentence."
n231 This provision would have protected the victims' right to provide impact testimony. Finally, the Amendment
provides that "the victim . . . shall have standing to assert the rights established by this article," n232 a protection
guaranteeing the victims, through counsel, the opportunity to be heard to protect those rights.
Critics of the Victims' Rights Amendment have cited the Oklahoma City remedial legislation as an example of the
"ability of victims to secure their interests through popular political action" n233 and "a paradigmatic example of how
statutes, when properly crafted, can and do work." n234 This sentiment is far wide of the mark. To the contrary, the
Oklahoma City case provides a compelling illustration of why a constitutional amendment is "necessary" to fully
protect victims' rights in this country.
A final category of objections to the Victims' Rights Amendment can be styled as "structural" objections. These
objections concede both the normative claim that victims' rights are desirable and the factual claim that such rights are
not effectively provided today. These objections maintain, however, that a federal constitutional amendment should not
be the means [*523] through which victims' rights are afforded. These objections come in three primary forms. The
standard form is that victims' rights simply do not belong in the Constitution as they are different from other rights
found there. A variant on this critique is that any attempt to constitutionalize victims' rights will lead to inflexibility,
producing disastrous, unintended consequences. A final form of the structural challenge is that the Amendment violates
principles of federalism. Each of these arguments, however, lacks merit.
A. Claims that Victims' Rights Do Not Belong in the Constitution
Perhaps the most basic challenge to the Victims' Rights Amendment is that victims' rights simply do not belong in
the Constitution. The most fervent exponent of this view may be constitutional scholar Bruce Fein, who has testified
before Congress that the Amendment is improper because it does not address "the political architecture of the nation."
n235 Putting victims' rights into the Constitution, the argument runs, is akin to constitutionalizing provisions of the
National Labor Relations Act or other statutes, and thus would "trivialize" the Constitution. n236 Indeed, the argument
concludes, to do so would "detract from the sacredness of the covenant." n237
This argument misconceives the fundamental thrust of the Victims' Rights Amendment, which is to guarantee
victim participation in basic governmental processes. The Amendment extends to victims the right to be notified of
court hearings, to attend those hearings, and to participate in them in appropriate ways. As Professor Tribe and I have
explained elsewhere:
These are rights not to be victimized again through the process by which government officials
prosecute, punish and release accused or convicted offenders. These are the very kinds of rights with
which our Constitution is typically and properly concerned--rights of individuals to participate in all
those government processes that strongly affect their lives. n238
[*524] Indeed, our Constitution has been amended a number of times to protect participatory rights of citizens. For
example, the Fourteenth and Fifteenth Amendments were added, in part, to guarantee that the newly freed slaves could
participate on equal terms in the judicial and electoral processes, the Seventeenth Amendment to allow citizens to elect
their own Senators, and the Nineteenth and Twenty-Sixth Amendments to provide voting rights for women and
eighteen-year-olds. n239 The Victims' Rights Amendment continues in that venerable tradition by recognizing that
citizens have the right to appropriate participation in the state procedures for punishing crime.
Confirmation of the constitutional worthiness of victims' rights comes from the judicial treatment of an analogous
right: the claim of the media to a constitutionally protected interest in attending trials. In Richmond Newspapers, Inc. v.

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Virginia, n240 the Court agreed that the First Amendment guaranteed the right of the public and the press to attend
criminal trials. n241 Since that decision, few have argued that the media's right to attend trials is somehow unworthy of
constitutional protection, suggesting a national consensus that attendance rights to criminal trials are properly the
subject of constitutional law. Yet, the current doctrine produces what must be regarded as a stunning disparity in the
way courts handle claims of access to court proceedings. Consider, for example, two issues actually litigated in the
Oklahoma City bombing case. The first was the request of an Oklahoma City television station for access to subpoenas
for documents issued through the court. The second was the request of various family members of the murdered victims
to attend the trial, discussed previously. n242 My sense is that the victims' request should be entitled to at least as much
respect as the media request. However, under the law that exists today, the television station has a First Amendment
interest in access to the documents, while the victims' families have no constitutional interest in challenging their
exclusion from the trial. n243 The point here is not to argue that victims deserve greater constitutional protection than
the press, but simply that if press interests can [*525] be read into the Constitution without somehow violating the
"sacredness of the covenant," the same can be done for victims. n244
Professor Henderson has advanced a variant on the victims'-rights-don't-belong-in-the-Constitution argument with
her claim that "a theoretical constitutional ground for victim's rights" has yet to be provided. n245 Law professors,
myself included, enjoy dwelling on theory at the expense of real-world issues, but even on this plane, the objection
lacks merit. Henderson seems to concede, if I read her correctly, that new constitutional rights can be justified on
grounds that they support individual dignity and autonomy. n246 In her view, then, the question becomes one of
discovering which policies society should support as properly reflecting individual dignity and autonomy. On this score,
there is little doubt that society currently believes that a victim's right to participate in the criminal process is a
fundamental one deserving protection. As Professor Beloof has explained at length in his piece here, "It is time to face
the fact that the law now acknowledges the importance of victim participation in the criminal process." n247
A further variant on the unworthiness objection is that our Constitution protects only "negative" rights against
governmental abuse. Professor Henderson writes here, for example, that the Amendment's rights differ from others in
the Constitution, which "tend to be individual rights against government." n248 Setting aside the possible response that
the Constitution ought to recognize affirmative duties of government, n249 the fact remains that [*526] the
Amendment's thrust is to check governmental power, not expand it. n250 Again, the Oklahoma City case serves as a
useful illustration. When the victims filed a challenge to a sequestration order directed at them, they sought the liberty
to attend court hearings. In other words, they were challenging the exercise of government power deployed against
them, a conventional subject for constitutional protection. The other rights in the Amendment fit this pattern, as they
restrain government actors, rather than extract benefits for victims. Thus, the State must give notice before it proceeds
with a criminal trial; the State must respect a victim's right to attend that trial; and the State must consider the interests
of victims at sentencing and other proceedings. These are the standard fare of constitutional protections, and indeed
defendants already possess comparable constitutional rights. Thus, extending these rights to victims is no novel creation
of affirmative government entitlements. n251
Still another form of this claim is that victims' rights need not be protected in the Constitution because victims
possess power in the political process--unlike, for example, unpopular criminal defendants. n252 This claim is factually
unconvincing because victims' power is easy to overrate. Victims' claims inevitably bump up against well-entrenched
interests within the criminal justice system, n253 and to date, the victims' movement has failed to achieve many of its
ambitions. Victims have not, for example, generally [*527] obtained the right to sue the government for damages for
violations of their rights, a right often available to criminal defendants and other ostensibly less powerful groups.
Additionally, the political power claim is theoretically unsatisfying as a basis for denying constitutional protection.
After all, freedom of speech, freedom of religion, and similar freedoms hardly want for lack of popular support, yet they
are appropriately protected by constitutional amendments. A standard justification for these constitutionally guaranteed
freedoms is that we should make it difficult for society to abridge such rights, to avoid the temptation to violate them in
times of stress or for unpopular claimants. n254 Victims' rights fit perfectly within this rationale. Institutional players in
the criminal justice system are subject to readily understandable temptations to give short shrift to victims' rights, and

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their willingness to protect the rights of unpopular crime victims is sure to be tested no less than society's willingness to
protect the free speech rights of unpopular speakers. n255 Indeed, evidence exists that the biggest problem today in
enforcing victims' rights is inequality, as racial minorities and other less empowered victims are more frequently denied
their rights. n256
A final worthiness objection is the claim that victims' rights "trivialize" the Constitution, n257 by addressing such
a mundane subject. It is hard for anyone familiar with the plight of crime victims to respond calmly to this claim.
Victims of crime literally have died because of the failure of the criminal justice system to extend to them the rights
protected by the Amendment. Consider, for example, the victims' right to be notified upon a prisoner's release. The
Department of Justice recently explained that
around the country, there are a large number of documented cases of women and children being killed by
defendants and convicted offenders recently released from jail or prison. In many of these cases, the
victims [*528] were unable to take precautions to save their lives because they had not been notified.
The tragic unnecessary deaths of those victims is, to say the least, no trivial concern.
Other rights protected by the Amendment are similarly consequential. Attending a trial, for example, can be a
crucial event in the life of the victim. The victim's presence can not only facilitate healing of debilitating psychological
wounds, n259 but also help the victim try to obtain answers to haunting questions. As one woman who lost her husband
in the Oklahoma City bombing explained, "When I saw my husband's body, I began a quest for information as to
exactly what happened. The culmination of that quest, I hope and pray, will be hearing the evidence at a trial." n260 On
the other hand, excluding victims from trials--while defendants and their families may remain--can itself revictimize
victims, creating serious additional or "secondary" harm from the criminal process itself. n261 In short, the claim that
the Victims' Rights Amendment trivializes the Constitution is itself a trivial contention.
B. The Problem of Inflexible Constitutionalization
Another argument raised against the Victims' Rights Amendment is that victims' rights should receive protection
through flexible state statutes and amendments, not an inflexible, federal, constitutional amendment. If victims' rights
are placed in the United States Constitution, the argument runs, it will be impossible to correct any problems that might
arise. The Judicial Conference explication of this argument is typical: "Of critical importance, such an approach is
significantly more flexible. It would more easily accommodate a measured approach, and allow for 'fine tuning' if
deemed [*529] necessary or desirable by Congress after the various concepts in the Act are applied in actual cases
across the country." n262
This argument contains a kernel of truth because its premise--that the Federal Constitution is less flexible than state
provisions--is undeniably correct. This premise is, however, the starting point for the victims' position as well. Victims'
rights all too often have been "fine tuned" out of existence. As even the Amendment's critics agree, state amendments
and statutes are "far easier . . . to ignore," n263 and for this very reason victims seek to have their rights protected in the
Federal Constitution. To carry any force, the argument must establish that the greater respect victims will receive from
constitutionalization of their rights is outweighed by the unintended, undesirable, and uncorrectable consequences of
lodging rights in the Constitution.
Such a claim is untenable. To begin with, the Victims' Rights Amendment spells out in considerable detail the
rights it extends. While this wordiness has exposed the Amendment to the charge of "cluttering the Constitution," n264
the fact is that the room for surprises is substantially less than with other previously adopted, more open-ended
amendments. On top of the Amendment's precision, its sponsors further have explained in great detail their intended
interpretation of the Amendment's provisions. n265 In response, the dissenting Senators were forced to argue not that
these explanations were imprecise or unworkable, but that courts simply would ignore them in interpreting the

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Amendment n266 and, presumably, go on to impose some contrary and damaging meaning. This is an unpersuasive
leap because courts routinely look to the intentions of drafters in interpreting constitutional language no less than other
enactments. n267 Moreover, the assumption that courts will interpret the Amendment to produce great mischief
requires justification. One can envision, for instance, precisely the same arguments about the need for flexibility being
leveled against a [*530] defendant's right to a trial by jury. n268 What about petty offenses? n269 What about
juvenile proceedings? n270 How many jurors will be required? n271 All these questions have, as indicated in the
footnotes, been resolved by court decision without disaster to the Union. There is every reason to expect that the
Victims' Rights Amendment will be similarly interpreted in a sensible fashion. Just as courts have not read the
seemingly unqualified language of the First Amendment as creating a right to yell "Fire!" in a crowded theater, n272
they will not construe the Victims' Rights Amendment as requiring bizarre results. n273
In any event, the claim of unintended consequences amounts to an argument about language--specifically, that the
language is insufficiently malleable to avoid disaster. An argument about inflexible language can be answered with
language providing elasticity. The Victims' Rights Amendment has a provision addressed precisely to this point. The
Amendment provides that "exceptions to the rights established by this article may be created . . . when necessary to
achieve a compelling interest." n274 Any parade of horribles collapses under this provision. A serious unintended
consequence under the language of the Amendment is, by definition, a compelling reason for creating an exception.
Curiously, those who argue that the Amendment is not sufficiently flexible to avoid calamity have yet to explain why
the exceptions clause fails to guarantee all the malleability that is needed.
[*531] C. Federalism Objections
A final structural challenge to the Victims' Rights Amendment is the claim that it violates principles of federalism
by mandating rights across the country. For example, a 1997 letter from various law professors objected that "amending
the Constitution in this way changes basic principles that have been followed throughout American history. . . . The
ability of states to decide for themselves is denied by this Amendment." n275 Similarly, the American Civil Liberties
Union warned that the Amendment "constitutes [a] significant intrusion of federal authority into a province traditionally
left to state and local authorities." n276
The inconsistency of many of these newfound friends of federalism is almost breathtaking. Where were these law
professors and the ACLU when the Supreme Court federalized a whole host of criminal justice issues ranging from the
right to counsel, to Miranda, to death penalty procedures, to search and seizure rules, among many others? The answer,
no doubt, is that they generally applauded nationalization of these criminal justice standards despite the adverse effect
on the ability of states "to decide for themselves." Perhaps the law professors and the ACLU have had some epiphany
and mean now to launch an attack on the federalization of our criminal justice system, with the goal of returning power
to the states. Certainly quite plausible arguments could be advanced in support of trimming the reach of some federal
doctrines. n277 But whatever the law professors and the ACLU may think, it is unlikely that we will ever retreat from
our national commitment to afford criminal defendants basic rights like the right to counsel. Victims are not asking for
any retreat, but for an extension--for a national commitment to provide basic rights in the process to criminal defendants
and to their victims. This parallel treatment works no new damage to federalist principles. n278
[*532] Precisely because of the constitutionalization and nationalization of criminal procedure, victims now find
themselves needing constitutional protection. In an earlier era, it may have been possible for judges to informally
accommodate victims' interests on an ad hoc basis. But the coin of the criminal justice realm has now become
constitutional rights. Without those rights, victims have not been taken seriously in the system. Thus, it is not a victims'
rights amendment that poses a danger to state power, but the lack of an amendment. Without an amendment, states
cannot give full effect to their policy decision to protect the rights of victims. Only elevating these rights to the Federal
Constitution will solve this problem. This is why the National Governor's Association--a long-standing friend of
federalism--has strongly endorsed the Amendment:
The rights of victims have always received secondary consideration within the U.S. judicial process,

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even though states and the American people by a wide plurality consider victims' rights to be
fundamental. Protection of these basic rights is essential and can only come from a fundamental change
in our basic law: the U.S. Constitution. n279
While the Victims' Rights Amendment will extend basic rights to crime victims across the country, it leaves
considerable room to the states to determine how to accord those rights within the structures of their own systems. For
starters, the Amendment extends rights to a "victim of a crime of violence, as these terms may be defined by law." n280
The "law" that will define these crucial terms will come from the states. Indeed, states retain a bedrock of control over
all victims' rights provisions--without a state statute defining a crime, there can be no "victim" for the criminal justice
system to consider. n281 The Amendment also is written in terms that will give the states considerable latitude to
accommodate legitimate local interests. For example, the Amendment only requires the states to provide "reasonable"
notice to victims, avoiding the inflexible alternative of mandatory notice (which, by the way, is required for criminal
defendants n282).
[*533] In short, federalism provides no serious objection to the Amendment. Any lingering doubt on the point
disappears in light of the Constitution's prescribed process for amendment, which guarantees ample involvement by the
states. The Victims' Rights Amendment will not take effect unless a full three-quarters of the states, acting through their
state legislatures, ratify the Amendment within seven years of its approval by Congress. n283 It is critics of the
Amendment who, by opposing congressional approval, deprive the states of their opportunity to consider the proposal.
This Article has attempted to review thoroughly the various objections leveled against the Victims' Rights
Amendment, finding them all wanting. While a few normative objections have been raised to the Amendment, the
values undergirding it are widely shared in our country, reflecting a strong consensus that victims' rights should receive
protection. Contrary to the claims that a constitutional amendment is somehow unnecessary, practical experience
demonstrates that only federal constitutional protection will overcome the institutional resistence to recognizing victims'
interests. And while some have argued that victims' rights do not belong in the Constitution, in fact the Victims' Rights
Amendment addresses subjects that have long been considered entirely appropriate for constitutional treatment.
Stepping back from these individual objections and viewing them as a whole reveals one puzzling feature that is
worth a few concluding observations. While some of the objections are thoughtfully advanced, n285 many are
contradicted by either specific language in the Amendment or real-world experience with the implementation of victims'
rights programs. I hasten to add that others have observed this phenomenon of unsustainable arguments being raised
against victims' rights. One careful scholar in the field of victim impact statements, Professor Edna Erez,
comprehensively reviewed the relevant empirical literature and concluded that the actual experience with [*534]
victim participatory rights "suggests that allowing victims' input into sentencing decisions does not raise practical
problems or serious challenges from the defense. Yet there is a persistent belief to the contrary, particularly among legal
scholars and professionals." n286 Erez attributed the differing views of the social scientists (who had actually collected
data on the programs in action) and the legal scholars primarily to "the socialization of the latter group in a legal culture
and structure that do not recognize the victim as a legitimate party in criminal proceedings." n287
The objections against the Victims' Rights Amendment, often advanced by attorneys, provide support for Erez's
hypothesis. Many of the complaints rest on little more than an appeal to retain a legal tradition that excludes victims
from participating in the process, to in some sense leave it up to the "professionals"--the judges, prosecutors, and
defense attorneys--to do justice as they see fit. Such entreaties may sound attractive to members of the bar, who not only
have vested interests in maintaining their monopolistic control over the criminal justice system, but also have grown up
without any exposure to crime victims or their problems. The "legal culture" that Erez accurately perceived is one that
has not made room for crime victims. Law students learn to "think like lawyers" in classes such as criminal law and
criminal procedure, where victims' interests receive no discussion. In the first year in criminal law, students learn in

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1999 Utah L. Rev. 479, *534

excruciating detail to focus on the state of mind of a criminal defendant, through intriguing questions about mens rea
and the like. n288 In the second year, students may take a course on criminal procedure, where defendants' and
prosecutors' interests under the constitutional doctrine governing search and seizure, confessions, and right to counsel
are the standard fare. Here, too, victims are absent. n289 The most popular criminal procedure casebook, for example,
spans some 877 pages; n290 [*535] yet, victims' rights appear only in two paragraphs, made necessary because in
California, a victims' rights initiative affected a defendant's right to exclude evidence. n291 Finally, in their third year,
students may take a clinical course in the criminal justice process, where they may be assigned to assist prosecutors or
defense attorneys in actual criminal cases. Not only are they never assigned to represent crime victims, but in
courtrooms they will see victims frequently absent, or participating only through prosecutors or the judicial apparatus,
such as probation officers.
Given this socialization, it is no surprise to find that when those lawyers leave law school, they become part of a
legal culture unsympathetic, if not overtly hostile, to the interests of crime victims. n292 The legal insiders view with
great suspicion demands from the outsiders--the barbarians, if you will--to be admitted into the process. A prime
illustration comes from Justice Stevens's concluding remarks in his dissenting opinion in Payne v. Tennessee. n293 He
found it almost threatening that the Court's decision admitting victim impact statements would be "greeted with
enthusiasm by a large number of concerned and thoughtful citizens." n294 For Justice Stevens, the Court's decision to
structure this rule of law in a way consistent with public opinion was "a sad day for a great institution." n295 To be
sure, the Court must not allow our rights to be swept away by popular enthusiasm. But when the question before the
Court is the separate and ancillary one of whether to recognize rights for victims, one would think that public consensus
on the legitimacy of those rights would be a virtue, not a vice. As Professor Gewirtz has thoughtfully concluded after
reviewing this same passage, "The place of public opinion cannot be dismissed so quickly, with 'a sad day' proclaimed
because a great public institution may have tried to retain the confidence of its public audience." n296
Justice Stevens's views were, on that day at least, n297 in the minority, but in countless other ways, his antipathy to
recognizing crime victims prevails in the day-to-day workings of our criminal justice system. Fortunately, there is a way
to change this hostility, to require the actors in the process to [*536] recognize the interests of victims of crime. As
Thomas Jefferson once explained,
Happily for us, . . . when we find our constitutions defective and insufficient to secure the happiness of
our people, we can assemble with all the coolness of philosophers, and set them to rights, while every
other nation on earth must have recourse to arms to amend or to restore their constitutions. n298
Our nation, through its assembled representatives in Congress and the state legislatures, should use the recognized
amending power to secure a place for victims' rights in our Constitution. While conservatism is often a virtue, there
comes a time when the case for reform has been made. Today the criminal justice system too often treats victims as
second-class citizens, almost as barbarians at the gates that must be repelled at all costs. The widely shared view is that
this treatment is wrong, that victims have legitimate concerns that can--indeed must--be fully respected for the system to
be fair and just. The Victims' Rights Amendment is an indispensable step in that direction, extending protection for the
rights of victims while doing no harm to the rights of defendants and of the public. The Amendment will not plunge the
criminal justice system into the dark ages, but will instead herald a new age of enlightenment. It is time for the
defenders of the old order to recognize these facts, to help swing open the gates, and welcome victims to their rightful
place in our nation's criminal justice system.
S. J. RES. 3
Proposing an amendment to the Constitution of the United States to protect the rights of crime victims.

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1999 Utah L. Rev. 479, *537

JANUARY 19, 1999
Mr. KYL (for himself, Mrs. FEINSTEIN, Mr. BIDEN, Mr. GRASSLEY, Mr. INOUYE, Mr. DEWINE, Ms.
Hampshire, Mr. SHELBY, Mr. HUTCHINSON, Mr. HELMS, Mr. FRIST, Mr. GRAMM, Mr. LOTT, and Mrs.
HUTCHISON) introduced the following joint resolution; which was read twice and referred to the Committee on the
Proposing an amendment to the Constitution of the United States to protect the rights of crime victims.
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 for all intents 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
"ARTICLE-"SECTION 1. A victim of a crime of violence, as these terms may be defined by law, shall have the rights:
[*538] "to reasonable notice of, and not to be excluded from, any public proceedings relating to the
"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
afforded to the convicted offender;
"to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon
or commutation of a sentence; n299
"to reasonable notice of a release or escape from custody relating to the crime;
"to consideration of the interest of the victim that any trial be free from unreasonable delay;
"to an order of restitution from the convicted offender;
"to consideration for the safety of the victim in determining any conditional release from custody
relating to the crime; and
"to reasonable notice of the rights established by this article.
"SECTION 2. 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 in future proceedings, without staying or continuing a trial. Nothing in this article shall give
rise to or authorize the creation of a claim for damages against the United States, a State, a political subdivision, or a
public officer or employee.

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1999 Utah L. Rev. 479, *538

"SECTION 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.
"SECTION 4. 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.
"SECTION 5. The rights and immunities established by this article shall apply in Federal and State proceedings,
including military proceedings to the [*539] 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."
While much speculation has been bandied about concerning the effect of victim impact statements on capital
sentences, surprisingly little hard research on the subject has been conducted. The available empirical research on
victim impact statements in noncapital cases has generally found, at most, a modest effect on sentence severity. n300
This Appendix offers some tentative empirical observations that support the same conclusion about victim impact
statements in capital cases.
In 1991, the Supreme Court specifically approved the admission of victim impact statements in capital cases in
Payne v. Tennessee. n301 This decision triggered a number of scholarly articles suggesting that the effect would be to
make it easier for prosecutors to obtain death sentences, n302 but empirical follow-up on this question has been scant.
One possible way of researching the assertion is simply to look at the total number of death sentences returned after
Payne to determine whether they increased. In the same vein, it may be useful to examine whether the number of death
sentences decreased after Booth v. Maryland, n303 the Supreme Court's decision four years earlier in 1987 barring
victim impact statements in capital cases. [*541] Such time series analyses have been used to investigate the impact of
other legal changes n304 and constitute a standard way of analyzing legal reforms. n305
The time series for death sentences returned in this country over the last quarter century is shown in Figure 1. n306
[*542] As the chart reveals, after an initial shake-out period in the mid-1970s, n307 the number of death sentences
imposed generally climbed through 1986. Then, in 1987, the Court held in Booth that victim impact statements could
not be used in capital cases. Death sentences declined slightly. Finally, in 1991, the Court reversed itself in Payne,
allowing such statements. Death sentences thereafter increased modestly before turning to a level only slightly above
that before Payne. The raw data would therefore suggest the possibility of a short term, meager association between
victim impact statements and death sentences.
A small note on timing is in order. Both Booth and Payne were handed down by the Court in mid-year (on June 15
and June 27 respectively). Thus, the vertical lines in Figure 1 depicting the "last pre-Booth year" and the "last
pre-Payne" year are drawn to show the last year in which death sentences were unaffected by the ensuing Supreme
Court decision, assuming the Court's decision affected capital cases as soon as it was announced. These timing
assumptions are open to question. It is possible that prosecutors "anticipated" Booth by restricting their use of victim
impact statements to avoid the possibility of reversal. The Court agreed to review the case on October 15, 1986, n308
so perhaps the last year entirely unaffected by Booth was 1985, not 1986. Also, Payne may not have resulted in the
immediate use of victim impact statements. Defendants might have continued to have been tried under the old law for
months afterwards because of the problem of giving notice to them that such evidence would be introduced n309 and of
adding authorizations for the use of impact statements. n310
Before a causal inference could be drawn that the fluctuations shown in Figure 1 are attributable to the Court's
decision on victim impact statements, [*543] alternate causes would need to be carefully and fully considered. n311 I
leave this task to others. One issue that should be examined is whether the number of homicides changed during the
period, particular homicides for which the death penalty was a serious prospect. n312 Another possibility is that

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1999 Utah L. Rev. 479, *543

internal changes in sentencing procedures within large states returning the most capital sentences caused the
fluctuations. n313 Still another obvious alternate causality is other Supreme Court decisions around the time of Booth
and Payne that might have made it easier or harder for prosecutors to obtain capital sentences. The Supreme Court death
penalty jurisprudence has not been, shall we say, a model of perfect consistency over time. At almost the same time that
the Court blocked the use of victim statements in Booth, it also increased the ability of defendants to introduce
mitigating evidence. In 1985, the Court held that defendants must be given access to a competent psychiatrist at trial
and sentencing if mental state is an issue. n314 In 1986, the Court significantly expanded the types of mitigating
evidence that defendants could introduce by invalidating contrary state evidentiary rules. n315 And in 1989, the Court
expanded the circumstances in which juries should be instructed about the effect of mitigating evidence. n316 It is
possible that these decisions, and not Booth, explain the 1987-1990 dip in death penalties. The Court also handed down
other decisions favorable to death penalty prosecutions at about the time of Payne that might explain the rise in death
penalties in recent years. n317
[*544] These and other potentially complicating factors would have to be assessed before any firm conclusions
could be reached about the aggregate death penalty data plotted in Figure 1. Nevertheless, even assuming that all other
factors but the Court's victim impact decisions could be ruled out as causes of the changes, the relative magnitude of the
changes appear to be, at most, modest. n318
Until we have further analysis of the data, lack of firm proof that Payne increased the number of death penalty
convictions should count heavily against Professor Bandes and others who argue against admitting victim impact
statements because of their effects on juries. n319 Allowing surviving family members to make impact statements
clearly improves the perceived fairness of the process n320 and we have no proof that juries have been influenced, let
alone unfairly influenced. n321
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental RightsProcedural Due ProcessScope of ProtectionCriminal Law &
ProcedureSentencingImpositionVictim StatementsCriminal Law & ProcedureSentencingRestitution

n1 See S.J. Res. 3, 106th Cong. (1999); see also S.J. Res. 44, 105th Cong. (1998) (adopting same list of
rights one year earlier). The current text of the Amendment is reprinted as Appendix A to this Article.
n2 See Announcement by President Bill Clinton with Introductions by Vice President Albert Gore and
Remarks by Attorney General Janet Reno and Other Speakers on Victims' Rights, June 25, 1996, available in
LEXIS, Federal News Service; see also Paul G. Cassell, Make Amends to Crime Victims, WALL ST. J., July 20,
1999, at A22 (noting recent endorsement by Vice President Gore).
n3 See S. REP. NO. 105-409, at 37 (1998) (approving Amendment by 11-to-6 vote). As of this writing, in
the 105th Congress the Amendment has been approved by the Subcommittee on the Constitution, Federalism,
and Property Rights of the Senate Judiciary Committee.
n4 Dan Carney, Crime Victims' Amendment Has Steadfast Support, But Little Chance of Floor Time,
CONG. QUART., July 30, 1998, at 1883.

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1999 Utah L. Rev. 479, *544

n5 I use the term "man" provocatively because certain aspects of the defense resist efforts by feminists to
provide justice to victims of rape and domestic violence, who are disproportionately women. See, e.g., Beverly
Harris Elliott, President of the National Coalition Against Sexual Assault, Balancing Justice: How the
Amendment Will Help All Victims of Sexual Assault (visited March 6, 1999)
<> (arguing that Amendment would encourage victims to report and
assist in prosecution of acts of sexual violence); Joan Zorza, Victims' Rights Amendment Empowers All Battered
Women (visited March 6, 1999) <> (stating that constitutional
amendment will help battered women by rebalancing criminal justice system); see also infra note 258 and
accompanying text (discussing women and children who have died from lack of notice of offender's release).
n6 A Proposed Constitutional Amendment to Protect Victims of Crime: Hearings on S.J. Res. 6 Before the
Senate Comm. on the Judiciary, 105th Cong. 141 (1997) [hereinafter 1997 Senate Judiciary Comm. Hearings]
(letter from various law professors opposing Amendment).
n7 Proposals for a Constitutional Amendment to Provide Rights for Victims of Crime: Hearings on H.J.
Res. 173 & H.J. Res. 174 Before the House Comm. on the Judiciary, 104th Cong. 143 (1996) [hereinafter 1996
House Judiciary Comm. Hearings] (statement of Ellen Greenlee, President, National Legal Aid and Defender
n8 A Proposed Constitutional Amendment to Establish a Bill of Rights for Crime Victims: Hearings on S.J.
Res. 52 Before the Senate Comm. on the Judiciary, 104th Cong. 101 (1996) [hereinafter 1996 Senate Judiciary
Comm. Hearings] (statement of Bruce Fein).
n9 See Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999
UTAH L. REV. 289 passim.
n10 See William T. Pizzi, Victims' Rights: Rethinking Our "Adversary System," 1999 UTAH L. REV. 349
n11 See Susan Bandes, Victim Standing, 1999 UTAH L. REV. 331 passim.
n12 See Steven J. Twist, The Crime Victims' Rights Amendment and Two Good and Perfect Things, 1999
UTAH L. REV. 369 passim.
n13 See, e.g., Robert P. Mosteller, The Unnecessary Victims' Rights Amendment, 1999 UTAH L. REV. 443
passim [hereinafter Mosteller, Unnecessary Amendment]; see also Robert P. Mosteller, Victims' Rights and the
United States Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 GEO. L.J. 1691, 1692
(1997) [hereinafter Mosteller, Recasting the Battle].
n14 See Lynne Henderson, Revisiting Victim's Rights, 1999 UTAH L. REV. 383 passim.
n15 Unless otherwise specifically noted, I will refer to the minority views of Senators Leahy, Kennedy, and
Kohl as the "dissenting Senators," although a few other Senators also offered their dissenting views.

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1999 Utah L. Rev. 479, *544

n16 S. REP. NO. 105-409, at 50 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
n17 1997 Senate Judiciary Comm. Hearings, supra note 6, at 140-41 (letter from various law professors).
n18 Mosteller, Recasting the Battle, supra note 13, at 1692.
n19 See Crime Victims Assistance Act, S. 1081, 105th Cong., 1st Sess. (1997) (providing victims with
enhanced rights in trial process); see also S. REP. NO. 105-409, at 77 (1998) (minority views of Sens. Leahy
and Kennedy) (defending this statutory protection of victims' rights).
n20 See, e.g., 1997 Senate Judiciary Comm. Hearings, supra note 6, at 141 (letters from various law
professors) ("Crime victims deserve protection, but this should be accomplished by statutes, not a constitutional
n21 See generally Twist, supra note 12, at 378 (noting frequency with which opponents of Amendment
endorse its goals).
n22 Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. TIMES,
July 6, 1998, at B5. For a more detailed exposition of Professor Tribe's views, see 1996 House Judiciary Comm.
Hearings, supra note 7, at 238 (letter from Prof. Tribe).
n23 S. REP. NO. 105-409, at 82 (1998) (additional views of Sen. Biden).
n24 Chief Justice Richard Barajas & Scott A. Nelson, The Proposed Crime Victims' Federal Constitutional
Amendment: Working Toward a Proper Balance, 49 BAYLOR L. REV. 1, 18-19 (1987) (quoting Deborah P.
Kelly, Have Victim Reforms Gone Too Far--or Not Far Enough?, 5 CRIM. JUST., Fall 1991, at 28, 28; Sarah
N. Welling, Victim Participation in Plea Bargains, 65 WASH. U.L.Q. 301, 355 (1987)) (internal footnotes
n25 As originally proposed, the Amendment extended to victims a broad right "to a final disposition of the
proceedings relating to the crime free from unreasonable delay." S.J. Res. 6, 105th Cong. § 1 (1997). It now
provides victims a narrower right to "consideration of the interest of the victim that any trial be free from
unreasonable delay." S.J. Res. 3, 106th Cong. § 1 (1999). This narrower formulation, limited to a "trial," avoids
the objection that an open-ended right to a speedy disposition could undercut a defendant's post-trial, habeas
corpus rights, particularly in capital cases. See, e.g., 1997 Senate Judiciary Comm. Hearings, supra note 6, at
155 (statement of Mark Kappelhoof, ACLU Legislative Counsel) (stating that "right of habeas corpus is also
threatened under [the Amendment]").
As originally proposed, the Amendment also promised victims a broad right to "be reasonably protected
from the accused." S.J. Res. 6, 105th Cong. (1997). It now provides victims a right to have the "safety of the
victim [considered] in determining [a] release from custody." S.J. Res. 3, 106th Cong. § 1 (1999). This narrower
formulation was apparently designed, in part, to respond to the objection that the Amendment might be
construed to hold offenders "beyond the maximum term or even indefinitely if they are found to pose a danger to
their victims." 1997 Senate Judiciary Comm. Hearings, supra note 6, at 155 (statement of Mark Kappelhoof,
ACLU Legislative Counsel).

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1999 Utah L. Rev. 479, *544

Professor Mosteller has argued that these particular changes, and several others like them, were designed to
move the Amendment away from providing aid to victims to instead provide nothing but a benefit to
prosecutors. See Robert P. Mosteller, Victims' Rights and the Constitution: Moving from Guaranteeing
Participatory Rights to Benefiting the Prosecution, 29 ST. MARY'S L.J. 1053, 1058 (1998). This strikes me as a
curious view, given that these changes specifically responded to concerns expressed by advocates of defendants'
rights, including Mosteller himself. See Mosteller, Recasting the Battle, supra note 13, at 1707 n.58. More
generally, it should be clear that the proposed Amendment is not predicated on the idea of providing benefits to
prosecutors. Not only has the Amendment been attacked as harming prosecution interests, see infra notes 127-47
and accompanying text, but it does not attempt to achieve such a favorite goal of prosecutors as overturning the
exclusionary rule. Cf. CAL. CONST. art. I, § 28 (victims' initiative restricting exclusion of evidence); OR.
CONST. art. I, § 42 (same), invalidated, Armatta v. Kitzhaber, 959 P.2d 49, 64 (Or. 1998) (holding that
initiative violated Oregon Constitution's single subject rule). See generally PRESIDENT'S TASK FORCE ON
VICTIMS OF CRIME, FINAL REPORT 24-28 (1982) (urging abolition of exclusionary rule on victim-related
n26 Until the opponents of the Amendment can establish any conflict between defendants' rights under the
Constitution and victims' rights under the Amendment, there is no need to address the subject of how courts
should balance the rights in case of conflict. Cf. S. REP. NO. 105-409, at 22-23 (1998) (explaining reasons for
rejecting balancing language in Amendment); A Proposed Constitutional Amendment to Protect Crime Victims:
Hearings on S.J. Res. 44 Before the Senate Comm. on the Judiciary, 105th Cong. 45 (1998) [hereinafter 1998
Senate Judiciary Comm. Hearings] (statement of Prof. Paul Cassell), discussed in Mosteller, Unnecessary
Amendment, supra note 13, at 464-65 (discussing how balancing language might be drafted if conflict were to be
n27 S. REP. NO. 105-409, at 66 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl) (emphasis
n28 Id. (emphasis added).
n29 S.J. Res. 3, 106th Cong. § 1 (1999).
n30 See S. 1081, 105th Cong. 1st Sess. § 101 (1997) (establishing right to be heard on issue of detention);
id. § 121 (establishing right to be heard on merits of plea agreement); id. § 122 (establishing enhanced right of
allocution at sentencing).
n31 S. REP. NO. 105-409, at 77 (1998) (minority views of Sens. Leahy and Kennedy).
n32 See, e.g., 143 CONG. REC. S8275 (daily ed. July 29, 1997) (statement of Sen. Kennedy) (supporting
statute expanding victims' rights to participate in all phases of process); id. at S8269 (statement of Sen. Patrick
Leahy) (supporting Crime Victims' Assistance Act).
n33 See Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah's Victims'
Rights Amendment, 1994 UTAH L. REV. 1373, 1394-96 (collecting citations to states granting victims a right to
be heard).

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1999 Utah L. Rev. 479, *544

n34 See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 364
n35 See id. at 390-93.
n36 See id. at 392-93. In a recent conversation, Professor Bandes stated that though her article focused on
the capital context, she did not intend to imply that victim impact statements ought to be admissible in
noncapital cases. Indeed, based on the proponents' argument that victim impact statements by relatives and
friends are needed because the homicide victim is, by definition, unavailable, she believes such statements
would seem even less defensible in nonhomicide cases. Personal Communication with Susan Bandes, Professor
of Law, DePaul University (Dec. 14, 1998). This extension of her argument seems unconvincing, as the case for
excluding victim statements is even weaker for noncapital cases. Not only are noncapital cases generally less
fraught with emotion, but the sentence is typically imposed by a judge, who can sort out any improper aspects of
victim statements. For this reason, even when victim impact testimony was denied in capital cases to juries,
courts often concluded that judges could hear the same evidence. See Lightbourne v. Dugger, 829 F.2d 1012,
1027 (11th Cir. 1987); State v. Beaty, 762 P.2d 519, 531 (Ariz. 1988); State v. Card, 825 P.2d 1081, 1089 (Idaho
1991); People v. Johnson, 594 N.E.2d 253, 270 (Ill. 1992); State v. Post, 513 N.E.2d 754, 759 (Ohio. 1987). It is
also hazardous to generalize about such testimony given the vast range of varying circumstances presented by
noncapital cases. See generally Stephen J. Schulhofer, The Trouble with Trials; the Trouble with Us, 105 YALE
L.J. 825, 848-49 (1995) (noting differences between victim participation in capital and noncapital sentencing
and concluding that "wholesale condemnation of victim participation under all circumstances is surely
n37 Several other articles have also focused on and carefully developed a case against victim impact
statements. See, e.g., Donald J. Hall, Victims' Voices in Criminal Court: The Need for Restraint, 28 AM. CRIM.
L. REV. 233, 235 (1991) (arguing that "the fundamental evil" associated with victim statements is "disparate
sentencing of similarly situated defendants"); Lynne N. Henderson, The Wrongs of Victim's Rights, 37 STAN. L.
REV. 937, 986-1006 (1985) (outlining why goals of criminal statements do not support victim participation in
sentencing). Because Professor Bandes's article is the most current, I focus on it here as exemplary of the critics'
n38 See Bandes, supra note 34, at 398.
n39 Id. (emphasis added).
n40 Id.
n41 See, e.g., Booth v. Maryland, 482 U.S. 496, 509-15 (1987) (attaching impact statement to opinion);
United States v. Nichols, No. 96-CR-68, 1997 WL 790551, at **1-47 (D. Colo. Dec. 29, 1997) (various victim
impact statements at sentencing of Terry Nichols); United States v. McVeigh, No. 96-CR-68, 1997 WL 296395,
at **1-53 (D. Colo. June 5, 1997) (various victim impact statements at sentencing of Timothy McVeigh); A
Federal Judge Speaks Out for Victims, AM. LAWYER, Mar. 20, 1995, at 4 (statement by Federal Judge
Michael Luttig at the sentencing of his father's murderers).

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1999 Utah L. Rev. 479, *544

1995 (1998).
JUSTICE: THE UNTOLD STORY OF THE ADAM WALSH CASE (1997). Professor Henderson describes
Walsh as "preaching [a] gospel of rage and revenge." Henderson, supra note 14, at [18]. This seems to me to
misunderstand Walsh's efforts, which Walsh has explained as making sure that his son Adam "didn't die in
vain." WALSH, supra, at 305. Walsh's Herculean efforts to establish the National Center for Missing and
Exploited Children, see id. at 131-58, is a prime example of neither rage nor revenge, but rather a desirable
public policy reform springing from a tragic crime.
THE ONION FIELD 169-71 (1973).
n53 501 U.S. 808 (1991).
n54 Bandes, supra note 34, at 361 (quoting Payne, 501 U.S. at 814-15).

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1999 Utah L. Rev. 479, *544

n55 Id. at 361.
n56 Id. at 401.
n58 Cf. Edna Erez, Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment
and Enhancement of Justice, CRIM. L. REV. (forthcoming 1999) ("Legal professionals [in South Australia] who
have been exposed to [victim impact statements] have commented on how uninformed they were about the
extent, variety and longevity of various victimizations, how much they have learned . . . about the impact of
crime on victims. . . .").
n59 See Brooks Douglass, Oklahoma's Victim Impact Legislation: A New Voice for Victims and Their
Families: A Response to Professor Coyne, 46 OKLA. L. REV. 283, 289 (1993) (offering example of jury denied
truth about full impact of a crime).
n60 In addition to allowing assessment of the harm of the crime, victim impact statements are also justified
because they provide "a quick glimpse of the life which a defendant chose to extinguish." Payne, 501 U.S. at
822 (internal quotation omitted). In the interests of brevity, I will not develop such an argument here, nor will I
address the more complicated issues surrounding whether a victim's family members may offer opinions about
the appropriate sentence for a defendant. See id. at 830 n.2 (reserving this issue); S. REP. NO. 105-409, at 28-29
(1998) (indicating that Amendment does not alter laws precluding victim opinion as to proper sentence).
n61 Bandes, supra note 34, at 402.
n62 The only empirical evidence Bandes discusses concerns the alleged race-of-the-victim effect found in
the Baldus study of Georgia capital cases in the 1980s. See id. This study, however, sheds no direct light on the
effect of victim impact statements on capital sentencing, as victim impact evidence apparently was not, and
indeed could not have been at that time, one of the control variables. See GA. CODE ANN. §§ 17-10-1.1 to -1.2
(1986) (barring victim impact testimony). Had victim impact evidence been one of the variables, it seems likely
that any race-of-the-victim effect would have been reduced by giving the jurors actual information about the
uniqueness and importance of the life taken, thereby eliminating the jurors' need to rely on stereotypic, and
potentially race-based, assumptions. In any event, there is no need to ponder such possibilities at length here
because the race-of-the-victim "effect" disappeared when important control variables were added to the
regression equations. See McCleskey v. Zant, 580 F. Supp. 338, 366 (D. Ga. 1984) (concluding that "there is no
support for a proposition that race has any effect in any single case"), aff'd in part and rev'd in part, 753 F.2d
877 (11th Cir. 1986), aff'd, 481 U.S. 279 (1987).
n63 Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98
COLUM. L. REV. 1538, 1556 (1998). The study concluded that jurors would be more likely to impose death if
the victim was a child, and that "extreme caution" was warranted in interpreting its findings. Id. It should be
noted that the study data came from cases between roughly 1986 and 1993, when victim impact statements were
not generally used. See id. at 1554. However, it is possible that a victim impact statement may have been
introduced in a few of the cases in the data set after the 1991 Payne decision. Electronic Mail from Stephen P.

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1999 Utah L. Rev. 479, *544

Garvey, Professor, Cornell Law School, to Prof. Paul G. Cassell (Feb. 11, 1999) (on file with author).
Garvey's methodology of surveying real juries about real cases seems preferable to relying on mock jury
research, which suggests that victim impact statements may affect jurors' views about capital sentencing. See
Edith Greene, The Many Guises of Victim Impact Evidence and Effects on Jurors' Judgments, PSYCHOL.,
CRIME & L. (forthcoming 1999) (discussing mock jury research); Edith Greene & Heather Koehring, Victim
Impact Evidence in Capital Cases: Does the Victim's Character Matter?, 28 J. APPLIED SOC. PSYCHOL.
145, 154 (1998) (finding support for hypothesis that victim impact evidence would affect jurors' capital
sentencing decisions); James Luginbuhl & Michael Burkhead, Victim Impact Evidence in Capital Trial:
Encouraging Votes for Death, 20 AM. J. CRIM. JUST. 1, 9 (1995) (finding support for hypothesis that victim
impact evidence would increase jurors' votes for death penalty). But cf. Ronald Mazzella & Alan Feingold, The
Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on
Judgments of Mock Jurors: A Meta-Analysis, 1994 J. APPLIED SOC. PSYCHOL. 1315, 1319-30 (1994)
(finding, through meta-analysis of previous research, that effects of victim characteristics on juror's judgments
were generally inconsequential). Whether mock jury simulations capture real-world effects is open to question
generally. See Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful
Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523, 600 (1999) (collecting evidence on this
point); see also Free v. Peters, 12 F.3d 700, 705-06 (7th Cir. 1994) (en banc) (finding that there is little "a priori
reason" to think that results of examination setting offer insight to abilities of real juries who spend days and
weeks becoming familiar with case). The concerns about the realism of mock jury research apply with particular
force to emotionally charged death penalty verdicts. See Mark Costanzo & Sally Costanzo, Jury Decision
Making in the Capital Penalty Phase, 16 LAW & HUM. BEHAV. 185, 191 (1992) ("The very nature of the
[death] penalty decision may render it an inappropriate topic for jury simulation studies.").
n64 See Booth, 482 U.S. at 509 (concluding that introduction of impact statement in sentencing phase of
capital murder violates Eighth Amendment).
n65 See Payne, 501 U.S. at 830 (overruling Booth).
n66 See infra Appendix B.
61 (1987) [hereinafter NIJ SENTENCING STUDY].
n68 Robert C. Davis & Barbara E. Smith, The Effects of Victim Impact Statements on Sentencing Decisions:
A Test in an Urban Setting, 11 JUST. QUART. 453, 466 (1994); accord ROBERT C. DAVIS ET AL., VICTIM
(1990) (concluding that result of study "lend[s] support to advocates of victim impact statements" since no
evidence indicates that these statements "put[] defendants in jeopardy [or] result in harsher sentences").
n69 Erez, supra note 58, at 5; accord Edna Erez, Victim Participation in Sentencing: And the Debate Goes
On . . ., 3 INT'L REV. OF VICTIMOLOGY 17, 22 (1994) [hereinafter Erez, Victim Participation] ("Research
on the impact of victims' input on sentencing outcome is inconclusive. At best it suggests that victim input has
only a limited effect."). For further discussion of the effect of victim impact statements, see, for example, Edna
Erez & Pamela Tontodonato, The Effect of Victim Participation in Sentencing on Sentence Outcome, 28

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1999 Utah L. Rev. 479, *544

JUSTICE SECTION VICTIM WITNESS PROJECT 159 (1989). See also Edna Erez & Leigh Roeger, The
Effect of Victim Impact Statements on Sentencing Patterns and Outcomes: The Australian Experience, 23 J.
CRIM. JUSTICE 363, 375 (1995) (Australian study finding no support for claim that impact statements increase
sentence severity); R. Douglas et al., Victims of Efficiency: Tracking Victim Information Through the System in
Victoria, Australia, 3 INT'L REV. VICTIMOLOGY 95, 103 (1994) (concluding that greater information about
nature of victimization makes little difference in sentencing); Edna Erez & Linda Rogers, Victim Impact
Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professionals, 39 BRIT. J.
CRIMINOLOGY 216, 234-35 (1999) (same).
n70 David D. Friedman, Should the Characteristics of Victims and Criminals Count?: Payne v. Tennessee
and Two Views of Efficient Punishment, 34 B.C. L. REV. 731, 749 (1993).
n71 See id. at 750 (reasoning that Payne rule "can be interpreted . . . as a way of reminding the jury that
victims, like criminals, are human beings with parents and children, lives that matter to themselves and others").
n72 See Erez & Tontodonato, supra note 69, at 469.
n73 See Erez, Perspectives of Legal Professionals, supra note 69, at 235 (discussing South Australian
study); Edna Erez, Victim Participation in Sentencing: Rhetoric and Reality, 18 J. CRIM. JUSTICE 19, 29
n74 See, e.g., Bandes, supra note 34, at 408 (arguing that victim impact statements play on our
pre-conscious prejudices and stereotypes).
n75 Booth, 482 U.S. at 505, overruled in Payne v. Tennessee, 501 U.S. 808, 830 (1991).
n76 See Paul Gewirtz, Victims and Voyeurs at the Criminal Trial, 90 NW. U. L. REV. 863, 882 (1996) ("If
courts were to exclude categories of testimony simply because some witnesses are less articulate than others, no
category of oral testimony would be admissible.").
n77 Payne, 501 U.S. at 826.
n78 See Boyde v. California, 494 U.S. 370, 382 n.5 (1990). See generally Susan N. Cornille, Comment,
Retribution's "Harm" Component and the Victim Impact Statement: Finding a Workable Model, 18 U.
DAYTON L. REV. 389, 416-17 (1993) (discussing Boyde).
n79 Cf. Walton v. Arizona, 497 U.S. 639, 674 (1990) (Scalia, J., concurring) (criticizing decisions allowing
such varying mitigating evidence on equality grounds).
n80 Booth, 482 U.S. at 518 (White, J., dissenting).

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1999 Utah L. Rev. 479, *544

n81 See Gewirtz, supra note 76, at 880-82 (developing this position); see also Beloof, supra note 9, at 291
(noting that this value is part of third model of criminal justice); PRESIDENT'S TASK FORCE ON VICTIMS
OF CRIME, FINAL REPORT 16 (1982) (for laws to be respected, they must be just--not only to accused, but to
victims as well).
n82 Booth, 482 U.S. at 520 (Scalia, J., dissenting); accord PRESIDENT'S TASK FORCE ON VICTIMS
OF CRIME, FINAL REPORT 77 (1982); Gewirtz, supra note 76, at 825-26.
n83 Tennessee v. Payne, 791 S.W.2d 10, 19 (1990), aff'd, 501 U.S. 808 (1991).
n84 See SHAPIRO, supra note 51, at 215.
n85 See id. at 215-16.
n86 See id.
n87 Weinstein was subpoenaed by the defense as a witness and therefore required to sit outside the
courtroom. See id. at 215-16.
n88 Id. at 319-20.
n89 A narrow, incomplete answer might be that neither the defendant's mother nor the victim's father should
be permitted to cry in front of the jury. But assuming an instruction from the judge not to cry, the question
would still remain why the defendant's mother could testify, but not the victim's father.
n90 See, e.g., ARIZ. REV. STAT. §§ 13-4410(C), -4424, -4426 (1989); MD. CODE art. 41, § 4-609(d)
(1993); N.J. STAT. ANN. § 2C:11-3c(6) (1995); UTAH CODE ANN. § 76-3-207(2) (1998). See generally
Payne, 501 U.S. at 821 (finding that Congress and most states allow victim impact statements); State v.
Muhammad, 678 A.2d 164, 177-78 (N.J. 1996) (collecting state cases upholding victim impact evidence in
capital cases). These laws answer Bandes's brief allusion to the principle of nulla poena sine lege (the
requirement of prior notice that particular conduct is criminal). See Bandes, supra note 34, at 396 n.177.
Because murderers are now plainly on notice that impact testimony will be considered at sentencing, the
principle is not violated. Murderers can also fully foresee the possibility of victim impact testimony. Murder is
always committed against "a 'unique' individual, and harm to some group of survivors is a consequence of a
successful homicidal act so foreseeable as to be virtually inevitable." Payne, 501 U.S. at 838 (Souter, J.,
concurring). Moreover, it is unclear the extent to which nulla poena sine lege is designed to regulate sentencing
decisions. The principle is one that "condemns judicial crime creation," Bynum v. State, 767 S.W.2d 769, 773
n.5 (Tex. Crim. App. 1989), but not the crafting of appropriate penalties for a previously defined crime like
capital murder.
n91 Professor Bandes and others also have suggested that the admission of victim impact statements would
lead to offensive mini-trials on the victim's character. See, e.g., Bandes, supra note 34, at 407-08. However, a
recent survey of the empirical literature concludes that "concern that defendants would challenge the content of
[victim impact statements] thereby subjecting victims to unpleasant cross examination on their statements has

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1999 Utah L. Rev. 479, *544

also not materialized." Erez, supra note 58, at 6. In neither the McVeigh trial nor the Nichols trial, for example,
did aggressive defense attorneys cross-examine the victims at any length about the impact of the crime.
n92 For general discussion of the harms caused by disparate treatment, see LINDA E. LEDRAY,
RECOVERING FROM RAPE 125 (2d ed. 1994) (noting that it is important in healing process for rape victims
to take back control from rapist and to focus their anger towards him); LEE MADIGAN & NANCY C.
(noting that during arraignment, survivors "first realized that it was not their trial, [and] that the attacker's rights
were the ones being protected."); Beloof, supra note 9, at 294-96 (explaining that victims are exposed to two
types of harms: the first from crime itself, and the second, from criminal process); Deborah P. Kelly, Victims, 34
WAYNE L. REV. 69, 72 (1987) (noting that "victims want[] more than pity and politeness; they want[] to
participate"); Marlene A. Young, A Constitutional Amendment for Victims of Crime: The Victims' Perspective,
34 WAYNE L. REV. 51, 58 (1987) (discussing ways in which victims feel aggrieved from unequal treatment).
n93 See generally SPUNGEN, supra note 52, at 10 (explaining concept of secondary victimization);
DOUGLAS E. BELOOF, Constitutional Civil Rights of Crime Victim Participation: The Emergence of
Secondary Harm as a Rational Principle, in VICTIMS IN CRIMINAL PROCEDURE 10-18 (1999) (explaining
concept of secondary harm);.
n94 Task Force on the Victims of Crime and Violence, Executive Summary: Final Report of the APA Task
Force on the Victims of Crime and Violence, 40 AM. PSYCHOLOGIST 107, 109 (1985).
n95 Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminal
Proceedings for Victims: Potential Effects on Psychological Functioning, 34 WAYNE L. REV. 7, 21 (1987)
(collecting evidence on this point); see also Ken Eikenberry, The Elevation of Victims' Rights in Washington
State: Constitutional Status, 17 PEPP. L. REV. 19, 26-32 (1989) (studying positive impacts of Washington's
victims' rights constitutional amendment); Erez, supra note 58, at 8-10 ("The cumulative knowledge acquired
from research in various jurisdictions . . . suggests that victims often benefit from participation and input.");
Jason N. Swensen, Survivor Says Measure Would Dignify Victims, THE DESERET NEWS (Salt Lake City),
Oct. 21, 1994, at B4 (noting anguish widow suffered when denied chance to speak at sentencing of husband's
n96 Erez, supra note 58, at 10.
n97 See id.
n98 Id. at 10; see also S. REP. NO. 105-409, at 17 (1998) (finding that victims' statements have important
"cathartic" effects).
n99 See Erez, supra note 58, at 10 ("The majority of victims of personal felonies wished to participate and
provide input, even when they thought their input was ignored or did not affect the outcome of their case.
Victims have multiple motives for providing input, and having a voice serves several functions for them. . . .")
(internal footnote omitted).

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1999 Utah L. Rev. 479, *544

n100 Technically, the right is "not to be excluded." See infra notes 136-39 and accompanying text
(explaining reason for this formulation).
n101 See Mosteller, Unnecessary Amendment, supra note 13, at 457-69; see also Mosteller, Recasting the
Battle, supra note 13, at 1698-1704.
n102 See S. REP. NO. 105-409, at 66 & n.44 (1998) (citing Mosteller).
n103 See Mosteller, Unnecessary Amendment, supra note 13, at 465 (finding that in specific situations,
defendant's "due process right to a fair trial may require exclusion of [victim-] witnesses").
n104 See Paul G. Cassell & Douglas E. Beloof, The Victim's Right to Attend the Trial 10-18 (1999)
(working manuscript, on file with author) (responding to Mosteller's view that victim's presence in courtroom
infringes on defendant's rights).
n105 Mosteller, Recasting the Battle, supra note 13, at 1699.
n106 Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., concurring in part and dissenting
in part).
n107 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980) (plurality opinion); see also Pizzi,
supra note 10, at [4] (noting importance of victim's right to attend trials).
n108 See Mosteller, Recasting the Battle, supra note 13, at 1701 n.29 ("I question whether the practice
[permitting multiple victim-eyewitnesses to remain in the courtroom and hear the testimony of others] would
violate a defendant's constitutional rights, although I acknowledge that the result is not entirely free from
doubt."). In his article in this Symposium, Professor Mosteller has amplified his view somewhat, taking the
position that "in extreme factual situations" a defendant will have a constitutional right to exclude witnesses. See
Mosteller, Unnecessary Amendment, supra note 13, at 465. His position, however, seems to rest largely on
policy grounds.
n109 Mosteller, Recasting the Battle, supra note 13, at 1699; see also Mosteller, Unnecessary Amendment,
supra note 13, at 449-50 (finding that "the most important reason" that victims' rights are not fully enforced is
lack of resources and personnel).
n110 See Mosteller, Recasting the Battle, supra note 13, at 1700 (arguing that, in cases of multiple victims,
"a substantial danger exists" that victim-witnesses will be influenced during testimony of others); Mosteller,
Unnecessary Amendment, supra note 13, at 465 (similar argument).
n111 See Erez, Victim Participation, supra note 69, at 29 (criticizing tendency of lawyers "to use an
atypical or extreme case to make their point" and calling for public policy in the victims area to be based on
more typical cases); cf. Robert P. Mosteller, Book Review, Popular Justice, 109 HARV. L. REV. 487, 487
(1995) (critiquing George P. Fletcher's book, WITH JUSTICE FOR SOME: VICTIMS' RIGHTS IN

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CRIMINAL TRIALS (1995), for "ignoring how the criminal justice system operates in ordinary" cases).
n112 See Cassell, supra note 104 (explaining how prior statements would make it difficult for victim to
change story).
n113 See S. REP. NO. 105-409, at 82 (1998) (additional views of Sen. Biden).
n114 See id. at 61 (minority views of Sens. Leahy, Kennedy, and Kohl) ("There is also the danger that the
victim's presence in the courtroom during the presentation of other evidence will cast doubt on her credibility as
a witness. . . . Whole cases . . . may be lost in this way.").
n115 See id. at 65 (minority views of Sens. Leahy, Kennedy, and Kohl) ("Accuracy and fairness concerns
may arise . . . where the victim is a fact witness whose testimony may be influenced by the testimony of
n116 S.J. Res. 3, 106th Cong. § 1 (1999).
n117 S. REP. NO. 105-409, at 66 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
n118 Mosteller, Unnecessary Amendment, supra note 13, at 473; see also Mosteller, Recasting the Battle,
supra note 13, at 1706-08 ("Legislation enacted under § 3 of the . . . Amendment to enforce the right to final
disposition free from unreasonable delay may conflict with the right to effective assistance of counsel and with
basic due process rights.").
n119 S.J. Res. 3, 106th Cong. § 1 (1999).
n121 S. REP. NO. 105-409, at 3 (1998); see also 1998 Senate Judiciary Comm. Hearings, supra note 26, at
37-38 (statement of Prof. Paul Cassell) (discussing factors that could be used to evaluate victims' claims of
unreasonable delay).
n122 See, e.g., 1997 Senate Judiciary Comm. Hearings, supra note 6, at 115-16 (statement of Paul G.
Cassell, Professor of Law, University of Utah College of Law) (describing such a case); see also Paul G. Cassell
& Evan S. Strassberg, Evidence of Repeated Acts of Rape and Child Molestation: Reforming Utah Law to
Permit the Propensity Inference, 1998 UTAH L. REV. 145, 146 (discussing case where defendant delayed trial
three years by refusing to hire counsel and falsely claiming indigency).
n123 See Cassell, supra note 33, at 1402-05 (providing illustration).
n124 Mosteller, Unnecessary Amendment, supra note 13, at 473.

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n126 Cf. Henderson, supra note 14, at 419 (conceding that "reasonableness" language might "allow judges
to ferret out instances of dilatory tactics while recognizing the genuine need for time," but concluding that
constitutional amendment is not needed to confer this power on judges).
n127 See, e.g., Scott Wallace, Mangling the Constitution: The Folly of the Victims' Rights Amendment,
WASH. POST, June 28, 1996, at A21 (op-ed piece from special counsel with National Legal Aid and Defender
Association warning that Amendment would harm police and prosecutors).
n128 See, e.g., Peter L. Davis, The Crime Victim's "Right" to a Criminal Prosecution: A Proposed Model
Statute for the Governance of Private Criminal Prosecutions, 38 DEPAUL L. REV. 329, 330 (1989) (proposing
statute to govern private criminal prosecutions). See generally DOUGLAS BELOOF, VICTIMS IN CRIMINAL
PROCEDURE 235-357 (1999) (comprehensively discussing current means of victim involvement in charging
process). Allowing victims to initiate their own prosecutions is no novelty, as it is consistent with the English
common-law tradition of private prosecutions, brought to the American colonies. See 1 SIR JAMES F.
STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 493-503 (1883); Shirley S. Abrahamson,
Redefining Roles: The Victims' Rights Movement, 1985 UTAH L. REV. 517, 521-22; Juan Cardenas, The Crime
Victim in the Prosecutorial Process, 9 HARV. J.L. & PUB. POL'Y 359, 384 (1986); Josephine Gittler,
Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 PEPP. L. REV.
117, 125-26 (1984); William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return
of the Victim, 13 AM. CRIM. L. REV. 649, 651-54 (1976).
n129 Beloof, supra note 9, at 296 (referring to HERBERT PACKER, THE LIMITS OF CRIMINAL
SANCTION 163 (1968)).
n130 For cogent explication of the law on this issue, see BELOOF, supra note 128, at 462-88 (1999). See
(recommending victim participation in plea negotiations).
effects of structured plea negotiations in which judge, defendant, victim, prosecutor, and defense attorney all
n132 See, e.g., S. REP. NO. 105-409, at 60-61 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
An illustration of this position is found in recent testimony by former federal prosecutor Beth Wilkinson.
She argued that if victims had been heard during the Oklahoma City bombing case they would have prevented a
government plea agreement with Michael Fortier and hurt the prosecution's case against Timothy McVeigh and
Terry Nichols. See Testimony of Beth A. Wilkinson Before the Senate Judiciary Comm. on the Proposed Victims'
Rights Amendment (Mar. 24, 1999) <> (cited in Mosteller,
Unnecessary Amendment, supra note 13, at 463 n.57). Wilkinson's argument is flawed because it assumes,
without giving any good reason, that the judge would have simply rejected the plea if the victims had opposed it.
In any event, the great majority of the victims would have supported the plea if the government had explained it

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1999 Utah L. Rev. 479, *544

to them. See Hearings on S.J. Res. 3 Before the Senate Comm. on the Judiciary, 106th Cong. (forthcoming
1999) [hereinafter 1999 Senate Judiciary Comm. Hearings] (statement of Marsha A. Kight, Director of Families
and Survivors United, Oklahoma City). Moreover, Fortier's testimony was not important to obtaining the
convictions of McVeigh and Nichols, as the jurors later made clear. See id.
If anything, the handling of the Fortier plea demonstrates that even federal statutes do not effectively protect
victims' rights. In an effort to ram the Fortier plea through, the prosecution did not notify the victims about it.
See id. Both of these failures were apparent violations of federal law. See 42 U.S.C. § 10606(b)(3) (1994)
(giving victims right "to be notified of court proceedings"); id. § 10606(b)(5) (giving victims right "to confer
with [the] attorney for the government"); see supra 1999 Senate Judiciary Comm. Hearings (statement of
Marsha Kight) (noting these violations of federal law).
n133 See, e.g., People v. Stringham, 253 Cal. Rptr. 484, 488-96 (Cal. App. 1988) (rejecting unwarranted
plea bargain).
n134 See BELOOF, supra note 128, at 462.
n135 Sometimes the argument is cast not in terms of the Amendment diminishing prosecutorial resources,
but rather victim resources. For example, Professor Henderson urges rejection of the Amendment on grounds
that "we need to concentrate on things that aid recovery" by spending more on victim assistance and similar
programs. Henderson, supra note 14, at 441; see also Lynne Henderson, Co-Opting Compassion: The Federal
Victim's Rights Amendment, 10 ST. THOMAS L. REV. 579, 606 (1998) (noting benefits of programs to help
victims deal with trauma). But there is no incompatibility between passing the Amendment and expanding such
programs. Indeed, if the experience at the state level is any guide, passage of the Amendment will, if anything,
lead to an increase in resources devoted to victim-assistance efforts because of their usefulness in implementing
the rights contained in the Amendment.
n136 S. REP. NO. 105-409, at 63 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
n137 Id. at 26. The government, of course, already provides travel and accommodation expenses for the
many victims who are witnesses in criminal cases.
n138 For right "to be present" formulations, see, for example, 42 U.S.C. § 10606(b)(4) (1994); ALASKA
CONST. art. I, § 24; ARIZ. CONST. art. 2, § 2.1(A)(3)-(4); IDAHO CONST. art. I, § 22(4), (6); ILL. CONST.
art. I, § 8.1; IND. CONST. art. I, § 13(b); MISS. CODE ANN. § 59-36-5(2) (1994); MO. CONST. art. I, §
32(1)(i); NEV. CONST. art. I, § 8(2)(b); N.M. CONST. art. II, § 24(A)(5); N.C. CONST. art. I, § 37(1)(a);
OKLA. CONST. art. II, § 34A; S.C. CONST. art. I, § 24(A)(3); UTAH CONST. art. I, § 28(1)(b); see also
ARK. CODE ANN. § 16-41-101 (1994) (Rule 616). For a right "to attend" formulation, see MICH. CONST. art.
I, § 24(1).
n139 An Alabama statute also uses this phrasing without reported deleterious consequences. See ALA.
CODE § 15-14-54 (1995) (recognizing victim's right "not [to] be excluded from court or counsel table during the
trial or hearing or any portion thereof.").
n140 See 42 U.S.C.A. 10608(a) (West Supp. 1998) (authorizing closed circuit broadcast of trials whose

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1999 Utah L. Rev. 479, *544

venue has been moved more than 350 miles). This provision was used to broadcast proceedings in the Oklahoma
City bombing trial in Denver back to Oklahoma City.
n141 See, e.g., NIJ SENTENCING STUDY, supra note 67, at 59 (stating that right to allocute in California
"has not resulted in any noteworthy change in the workload of either the courts, probation departments, district
attorneys' offices or victim/witness programs"); id. at 69 (finding no noteworthy change in workload of
California parole board); Erez, Victim Participation, supra note 69, at 22 ("Research in jurisdictions that allow
victim participation indicates that including victims in the criminal justice process does not cause delays or
additional expense."); see also DAVIS ET AL., supra note 68, at 69 (noting that expanded victim impact
program did not delay dispositions in New York).
at 92 (2d ed. 1991).
n144 S. REP. NO. 105-409, at 62 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
n145 The Arizona Amendment extends notification rights to all crime victims, not just victims of violent
crime as provided in the federal amendment. Compare ARIZ. CONST. art. II § 2.1(A)(3), (C), with S.J. Res. 3,
106th Cong. § 2 (1999).
n146 See Richard M. Romley, Constitutional Rights for Victims: Another Perspective, THE
PROSECUTOR, May 1997, at 7 (noting modest cost of state amendment in Phoenix); 1997 Senate Judiciary
Comm. Hearings, supra note 6, at 97 (1997) (statement of Barbara LaWall, Pima County Prosecutor) (noting
that cost has not been problem in Tucson).
105-409, at 39-40 (1998).
n148 Mosteller, Unnecessary Amendment, supra note 13.
n149 Id. at 449; see also Mosteller, Recasting the Battle, supra note 13, at 1711-12 (developing similar
n150 Tribe & Cassell, supra note 22, at B5; see, e.g., 1996 Senate Judiciary Comm. Hearings, supra note 8,
at 109 (statement of Steven Twist) ("There are victims of arson in Atlanta, GA, who have little or no say, as the
victims . . . of an earlier era had about their victimization."); id. at 30 (statement of John Walsh) (stating that
victims' rights amendments on state level do not work); id. at 26 (statement of Katherine Prescott) ("Victims'
roles in the prosecution of cases will always be that of second-class citizens" if victims' rights are only specified
in state statutes).

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n151 Tribe & Cassell, supra note 22, at B5.
n152 1996 House Judiciary Comm. Hearings, supra note 7, at 147.
n153 Mosteller, Unnecessary Amendment, supra note 13, at [4].
n154 See, e.g., 1998 Senate Judiciary Comm. Hearings, supra note 26, at 103-06 (statement of Marlene
n155 1997 Senate Judiciary Comm. Hearings, supra note 6, at 64 (statement of Att'y Gen. Reno).
LEGAL PROTECTION MAKE A DIFFERENCE? 1 (Dec. 1998) [hereinafter NIJ REPORT]. An earlier version
of essentially the same report is reprinted in 1997 Senate Judiciary Comm. Hearings, supra note 6, at 15.
n158 NIJ REPORT, supra note 157, at 4 exh.1.
RIGHTS 5 (1997) [hereinafter NVC RACE SUB-REPORT] ("In many instances non-white victims were less
likely to be provided those [crime victims'] rights. . . .").
n160 See Mosteller, Unnecessary Amendment, supra note 13, at 447 n.13.
n161 See NIJ REPORT, supra note 157, at 11.
n162 See Mosteller, Unnecessary Amendment, supra note 13, at 447 n.13 (citing Memorandum from Sam
McQuade, Program Manager, NIJ, to Jeremy Travis, Director, NIJ (May 16, 1997)).
FOR NIJ: POLICY, REQUIREMENTS, AND PROCEDURES 3 (1998) (listing procedures for NIJ's publication
process, including external peer review panel).
n164 See NIJ REPORT, supra note 157, at 3. Professor Mosteller criticizes the NIJ's reported 83% response
figure, suggesting that it was actually as low as 29%. See Mosteller, Unnecessary Amendment, supra note 13, at
447 n.13. I will not take time here to explain why I disagree with his 29% calculation, but simply press the point
that he offers no specific reason for believing that the basic finding of the NIJ would have been any different had
the response rate been higher.

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1999 Utah L. Rev. 479, *544

n165 See, e.g., HILLENBRAND & SMITH, supra note 69, at 112 (noting that prosecutors and victims
consistently report that victims are "not usually" given notice or consulted in significant proportion of cases);
Erez, Victim Participation, supra note 69, at 26 (finding that victims are rarely informed of right to make
statements and victim impact statements are not always prepared).
n166 United States v. Leon, 468 U.S. 897, 907-08 n.6 (1984); see also CRAIG M. BRADLEY, THE
FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 43-44 (1993) (worrying about effect of
exclusionary rule, if 5% of cases are dismissed due to Miranda violations and 5% are dismissed due to search
n167 FBI estimates suggest an approximate total of about 2,303,600 arrests for violent crimes each year,
broken down as follows: 729,900 violent crimes within the crime index (murder, forcible rape, robbery,
aggravated assault), 1,329,000 other assaults, 95,800 sex offenses, and 149,800 offenses against family and
REPORTS: CRIME IN THE UNITED STATES 1996, at 214 tbl.29 (1997). A rough estimate is that about 70%
of these cases will be accepted for prosecution, within the adult system. See Brian Forst, Prosecution and
Sentencing, in CRIME 363-64 (James Q. Wilson & Joan Petersilia eds., 1995). Assuming the Amendment
would benefit 2% of the victims within these charged cases produces the figure in text. For further discussion of
issues surrounding such extrapolations, see Paul G. Cassell, Miranda's Social Costs: An Empirical
Reassessment, 90 NW. U. L. REV. 387, 438-40; Paul G. Cassell, Protecting the Innocent from False
Confessions and Lost Confessions--And From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 514-16 (1998).
n168 Mosteller, Unnecessary Amendment, supra note 13, at 449.
n169 See S.J. Res. 3, 106th Cong. § 2 (1999). See generally Cassell, supra note 33, at 1418-21 (discussing
damages actions under victims' rights amendments).
n170 See U.S. CONST. art. V.
n171 Cf. 1 BRUCE ACKERMAN, WE THE PEOPLE passim (1990) (discussing "constitutional
n172 Erez, Victim Participation, supra note 69, at 29; see also WILLIAM PIZZI, TRIALS WITHOUT
WHAT WE NEED TO DO TO REBUILD IT 196-97 (1999) (discussing problems with American trial culture);
Pizzi, supra note 10, at 359-60 (noting trial culture emphasis on winning and losing that may overlook victims);
William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on
American Problems, 32 STAN. J. INT'L L. 37, 37-40 (1996) ("So poor is the level of communication that those
within the system often seem genuinely bewildered by the victims' rights movement, even to the point of
suggesting rather condescendingly that victims are seeking a solace from the criminal justice system that they
ought to be seeking elsewhere.").
n173 Mosteller, Unneccesary Amendment, supra note 13, at 449.

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n174 Id. at 447.
n175 NIJ REPORT, supra note 157, at 10.
n176 See supra note 159 and accompanying text (noting that minority victims are least likely to be afforded
rights today); cf. Henderson, supra note 14, at 421-22 (criticizing "lottery approach" to affording victims' rights).
n177 See, e.g., infra Part II.B (discussing victims' rights in Oklahoma City bombing case).
n178 Mosteller, Unnecessary Amendment, supra note 13, at 452.
n179 Id. at 453; see also S. REP. NO. 105-409, at 51-52 (1998).
n180 Cf. Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in
YALE KAMISAR ET AL., CRIMINAL JUSTICE IN OUR TIME 19 (1965) (famously developing this analogy
in context of police interrogation).
n181 See Henderson, supra note 14, at 429. Hopefully this situation may improve with the publication of
Professor Beloof's law school casebook on victim's rights, see BELOOF, supra note 128, which may encourage
more training in this area.
n182 See Susan Bandes, supra note 11, passim; see also Susan Bandes, The Negative Constitution: A
Critique, 88 MICH. L. REV. 2271, 2273 (1991) [hereinafter Bandes, The Negative Constitution] (discussing
courts' reluctance to review government inaction in protection of constitutional rights); Susan Bandes, The Idea
of a Case, 42 STAN. L. REV. 227, 229-30 (1990) (noting how courts limit and define issues in case).
n183 As shown in Part I.A, supra, victims' rights do not actually conflict with defendant's rights.
Frequently, however, it is the defendant's mere claim of alleged conflict, not carefully considered by the trial
court, that ends up producing (along with the other contributing factors) the denial of victims' rights.
n184 See Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in
the Right to Appeal, 57 U. CHI. L. REV. 1, 5-7 (1990) (examining consequences of asymmetric risk of legal
error in criminal cases); see also Erez & Rogers, supra note 69, at 228-29 (noting reluctance of South Australian
judges to rely on victim evidence because of appeal risk).
n185 See Paul G. Cassell, Fight for Victims' Justice is Going Strong, THE DESERET NEWS, July 10,
1996, at A7 (illustrating this problem with uncertain Utah case law on victim's right to be present).
n186 Mosteller, Unnecessary Amendment, supra note 13, at 464.
n187 See S.J. Res. 3, 106th Cong. § 2 (1999) ("Only the victim or the victim's legal representative shall
have standing to assert the rights established by this article. . . .").

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n188 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.).
n189 See Henderson, supra note 14, at 433-41.
n190 See id. at 434.
n191 See United States v. McVeigh, No. 96-CR-68, 1996 WL 366268, at *2 (D. Colo. June 26, 1996).
n192 Id. at **2-3 (discussing application of FED. R. EVID. 615).
n193 See 1997 Senate Judiciary Comm. Hearings, supra note 6, at 73 (statement of Marsha Kight).
n194 Motion of Marsha and Tom Kight et al. and the National Organization for Victim Assistance
Asserting Standing to Raise Rights Under the Victims' Bill of Rights and Seeking Leave to File a Brief as Amici
Curiae, United States v. McVeigh, No. 96-CR-68-M, 1996 WL 570841 (D. Colo. Sept. 30, 1996). I represented a
number of the victims on this matter on a pro bono basis, along with able co-counsel Robert Hoyt, Arnon Siegel,
and Karan Bhatia of the Washington, D.C. law firm of Wilmer, Cutler, and Pickering, and Sean Kendall of
Boulder, Colorado. For a somewhat fuller recounting of the victims' issues in the case, see 1997 Senate
Judiciary Comm. Hearings, supra note 6, at 106-13 (statement of Paul Cassell).
n195 42 U.S.C. § 10606(b)(4) (1994). The victims also relied on a similar provision found in the
authorization for closed circuit broadcasting of the trial, 42 U.S.C.A. § 10608(a) (West Supp. 1998), and on a
First Amendment right of access to public court proceedings, see Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 577 (1980) (finding First Amendment right of court access).
n196 See United States v. McVeigh, No. 96-CR-68, 1996 WL 578525, at **16-25 (D. Colo. Oct. 4, 1996).
n197 See id. at *16.
n198 See id. at *25.
n199 Id. at *24.
n200 See id.
n201 Petition for Writ of Mandamus, Kight et al. v. Matsch, No. 96-1484 (10th Cir. Nov. 6, 1996) (on file
with author).
n202 See United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997).
n203 Id. at 334-35.

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1999 Utah L. Rev. 479, *544

n204 See id. at 335; see supra note 195 (discussing right of access for press under First Amendment).
n205 See McVeigh, 106 F.3d at 333.
n206 See Order, United States v. McVeigh, No. 96-1469, 1997 WL 128893, at *3 (10th Cir. Mar. 11, 1997).
n207 See Brief for Amici Curiae Washington Legal Foundation and United States Senators Don Nickles and
48 Other Members of Congress, United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 14, 1997) (No.
96-1469) (on file with author) (warning that decision meant that victims of federal crimes will never be heard for
violations of their rights); Brief for Amici Curiae States of Oklahoma, Colorado, Kansas, New Mexico, Utah,
and Wyoming Supporting the Suggestion for Rehearing and the Suggestion for Rehearing En Banc by the
Oklahoma City Bombing Victims and the United States, United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb.
14, 1997) (No. 96-1469) (on file with author) (warning that decision created "an 'important problem' for the
administration of justice within the Tenth Circuit"); Brief for Amici Curiae National Victims Center, Mothers
Against Drunk Driving, the National Victims' Constitutional Amendment Network, Justice for Surviving
Victims, Inc., Concerns of Police Survivors, Inc., and Citizens for Law and Order, Inc., in Support of Rehearing,
United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 17, 1997) (No. 96-1469) (on file with author) (warning
that decision will "preclude anyone from exercising any rights afforded under the Victims' Bill of Rights").
n208 143 CONG. REC. H1050 (daily ed. Mar. 18, 1997) (statement of Rep. McCollum).
n209 See id. at H1068 (five members not voting).
n210 See 143 CONG. REC. S2509 (daily ed. Mar. 19, 1997) (statement of Sen. Nickles).
n211 See Pub. L. No. 105-6, codified at 18 U.S.C.A. § 3510 (West Supp. 1998).
n212 William J. Clinton, Statement by the President, Mar. 19, 1997 (visited May 17, 1999)
n213 See Memorandum of Marsha Kight et al. on the Victims Rights Clarification Act of 1997, United
States v. McVeigh, No. 96-CR-68-M, 1997 WL 144614, at *3 (D. Colo. Mar. 21, 1997).
n214 See Motion of Marsha Kight et al. for Hearing, United States v. McVeigh, No. 96-CR-68-M, 1997 WL
144564, at *1 (D. Colo. Mar. 21, 1997).
n215 See Order Amending Order Under Rule 615, United States v. McVeigh, No. 96-CR-68-M, 1997 WL
136343, at *3 (D. Colo. Mar. 25, 1997).
n216 Id.
n217 See id.

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n218 See Order Declaring Motion Moot, United States v. McVeigh, No. 96-CR-68-M, 1997 WL 136344, at
*1 (D. Colo. Mar. 25, 1997).
n219 See 1997 Senate Judiciary Comm. Hearings, supra note 6, at 111 (statement of Prof. Paul Cassell); id.
at 70 (statement of Marsha Kight).
n220 See id. at 111 (statement of Prof. Paul Cassell).
n221 See Request of the Victims of the Oklahoma City Bombing and the National Organization for Victim
Assistance for Clarification of the Order Amending the Order Under Rule 615, United States v. McVeigh, No.
96-CR-68-M, 1997 WL 159969, at **1, 2 (D. Colo. Apr. 4, 1997) (requesting that court clarify ruling in which
victim impact testimony could be denied).
n222 Id. at *2.
n223 See Motion of the Victims of the Oklahoma City Bombing to Reassert the Motion for a Hearing on the
Application of the Victim Rights Clarification Act of 1997, United States v. McVeigh, No. 96-CR-68-M, 1997
WL 312104, at *6 (D. Colo. June 2, 1997) (arguing for opportunity to participate in any argument or
constitutionality and application of Act).
n224 See Hearing on Victims Rights Clarification Act, United States v. McVeigh, No. 96-CR-68-M, 1997
WL 290019, at *7 (D. Colo. June 3, 1997) (concluding that statute does not "create[] standing for the persons
who are identified as being represented by counsel in filing that brief").
n225 See, e.g., Examination of Diane Leonard, United States v. McVeigh, No. 96-CR-68-M, 1997 WL
292341, at *4 (D. Colo. June 4, 1997) (testifying that she was not unduly influenced by trial proceedings).
n226 H.R. REP NO. 105-28, at 10 (1997) (emphasis added). Supporting this statement was the fact that,
while the Victims Bill of Rights apparently barred some civil suits by victims, 42 U.S.C. § 10606(c), the new
law contained no such provision. This was no accident. As the Report of the House Judiciary Committee
pointedly explained: "The Committee points out that it has not included language in this statute that bars a cause
of action by the victim, as it has done in other statutes affecting victims' rights." H.R. REP NO. 105-28 at 10
n227 143 CONG. REC. S2507 (daily ed. Mar. 19, 1997) (statement of Sen. Nickles).
UNITED STATES 8 (1991) (noting that crime is more likely to strike low-income families); cf. Henderson,
supra note 135, at 579 (noting that many crime victims come from disempowered groups).
n229 See United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997) (finding that victims lack
standing to challenge law).

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n230 S.J. Res. 3, 106th Cong. § 1 (1999).
n231 Id.
n232 Id. § 2.
n233 Mosteller, Unnecessary Amendment, supra note 13, at 460.
n234 S. REP. NO. 105-409, at 56 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl).
n235 Proposals to Provide Rights to Victims of Crime: Hearings on H.J. Res. 71 & H.R. 1322 Before the
House Comm. on the Judiciary, 105th Cong. 96 (1997) (statement of Bruce Fein).
n236 1996 Senate Judiciary Comm. Hearings, supra note 8, at 101 (statement of Bruce Fein).
n237 Id. at 100. For similar views, see, for example, Stephen Chapman, Constitutional Clutter: The Wrongs
of the Victims' Rights Amendment, CHI. TRIB., Apr. 20, 1997, at A21; Cluttering the Constitution, N.Y.
TIMES, July 15, 1996, at A12.
n238 Tribe & Cassell, supra note 22, at B5.
n239 U.S. CONST. amends. XIV, XV, XIX, XXVI.
n240 448 U.S. 554 (1980).
n241 See id. at 557 (stating that right to attend criminal trials is implicit in guarantees of First Amendment).
n242 See supra Part II.B.
n243 Compare United States v. McVeigh, 918 F. Supp. 1452, 1465-66 (W.D. Okla. 1996) (recognizing
press interest in access to documents), with United States v. McVeigh, 106 F.3d 325, 335-36 (10th Cir. 1997)
(finding that victims do not have standing to raise First Amendment challenge to order excluding them from
trial). See also United States v. McVeigh, 119 F.3d 806, 814-15 (10th Cir. 1997) (recognizing First Amendment
interest of press in access to documents, but sufficient findings made to justify sealing order).
n244 In this way, the Amendment does not detract from First Amendment liberties, but expands them. But
cf. Henderson, supra note 14, at 420 (suggesting that victims' rights arguably could affect First Amendment
liberties, but conceding that "advocates of the Amendment have not argued for a balancing of victim's rights
against the rights of the press").
n245 Id. at 386.

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n246 See id. at 396-400.
n247 Beloof, supra note 9, at 289; see also id. at 328 app. a (compiling victim participation laws from state
to state); Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United
States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. OF INT'L & COMP. L. 839,
868-72 (1997) (discussing fundamental nature of victims' rights); Note, Passing the Victims' Rights Amendment:
A Nation's March Toward a More Perfect Union, 24 CRIM. & CIV. CONFINEMENT 647, 681-85 (1998)
(same). See generally BELOOF, supra note 128, passim (legal case book replete with examples of victims'
rights in process).
n248 Henderson, supra note 14, at 397; see also 1996 House Judiciary Comm. Hearings, supra note 7, at
194 (statement of Roger Pilon) (stating that Amendment has "feel" of listing "'rights' not as liberties that
government must respect as it goes about its assigned functions but as 'entitlements' that the government must
affirmatively provide"); Bruce Shapiro, Victims & Vengeance: Why the Victims' Rights Amendment Is a Bad
Idea, THE NATION, Feb. 10, 1997, at 16 (suggesting that Amendment "upends the historic purpose of the Bill
of Rights").
n249 See Bandes, The Negative Constitution, supra note 182, at 2308-09 (suggesting that Constitution
should be read to recognize and protect affirmative rights).
n250 See Beloof, supra note 9, at 295 n.32.
n251 Perhaps some might quibble with this characterization as applied to a victim's right to an order of
restitution, contending that this is a right solely directed against deprivations perpetrated by private citizens.
However, the right to restitution is a right against government, as it is a right to "an order of restitution," an
order that can only be provided by the courts. In any event, even if the restitution right is somehow regarded as
implicating private action, it should be noted that the Constitution already addresses private conduct. The
Thirteenth Amendment forbids "involuntary servitude," U.S. CONST. amend. XIII, a provision that
encompasses private violation of rights. See, e.g., United States v. Kozminski, 487 U.S. 931, 942 (1988) (stating
that Thirteenth Amendment extends beyond state action). See generally Akhil Reed Amar & Daniel Widawsky,
Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359, 1365-68
(1992) (discussing contours of Thirteenth Amendment); Henderson, supra note 14, at 387-88 (noting "good
arguments" that Thirteenth Amendment "appl[ies] to the acts of individuals").
n252 See, e.g., 1996 Senate Judiciary Comm. Hearings, supra note 8, at 100 (statement of Bruce Fein)
(stating that defendants are subject to whims of majority); Henderson, supra note 14, at 400 (asserting that
victims' rights are protected through democratic process); Mosteller, supra note 13, at 474 (maintaining that
defendants are despised and politically weak, thus needing constitutional protection).
n253 See Andrew J. Karmen, Who's Against Victims' Rights? The Nature of the Opposition to Pro-Victim
Initiatives in Criminal Justice, 8 ST. JOHN'S J. OF LEGAL COMMENT. 157, 162-69 (1992) (stating that if
victims gain influence in criminal justice process, they will inevitably conflict with officials).
n254 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (stating that we should
be vigilant against attempts to infringe on free speech rights, unless danger and threat is immediate and clear);

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see also Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449,
449-52 (1985) (arguing that First Amendment should be targeted to protect free speech rights even at worst
n255 See Karmen, supra note 253, at 168-69 (explaining why criminal justice professionals are particularly
unlikely to honor victims' rights for marginalized groups).
n256 See NVC RACE SUB-REPORT, supra note 159, at 5 ("In many instances non-white victims were less
likely to be provided [crime victims'] rights. . . .").
n257 1996 Senate Judiciary Comm. Hearings, supra note 8, at 101 (statement of Bruce Fein); see also S.
REP. NO. 105-409, at 54 (1998) (minority views of Sens. Leahy, Kennedy, and Kohl) ("We should not diminish
the majesty of the Constitution. . . .").
Note, The Repeated Sufferings of Domestic Violence Victims Not Notified of Their Assailant's Pre-Trial Release
from Custody: A Call for Mandatory Domestic Violence Victim Notification Legislation, 34 J. FAM. L. 915,
932-33 (1996) (arguing for legislation that requires notification to victim when assailant is released from prison).
n259 See supra notes 92-99 and accompanying text (discussing how victim participation can have healing
n260 1997 Senate Judiciary Comm. Hearings, supra note 6, at 110 (statement of Paul Cassell) (quoting
n261 See supra notes 92-99 and accompanying text.
n262 S. REP. NO. 105-409, at 53 (1998) (reprinting Letter from George P. Kazen, Chief U.S. District
Judge, Chair, Comm. on Criminal Law of the Judicial Conference of the United States, to Sen. Edward M.
Kennedy, Senate Comm. on the Judiciary 2 (Apr. 17, 1997)).
n263 1996 House Judiciary Comm. Hearings, supra note 7, at 147 (statement of Ellen Greenlee, Nat'l Legal
Aid & Defender Assoc.).
n264 Cluttering the Constitution, N.Y. TIMES, July 15, 1996, at A12 (arguing that political expediency is
no excuse for amending Constitution).
n265 See S. REP. NO. 105-409, at 22-37 (1998) (considering specific analysis of each section of
n266 See id. at 50-51 (minority views of Sens. Leahy, Kennedy, and Kohl) (arguing that "courts will not
care much" for analysis in Senate Report).

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n267 See, e.g., U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 790 (1995).
n268 See U.S. CONST. amend. VI ("The accused shall enjoy the right to a . . . trial[] by an impartial jury. . .
n269 See Baldwin v. New York, 399 U.S. 66, 73-74 (1970) (holding that jury trial is required for petty
offenses as long as possible jail time exceeds six months).
n270 See McKeiver v. Pennsylvania, 403 U.S. 528, 549-51 (1971) (holding that jury trial is not required in
juvenile proceedings).
n271 See Williams v. Florida, 399 U.S. 78, 103 (1970) (holding that six-person jury satisfies Sixth
n272 See Schenck v. United States, 249 U.S. 47, 52 (1919) (noting that First Amendment does not allow
person to yell "Fire!" in crowded theater).
n273 Critics of the Amendment have been forced to use improbable examples to suggest that the
Amendment will create unintended difficulties. See 1997 Senate Judiciary Comm. Hearings, supra note 6, at
117-21 (statement of Paul Cassell). It is interesting on this score to note that the law professors opposed to the
Amendment were unable to cite any real-world examples of language in the many state victims' rights
amendments that has produced serious unintended consequences. See id. at 140 (letter from law professors);
1996 House Judiciary Comm. Hearings, supra note 7, at 225 (letter from law professors).
n274 S.J. Res. 3, 106th Cong. § 3 (1999).
n275 1997 Senate Judiciary Comm. Hearings, supra note 6, at 140-41 (letter from law professors); see also
Mosteller, Unnecessary Amendment, supra note 13, at 444 (suggesting that "flexible uniformity" may be
accomplished through federal legislation and incentives).
n276 1997 Senate Judiciary Comm. Hearings, supra note 6, at 159.
n277 See, e.g., Donald A. Dripps, Foreword: Against Police Interrogation--And the Privilege Against
Self-Incrimination, 78 J. CRIM. L. & CRIMINOLOGY 699, 701-02 (1988) (arguing for reduction of federal
involvement in Miranda rights); Barry Latzer, Toward the Decentralization of Criminal Procedure: State
Constitutional Law and Selective Disincorporation, 87 J. CRIM. L. & CRIMINOLOGY 63, 63-70 (1996)
(arguing that state constitutional development has reduced need for federal protections).
n278 If federalism were a serious concern of the law professors, one would also expect to see them
supporting language in the Amendment guaranteeing flexibility for the states. Yet, the professors found fault
with language in an earlier version of the Amendment that gave both Congress and the states the power to
"enforce" the Amendment. See 1997 Senate Judiciary Comm. Hearings, supra note 6, at 141 (letter from law

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n279 National Governors Association, Executive Committee Policy 23.1 ("Protecting Victims' Rights")
(effective winter 1997 to winter 1999) (visited Mar. 3, 1999) <>.
n280 S.J. Res. 3, 106th Cong. § 1 (1999) (emphasis added).
n281 See BELOOF, supra note 128, at 41-43 (discussing and listing various legal definitions of "victim").
n282 See United States v. Reiter, 897 F.2d 639, 642-44 (2d Cir. 1990) (requiring notice to apprise defendant
of nature of proceedings against him).
n283 See U.S. CONST. amend. V; S.J. Res. 3, 106th Cong. Preamble (1999); see also THE FEDERALIST
No. 39 (James Madison) (discussing process of amending Constitution).
n284 Cf. RICHARD B. BERNSTEIN, AMENDING AMERICA 220 (1993) (recalling defeat of Equal
Rights Amendment in states and observing that "the significant role of state governments as participants in the
amending process is thriving"); Mosteller, Unnecessary Amendment, supra note 13, at 451 n.21 (noting that
"unfunded mandates" argument is "arguably inapposite for a constitutional amendment that must be supported
by three-fourths of the states since the vast majority of states would have approved imposing the requirement on
n285 For three particularly thoughtful discussions of criticisms of the Amendment, see Bandes, supra note
11, passim; Mosteller, Unnecessary Amendment, supra note 13, passim; Henderson, supra note 14, passim.
n286 Erez, Victim Participation, supra note 69, at 28; accord Deborah P. Kelly & Edna Erez, Victim
Participation in the Criminal Justice System, in VICTIMS OF CRIME 231, 241 (Robert C. Davis ed., 2d ed.
n287 Id. at 29; see also Erez & Rogers, supra note 69, at 234-35 (noting similar barriers to implementing
victims reforms in South Australia); Edna Erez & Kathy Laster, Neutralizing Victim Reform: Legal
Professionals' Perspectives on Victims and Impact Statements passim (Dec. 16, 1998) (unpublished manuscript,
on file with author) (discussing how and why legal professionals resist reform of criminal justice process
through increased victim participation).
n288 For a good example of the standard criminal law curriculum, see ROLLIN M. PERKINS & RONALD
n289 For a comprehensive and cogent examination of the absence of victims in criminal procedure courses,
see Douglas E. Beloof, Are Your Criminal Procedure Students Out of Touch? A Review of Criminal Procedure
Casebooks for Material on the Role of the Crime Victim (unpublished manuscript, on file with author).
QUESTIONS (8th ed. 1994).

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n291 See id. at 60 (discussing CAL. CONST. art. I, § 28, the "truth-in-evidence" provision).
n292 One hopeful sign of impending change is the publication of an excellent casebook addressing victims
in criminal procedure. See BELOOF, supra note 128.
n293 501 U.S. 808 (1991).
n294 Id. at 867 (Stevens, J., dissenting).
n295 Id. (Stevens, J., dissenting).
n296 Gewirtz, supra note 76, at 893.
n297 Cf. South Carolina v. Gathers, 490 U.S. 805, 811-12 (1989) (finding victim impact statements in
capital cases unconstitutional); Booth v. Maryland, 482 U.S. 496, 508 (1987) (same).
n298 Thomas Jefferson, Letter to C.W.F. Dumas, Sept. 1787, reprinted in THE JEFFERSONIAN
CYCLOPIDIA 198 (John P. Foley ed., 1900).
n299 This clause was added during deliberations in the Subcommittee on the Constitution, Federalism, and
Property Rights.
n300 See supra notes 62-73 and accompanying text (asserting that empirical evidence suggests that victim
impact statements might have modest effect on sentence severity).
n301 501 U.S. 808, 832-33 (1991) (holding that Eighth Amendment does not prohibit State from choosing
to admit certain evidence with regard to victim's personal characteristics or impact of crime).
n302 See, e.g., Jonathan H. Levy, Note, Limiting Victim Impact Evidence and Argument After Payne v.
Tennessee, 45 STAN. L. REV. 1027, 1046 (1993) (asserting that victim impact statements will motivate jurors
to impose death penalties out of emotion); Beth E. Sullivan, Note, Harnessing Payne: Controlling the Admission
of Victim Impact Statements to Safeguard Capital Sentencing Hearings from Passion and Prejudice, 25
FORDHAM URB. L.J. 601, 630 (1998) (noting that victim impact statements create greater possibilities for
prosecutors to seek death penalty).
n303 482 U.S. 496, 502-03 (1987) (holding that victim impact statements create risk that "a death sentence
will be based on considerations that are 'constitutionally impermissible or totally irrelevant to the sentencing
n304 See, e.g., Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on
Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055, 1072-74 (1998) (using time series
analysis to consider effects of Miranda); Raymond A. Atkins & Paul H. Rubin, Effects of Criminal Procedure

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on Crime Rates: Mapping of the Consequences of the Exclusionary Rule passim (1998) (unpublished
manuscript, on file with author) (utilizing time series analysis to chart exclusionary rule's harmful effect on
crime rates).
n305 See Donald T. Campbell, Reforms as Experiments, 24 AM. PSYCHOLOGIST 409, 417 (1969)
(concluding that time series analysis is common method of investigating reform measures); D.J. Pyle & D.F.
Deadman, Assessing the Impact of Legal Reform by Intervention Analysis, 13 INT'L REV. L. & ECON. 193,
194-96 (1993) (concluding that time series analysis is common method for analyzing economic and social data).
PUNISHMENT 1997, at 13 (1998) [hereinafter CAPITAL PUNISHMENT (year)].
n307 In Furman v. Georgia, 408 U.S. 238, 256-57 (1972), the Court concluded that the death penalty as
then administered was arbitrary and capricious. States responded with new statutes more carefully defining
death penalty offenses, reflected in an increasing number of capital sentences from 1973 through 1975. In 1976,
the Court upheld some of these statutes but struck down those with mandatory features. Compare Gregg v.
Georgia, 428 U.S. 153, 206-08 (1976) (upholding Georgia's death penalty statute), with Woodson v. North
Carolina, 428 U.S. 280, 304-05 (1976) (invalidating North Carolina's mandatory death penalty statute). The
invalidation of those statutes likely accounts for the drop in death penalties in 1976 and 1977.
n308 479 U.S. 882, 882 (1986) (granting writ of certiorari).
n309 But cf. Free v. Peters, 12 F.3d 700, 703 (7th Cir. 1993) (holding that defendant could not argue against
application of Payne on ground that it was new rule); State v. Card, 825 P.2d 1081, 1088-90 (Idaho 1991)
(applying Payne retroactively).
n310 See, e.g., UTAH CODE ANN. § 76-3-207(2)(a)(iii) (Supp. 1998) (allowing use of impact statements);
Crime Victim Rights Amendments, ch. 352, § 5, 1995 Utah Laws 1361 (amending this provision).
n311 For an introduction to some of these issues, see Cassell & Fowles, supra note 304, at 1107-19; John J.
Donohue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147, 1149-51 (1998); Paul G.
Cassell & Richard Fowles, Falling Clearance Rates After Miranda: Coincidence or Consequence?, 50 STAN. L.
REV. 1181, 1181 (1998).
n312 Murder rates went up modestly from 1984 to 1991. See FED. BUREAU OF INVESTIGATION, U.S.
n313 For example, much of the 1986-87 drop in death penalties is apparently explained by changes in
Illinois. Compare CAPITAL PUNISHMENT 1986, supra note 306, at 5 tbl.4 (25 death sentences in Illinois in
1986), with CAPITAL PUNISHMENT 1987, supra note 306, at 6 tbl.4 (11 death sentences in Illinois in 1987).
Much of the 1990-91 rise in death penalties is apparently explained by changes in Florida. Compare CAPITAL
PUNISHMENT 1990, supra note 306, at 6 tbl.4 (31 death sentences in Florida in 1990), with CAPITAL
PUNISHMENT 1991, supra note 306, at 8 tbl.4 (45 death sentences in Florida in 1991).

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n314 See Ake v. Oklahoma, 470 U.S. 68, 84-87 (1985) (holding that denial of access to psychiatrist was
violation of due process).
n315 See Skipper v. South Carolina, 476 U.S. 1, 4-8 (1986) (excluding mitigating evidence violated Eighth
n316 See Penry v. Lynaugh, 492 U.S. 302, 337-40 (1989) (holding that sentencing body must be allowed to
consider mental retardation as mitigating factor).
n317 See, e.g., Graham v. Collins, 506 U.S. 461, 475-78 (1993) (restricting Penry); Johnson v. Texas, 509
U.S. 350, 369-73 (1993) (distinguishing Penry); Schad v. Arizona, 501 U.S. 624, 646-48 (1991) (holding that
defendant was not necessarily entitled to instructions on every lesser included offense).
n318 The 1986 data divided by the 1988 data (the first full year under Booth), suggests that death penalties
fell by 4% when victim impact evidence was banned in Booth. The 1992 data divided by the 1990 data (the first
full year under Payne), suggests that death penalties rose by 15% when victim impact evidence was allowed in
Payne. Using a longer time horizon, the 1997 data divided by the 1990 data suggests only a 2% rise in death
penalty convictions after Payne. These calculations assume, in addition to the many other caveats noted in text,
no confounding trends.
n319 See Susan Bandes, Reply to Paul Cassell: What We Know About Victim Impact Statements 1999
UTAH L. REV. 545 passim.
n320 See supra notes 81-90 and accompanying text.
n321 Cf. supra notes 27-99 and accompanying text (arguing that, even if Payne increased death sentences,
this was a just result).