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1. ARTICLE: Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light
of the Crime Victims' Rights Act, 2005 B.Y.U.L. Rev. 835
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DAVID SCHOEN
ARTICLE: Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed
Amendments in Light of the Crime Victims' Rights Act
Reporter
2005 B.Y.U.L. Rev. 835 *
2005
Length: 36451 words
Author: Paul G. Cassell*
* Professor of Law for the S.J. Quinney College of Law of the University of Utah and United States District Court Judge for
the District of Utah. Thanks to Doug Beloof, Janna Tucker Davis, Meg Garvin, Wendy Murphy, Judge James Orenstein, and
Steve Twist; to my able law clerks Ann Bauer, Tim Conde, Tyler Green, Felise Thorpe Moll, Justin Starr, and Stewart Young;
and especially to my wife Trish for all her support. I write this article as a law professor, not as a judge. It is not intended to
comment on any pending cases and implies no positive commitment on legal issues that may arise in cases that come before me
in my court.
Text
[*837]
I. Introduction
Crime victims are virtually absent from the Federal Rules of Criminal Procedure. The sixty federal rules comprehensively
cover every aspect of federal criminal proceedings - from initial appearance through preliminary hearing, arraignment,
acceptance of pleas, trial, and sentencing. Yet the rules substantively mention victims only once, briefly recognizing the right
of some victims to speak at sentencing. 1
The federal rules can no longer leave victims unmentioned. In October 2004, Congress passed and President Bush signed into
law the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act (CVRA).
2 The CVRA transforms crime victims into participants in the criminal justice process by (among other things) guaranteeing
them notice of court hearings, the right to attend those hearings, and the opportunity to testify at appropriate points in the
process. These new victims' rights will reshape the federal criminal justice system and force significant changes to the Federal
Rules of Criminal Procedure to reflect the victim's expanded role. This Article offers comprehensive proposals for changing the
federal rules to both implement the CVRA and reflect sound public policy. The CVRA dictates changes like these to the Federal
Rules of Criminal Procedure because only by integrating victims into the federal rules will Congress's goal of making victims
participants in the process be fully realized.
This Article is divided into five parts. Following this introduction, Part II reviews the current absence of victims from the
federal rules. Surprisingly, even where the rules cover issues of great concern to victims, victims somehow go unmentioned.
1
See Fed. R. Crim. P. 32(i)(4)(B); discussion infra note 3 and accompanying text.
2
Crime Victims' Rights Act, Pub. L. No. 108-405, 118 Stat. 2261 (2004) (codified at 18 U.S.C.A. 3771 (West 2004 & Supp. 2005)). The
CVRA was part of a much larger piece of legislation that addressed a variety of subjects, known as the "Justice for All Act." See generally
Steven J. Twist, On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, Nila Lynn Crime
Victims' Rights Act, 9 Lewis & Clark L. Rev. (forthcoming 2005).
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2005 B.Y.U.L. Rev. 835, *837
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Part II then discusses the crime victims' rights movement and concludes with a brief sketch of the events leading to the CVRA's
enactment.
[*838] Part III discusses why it is necessary to amend the federal criminal rules to incorporate victims. Although the CVRA is
a federal statute that automatically trumps any conflicting procedural rule, procedural rules drive day-to-day courtroom
practices. Given that Congress was particularly concerned about integrating victims into the fabric of the criminal justice
system, the Advisory Committee on Criminal Rules should amend the rules to directly reflect the CVRA's requirements.
Part IV provides a rule-by-rule analysis of the changes needed in the Federal Rules of Criminal Procedure to implement the
CVRA. Of particular importance is new language protecting crime victims' rights to be notified of and to be present and heard
at public criminal proceedings. Congress should also implement the right to notice in a new rule mandating that prosecutors
keep victims apprised of criminal proceedings. In addition, the rules should also reflect victims' rights to attend court
proceedings and to testify at bail, plea, and sentencing hearings. Part IV also discusses other significant changes needed to
conform the rules to the CVRA: defining "victim," giving victims notice before confidential information is subpoenaed,
allowing victims to be heard before cases are transferred to remote districts, giving victims access to relevant parts of the presentence
report, permitting courts to appoint counsel for victims, and protecting the victim's right to proceedings free from
unreasonable delay. Part V contains a brief conclusion.
II. The Missing Victims of Crimes
Crime victims are absent from the Federal Rules of Criminal Procedure. Yet this is not because victims lack vital interests in
criminal cases. As the CVRA recognizes, victims have vital concerns throughout the criminal process. This section recounts the
absence of victims from the federal criminal rules, then contrasts that absence with the aims of the victims' rights movement.
The movement has argued successfully before state legislatures and Congress for the recognition of crime victims' rights - with
these efforts culminating in the passage of the CVRA, protecting crime victims' rights in the federal system.
[*839]
A. The Victim's Absence from the Current Federal Criminal Rules
The sixty Federal Rules of Criminal Procedure provide the architecture for the entire federal criminal court process, including
initial appearance, preliminary hearing, arraignment, acceptance of pleas, trial, and sentencing. One would expect that the rules
would frequently mention crime victims, given the subjects - such as bail, scheduling, and restitution - that directly concern
victims. Yet amazingly, the current rules substantively use the word "victim" only a single time.
The single direct reference to victims is Rule 32(i)(4)(B), which directs that before imposing a sentence, "the court must
address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or
submit any information about the sentence." 3 The word "victim" appears in passing in only two other rules: Rule 12.4 requires
the government to disclose to the court any organizational "victim," 4 and the heading of Rule 38(e) mentions "Restitution"
and "Notice to Victims," but the text of the rule does not contain the term "victim." 5
Victims deserve far more than the single reference in Rule 32. While later parts of this Article work through the rules sectionby-section
to illustrate where victims have been unfairly ignored, 6 a few examples here will prove the point. The rules
currently fail to give victims any right to be heard regarding whether a judge should accept a plea, even though the judge must
evaluate the public interest in deciding whether to do so. 7 The rules fail to require notice to victims before their confidential
3
Fed. R. Crim. P. 32(i)(4)(B).
4
Id. at 12.4(a)(2).
5
Id. at 38(e) (mentioning "victim" in the heading of the rule).
6
See discussion infra Part IV.
7
See Fed. R. Crim. P. 11; discussion infra notes 148-53 and accompanying text.
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2005 B.Y.U.L. Rev. 835, *839
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information is subpoenaed from third parties - such as schools or medical providers - even though victims have compelling
privacy interests to protect. 8 And the rules do not protect the victim's right to attend trials, despite [*840] victims' long
history of having at least some protected interest in observing trials and other proceedings. 9
One provision conveniently encapsulates the surprising absence of victims from the rules: Rule 32(d)(2)(B). The drafters of this
rule 10 appear to have been so afraid to utter the word "victim" that they did not use the term even when describing the person
harmed by a crime. Rule 32(d)(2)(B) directs that a presentence report contain "verified information, stated in a
nonargumentative style, that assesses the financial, social, psychological, and medical impact on any individual against whom
the offense has been committed." 11 The phrasing of this provision is striking for several reasons. It eschews the
straightforward term "victim," preferring instead the obscuring phrase "individual against whom the offense has been
committed." The provision also uses the responsibility-obscuring passive voice in describing the individual "against whom" the
offense has been committed, leaving the reader to wonder who might have committed that offense (the defendant, perhaps?).
Interestingly, the provision requires that information about the victim be "verified." Fair enough - until one realizes that the
directly adjacent provision regarding information about the defendant lacks a similar verification requirement. 12 Why would
information about the victim need to be verified while information about the defendant would not? Finally, the provision
requires that victim information be stated in a "nonargumentative" style. Again, the adjacent defendant's provision contains no
such direction. 13 In short, even a rule that seemingly must mention victims - the rule dictating preparation of a presentence
report describing the crime - manages to avoid mentioning the word.
B. The Victims' Rights Movement
That victims are missing from the Federal Rules of Criminal Procedure exemplifies their treatment in the modern American
[*841] criminal justice system. As one commentator has described the situation, the victim is "seen at best as "the forgotten
man' of the system and, at worst, as being twice victimized, the second time by the very system to which he has turned for
justice." 14 The absence of victims conflicts with "a public sense of justice keen enough that it has found voice in a nationwide
victims' rights movement." 15
The crime victims' rights movement developed in the 1970s because of a perceived imbalance in the criminal justice system.
Led by feminist and civil rights activists, victims' advocates argued that the criminal justice system had become preoccupied
8
See Fed. R. Crim. P. 17; discussion infra notes 177-91, and accompanying text.
9
See Fed. R. Crim. P. 43; discussion infra notes 269-300 and accompanying text.
10
To be clear, Congress, not the Advisory Committee on Criminal Law and Procedure, drafted the language of this rule. See Victims of
Crime Act of 1984, Pub. L. No. 98-473, 98 Stat. 2014 (1984) (directly amending Rule 32).
11
Fed. R. Crim. P. 32(d)(2)(B) (emphasis added).
12
Id. at 32(d)(2)(A).
13
Id.
14
William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649, 650
(1976).
15
Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (internal quotation marks omitted). See generally Douglas Evan
Beloof, Paul G. Cassell & Steve J. Twist, Victims in Criminal Procedure 29-37 (2005); Shirley S. Abrahamson, Redefining Roles: The
Victims' Rights Movement, 1985 Utah L. Rev. 517; Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation
Model, 1999 Utah L. Rev. 289 [hereinafter Beloof, The Third Model of Criminal Process]; Paul G. Cassell, Balancing the Scales of Justice,
1994 Utah L. Rev. 1373, 1380-82; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 Miss. L.J. 514 (1982);
Erin Ana O'Hara, Victim Participation in the Criminal Process, 13 J.L. & Pol'y 229 (2005); William T. Pizzi & Walter Perron, Crime Victims
in German Courtrooms: A Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37 (1996).
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2005 B.Y.U.L. Rev. 835, *841
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with defendants' rights to the exclusion of crime victims' legitimate interests. 16 These advocates urged reforms to give more
attention to victims' concerns, including protecting the victim's right to be notified of court hearings, to attend those hearings,
and to be heard at appropriate points in the process.
The victims' rights movement received considerable impetus with the publication in 1982 of the Report of the President's Task
Force on Victims of Crime. 17 The Task Force concluded that the criminal justice system "has lost an essential balance … .
The system has deprived the innocent, the honest, and the helpless of its protection … . The victims of crime have been
transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed." 18
The Task Force advocated [*842] multiple reforms. It recommended that prosecutors assume the responsibility for keeping
victims notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea
bargains, sentences, and restitution. 19 The Task Force also urged that courts receive victim impact evidence at sentencing,
order restitution in most cases, and allow victims and their families to attend trials even if they are also called as witnesses. 20
In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims.
The Task Force proposed adding to the Sixth Amendment's protections for defendants' rights a provision allowing crime
victims to be present and heard: "Likewise, the victim, in every criminal prosecution shall have the right to be present and to be
heard at all critical stages of judicial proceedings." 21
In the wake of that recommendation, crime victims' advocates considered how best to pursue a federal constitutional
amendment that would protect victims' rights throughout the country. Recognizing the difficulty of obtaining the consensus
required to amend the United States Constitution, advocates decided to go to the states first to pursue state victims' rights
amendments. This "states-first" strategy 22 met with considerable success. To date, some thirty states have adopted victims'
rights amendments to their own state constitutions. 23 While these amendments take various forms, Arizona's amendment
illustrates the types of rights typically protected. The Arizona constitutional provision gives victims the broad right to "be
treated with fairness, respect, and dignity, and to [*843] be free from intimidation, harassment, or abuse, throughout the
criminal justice process." 24 It also specifically confers a right to "be present at, and, upon request, to be informed of all
criminal proceedings where the defendant has the right to be present." 25 The amendment further allows victims to be heard at
bail, plea, and sentencing hearings. 26
16
See generally Beloof, Cassell & Twist, supra note 15, at ch. 1; Douglas E. Beloof, The Third Wave of Crime Victims' Rights: Standing,
Remedy, and Review, 2005 BYU L. Rev. 255 [hereinafter Beloof, The Third Wave of Crime Victims' Rights]; Cassell, supra note 15, at 1381-
82.
17
President's Task Force on Victims of Crime, Final Report 114 (1982).
18
Id.
19
Id. at 63.
20
Id. at 72-73.
21
Id. at 114.
22
See S. Rep. No. 108-191, at 3 (2004), as reprinted in 2004 U.S.C.A.N.
23
Alaska Const. art. I, 24; Ariz. Const. art. II, 2.1; Cal. Const. art. I, 12, 28; Colo. Const. art. II, 16(a); Conn. Const. art. I, 8(b); Fla. Const.
art. I, 16(b); Idaho Const. art. I, 22; Ill. Const. art. I, 8.1; Ind. Const. art. I, 13(b); Kan. Const. art. 15, 15; La. Const. art. 1, 25; Md. Decl. of
Rights art. 47; Mich. Const. art. I, 24; Miss. Const. art. 3, 26(A); Mo. Const. art. I, 32; Neb. Const. art. I, 28; Nev. Const. art. I, 8(2); N.J.
Const. art. I, 22; N.M. Const. art. 2, 24; N.C. Const. art. I, 37; Ohio Const. art. I, 10(a); Okla. Const. art. II, 34; Or. Const. art. I, 42-43; R.I.
Const. art. I, 23; S.C. Const. art. I, 24; Tenn. Const. art. 1, 35; Tex. Const. art. I, 30; Utah Const. art. I, 28; Va. Const. art. I, 8-A; Wash.
Const. art. 1, 35; Wis. Const. art. I, 9(m). These amendments passed with overwhelming popular support.
24
Ariz. Const. art. II, 2.1(A)(1).
25
Id. 2.1(A)(3).
26
Id. 2.1(A)(4).
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The movement also successfully prodded the federal system to recognize victims' rights. In 1982 Congress passed the first
federal victims' rights legislation, the Victim and Witness Protection Act (VWPA). 27 The VWPA had three primary goals: (1)
to expand and protect the role of victims and witnesses in the criminal justice process; (2) to ensure that the federal government
used all available resources to protect and assist victims without infringing defendants' constitutional rights; and (3) to provide
a model for state and local legislation. 28 Since passage of the VWPA, Congress has remained active in this area of the law,
passing several acts further protecting victims' rights, such as the Victims of Crime Act of 1984, 29 the Victims' Rights and
Restitution Act of 1990, 30 the Violent Crime Control and Law Enforcement Act of 1994, 31 the Antiterrorism and Effective
Death Penalty Act of 1996, 32 and the Victim Rights Clarification Act of 1997. 33 Other federal statutes have been passed to
deal with specialized victim situations such as child victims and witnesses. 34
[*844] These statutes spawned guidelines for how federal prosecutors should treat crime victims. The VWPA required the
Attorney General to develop guidelines for the Department of Justice. 35 To implement this Act, the Attorney General
developed guidelines designed to assist victims during the criminal justice process, mandating protocol, separate waiting areas
at court, the prompt return of the victim's property, and victim training for law enforcement personnel. 36 The guidelines also
directed that prosecutors notify victims about available services, major case events, consultations with the prosecutor, and the
opportunity for consultation about the prosecution. 37 In 2000, Attorney General Reno updated and expanded the guidelines.
The revised guidelines heightened the notification requirements, requiring prosecutors and law enforcement agents to notify
victims of important criminal justice events and to confer with victims about important decisions in the process. 38
Among the federal victims' statutes, the Victims' Rights and Restitution Act of 1990 is noteworthy. This Act purported to create
a comprehensive list of victims' rights in the federal criminal justice process. It commanded that "[a] crime victim has the
following rights" and then listed various procedural rights, including the right to "be treated with fairness and with respect for
the victim's dignity and privacy," 39 to "be notified of court proceedings," 40 to "confer with [the] attorney for the Government
in the case," 41 and to attend court proceedings even if called as a witness. 42 The statute also directed the Justice Department
27
Pub. L. No. 97-291, 96 Stat. 1248 (1982) (codified as amended in scattered sections of 18 U.S.C.).
28
Id.
29
Pub. L. No. 98-473, 98 Stat. 2170 (1984) (codified as amended at 42 U.S.C. 10601-03 (2000); 18 U.S.C. 3013; id. 3671).
30
Pub. L. No. 101-647, 104 Stat. 4820 (1990) (codified as amended at 42 U.S.C. 10601, 10606-07).
31
Pub L. No. 103-322, 108 Stat. 1796 (1994) (codified as amended in scattered sections of U.S.C.).
32
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of U.S.C.).
33
Pub. L. No. 105-6, 111 Stat. 12 (codified as amended at 18 U.S.C. 3510).
34
See, e.g., 18 U.S.C. 3509 (protecting rights of child victim-witnesses); Pub L. No. 101-647, 104 Stat. 4789 (1990).
35
Victim and Witness Protection Act, Pub. L. No. 97-291, 6(a), 96 Stat. 1248, 1252 (1982).
36
U.S. Dep't of Justice, Office of the Att'y Gen., Attorney General Guidelines for Victim and Witness Assistance (1995).
37
Id.
38
U.S. Dep't of Justice, Office of the Att'y Gen., Attorney General Guidelines for Victim and Witness Assistance 31-37 (2000) [hereinafter
2000 A.G. Guidelines]. The Guidelines were recently revised. See U.S. Dept. of Justice, Office for Victims of Crime, Attorney General
Guidelines for Victim and Witness Assistance (2005) [hereinafter 2005 A.G. Guidelines].
39
42 U.S.C. 10606(b)(1) (repealed 2004).
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2005 B.Y.U.L. Rev. 835, *844
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to make "its best efforts" to ensure [*845] that victims' rights were protected. 43 Yet this federal statute never successfully
integrated victims into the federal criminal justice process and instead became something of a dead letter. Because Congress
passed the CVRA in 2004 to remedy the problems with the 1990 Act, a brief review of the law's shortcomings is valuable.
Curiously, the 1990 Victims' Rights and Restitution Act was codified in Title 42 of the United States Code - the Title dealing
with "Public Health and Welfare." Such placement effectively limited the Act's effectiveness because federal practitioners
reflexively consult Title 18, the Title that covers "Crimes and Criminal Procedure," 44 for guidance on criminal law issues.
More prosaically, federal criminal enactments are bound together in a single West publication entitled the Federal Criminal
Code and Rules. This publication is carried to court by prosecutors and defense attorneys and is on the desk of most federal
judges. Because West Publishing never included the Victims' Rights Act in this book, the statute was essentially unknown even
to experienced judges and attorneys. 45
The prime illustration of the ineffectiveness of the Victims' Rights and Restitution Act comes from the Oklahoma City
bombing case. 46 While one might expect victims' rights would have been fully protected during such a high profile trial, in
fact victims were denied one fundamental right: the right to observe court proceedings. During a pretrial motion hearing, the
district court sua sponte precluded any victim who wished to provide victim impact testimony at sentencing from observing
proceedings in the case. 47 The court based its ruling on Rule 615 of the Federal Rules of Evidence - the so-called "Rule on
Witnesses." 48 Thirty-five victims and survivors of [*846] the bombing then filed a motion for reconsideration. 49 They
noted that the district court apparently had overlooked the Victims' Rights Act giving victims the right "to be present at all
public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially
affected if the victim heard other testimony at trial." 50 The district court denied the motion for reconsideration. 51 It
concluded that victims present during court proceedings would not be able to separate the "experience of trial" from "the
experience of loss from the conduct in question," and, thus, their testimony at a sentencing hearing would be inadmissible. 52
Unlike the original ruling, which was explicitly premised on Rule 615, the later ruling was more ambiguous, alluding to
concerns under the Constitution, the common law, and the rules of evidence. 53
40
Id. 10606(b)(3) (repealed 2004).
41
Id. 10606(b)(5) (repealed 2004).
42
Id. 10606(b)(4) (repealed 2004). Testifying victims can attend proceedings unless the victim's testimony "would be materially affected" by
hearing other testimony at trial. Id.
43
Id. 10606(a) (repealed 2004).
44
18 U.S.C. (2000).
45
Last year, I wrote a letter to West Publishing requesting that they include the law in their book. That request became moot with the passage
of the CVRA, which moved victims' rights from obscurity in Title 42 to centrality in Title 18, thereby guaranteeing them a spot in the West
publication.
46
See generally Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment, 1999 Utah L. Rev. 479,
515-22 (discussing the Oklahoma City bombing case in greater detail).
47
See United States v. McVeigh, No. 96-CR-68, 1996 WL 366268, at 2 (D. Colo. June 26, 1996).
48
Id. at 2-3 (discussing application of Fed. R. Evid. 615).
49
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.
50
42 U.S.C. 10606(b)(4) (1994) (repealed 2004). 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).
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The victims subsequently 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. 54 Three months later, a Tenth Circuit panel rejected the victims' claims. 55 The circuit
found "a number of problems with the excluded witnesses' reliance on the Victims' Rights Act." 56 Indeed, the circuit found
that the Act created no obligations for courts:
[*847]
The statute charily pledges only the "best efforts" of certain executive branch personnel to secure the rights listed. The district
court judge, a judicial officer not bound in any way by this pledge, could not violate the Act. Indeed, the Act's prescriptions
were satisfied once the government made its arguments against sequestration - before the district court even ruled. 57
Efforts by both the victims and the Department of Justice to obtain a rehearing were unsuccessful, 58 despite the support of
separate briefs urging such a 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. 59
In the meantime, the victims, supported by the Oklahoma Attorney General's Office, sought remedial legislation in Congress
clearly providing that victims should not have to decide between testifying at sentencing or watching the trial. A bill was
introduced to provide that watching a trial in a capital case does not constitute grounds for denying a victim the chance to
provide an impact statement. In a matter of weeks, Congress passed the Victims Rights Clarification Act of 1997, 60 but even
that specific statute failed to protect the bombing victims' rights. The district court in the Oklahoma City case found that the
statute had constitutional problems. 61
Because of the difficulty accompanying the statutory protection of victims' rights, victims advocates decided to press for a
federal constitutional amendment. They argued that the statutory [*848] protections could not sufficiently guarantee victims'
rights. In their view, such statutes "frequently fail to provide meaningful protection whenever they come into conflict with
bureaucratic habit, traditional indifference, [or] sheer inertia." 62 As the Justice Department reported:
Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate.
Victims' rights advocates have sought reforms at the state level for the past [twenty] years, and many states have responded
51
McVeigh, 1996 WL 366268 at 25.
52
Id. at 24.
53
See id.
54
Petition for Writ of Mandamus, Kight et al. v. Matsch, No. 96-1484 (10th Cir. Nov. 6, 1996) (on file with author).
55
United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997), superseded by statute, 18 U.S.C. 3510.
56
Id. at 334-35.
57
Id. at 335 (internal citation omitted).
58
See Order, United States v. McVeigh, No. 96-1469, 1997 WL 128893, at 3 (10th Cir. Mar. 11, 1997).
59
See Brief for Amici Curiae Washington Legal Foundation and United States Senator Don Nickles and 48 Other Members of Congress,
United States v. McVeigh, 106 F.3d 325 (10th Cir. Feb. 14, 1997) (No. 96-1469); 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);
Brief for Amici Curiae National Victims Center, Mothers Against Drunk Driving, 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).
60
Pub. L. No. 105-6, 111 Stat. 12 (1997).
61
See generally Cassell, supra note 46, at 519-20 (recounting problems).
62
Laurence H. Tribe & Paul G. Cassell, Embed the Rights of Victims in the Constitution, L.A. Times, July 6, 1998, at B5.
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2005 B.Y.U.L. Rev. 835, *848
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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. 63
To place victims' rights in the Constitution, victims advocates - led most prominently by the National Victims Constitutional
Amendment Network 64 - approached the President and Congress regarding a federal amendment. 65 On April 22, 1996,
Senators Kyl and Feinstein with the backing of President Clinton introduced a federal victims' rights amendment. 66 The
amendment was intended to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of
victim participation in the administration of criminal justice that was the birthright of every American at the founding of our
Nation." 67 A companion resolution was introduced in the House of Representatives. 68 The proposed amendment embodied
seven core principles: (1) the right to notice of proceedings, (2) the right to be present at the proceedings, (3) the right to be
heard, (4) the right to notice of the defendant's [*849] release or escape, (5) the right to restitution, (6) the right to a speedy
trial, and (7) the right to reasonable protection. In a later resolution, an eighth principle was added: the right to standing to
enforce these rights. 69 The 104th Congress did not pass the amendment.
On January 21, 1997, the opening day of the first session of the 105th Congress, Senators Kyl and Feinstein reintroduced the
victims' rights amendment. 70 A series of hearings were held that year in both the House and the Senate. 71 Kyl and Feinstein
reintroduced the amendment the following year. 72 The Senate Judiciary Committee held hearings 73 and passed the proposed
amendment out of committee. 74 Yet again, the full Senate did not consider the amendment.
In 1999, Senators Kyl and Feinstein again proposed the amendment, 75 and on September 30, 1999, the Judiciary Committee
voted, as before, to send the amendment to the full Senate. 76 But on April 27, 2000, after three days of floor debate, the
amendment was shelved when it became clear that its opponents, who objected to constitutionalizing victims' rights, possessed
the necessary votes to sustain a filibuster. 77 At the same time, hearings on the companion measure were held in the House. 78
63
Focusing on the Administration of Justice and the Enforcement of Laws: Dep't of Justice Oversight Hearing Before the S. Judiciary
Comm., 104th Cong. 23-24 (1997) (statement of Janet Reno, Att'y Gen. of the United States).
64
See http://www.nvcan.org. See generally Twist, supra note 2.
65
For a comprehensive history of victims' efforts to pass a constitutional amendment, see Twist, supra note 2.
66
S.J. Res. 52, 104th Cong., 2d Sess. (1996).
67
S. Rep. No. 108-191, at 1-2 (2003); see also S. Rep. No. 106-254 (2000).
68
H.R.J. Res. 174, 104th Cong., 2d Sess. (1996).
69
See S.J. Res. 65, 104th Cong., 2d Sess. (1996).
70
S.J. Res. 6, 105th Cong., 1st Sess. (1997).
71
See, e.g., Victims' Rights Amendment: Hearings Before the Sen. Judiciary Comm., 105th Cong., 2d Sess. (1997).
72
S.J. Res. 44, 105th Cong., 2d Sess. (1998).
73
Victim's Rights Amendment: Hearings Before the Sen. Judiciary Comm., 105th Congress (1998).
74
See 144 Cong. Rec. S11,010 (daily ed. Sept. 28, 1998) (statement of Sen. Kyl).
75
S.J. Res. 3, 106th Cong., 1st Sess. (1999).
76
146 Cong. Rec. S2966 (daily ed. Apr. 27, 2000).
77
See id.
78
H.R.J. Res. 64, 106th Cong., 1st Sess. (2002).
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2005 B.Y.U.L. Rev. 835, *849
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Discussions about the Amendment began again soon after the 2000 presidential elections. On April 15, 2002, Senators Kyl and
Feinstein reintroduced the Amendment in the Senate, 79 and the following day, President Bush announced his support. 80 On
May 1, [*850] 2002, a companion measure was proposed in the House. 81 On January 7, 2003, Senators Kyl and Feinstein
proposed the amendment as Senate Judiciary Resolution 1. The Senate Judiciary Committee held hearings in April of that year,
82 followed by a written report supporting the Amendment. 83 Shortly thereafter, a motion to proceed to consideration of the
measure was withdrawn when proponents determined they did not have the sixty-seven votes necessary to pass the
amendment. After it became clear that the necessary super-majority votes to amend the Constitution were not attainable,
victims' advocates turned their attention to enacting a comprehensive victims' rights statute.
C. The Crime Victims' Rights Act
The Crime Victims' Rights Act ultimately resulted from a decision by the victims' movement to seek a more comprehensive
and enforceable federal statute rather than to continue pursuing the more ambitious goal of a federal constitutional amendment.
In April 2004, victims advocates met with Senators Kyl and Feinstein to decide whether to push yet again for a federal
constitutional amendment. Conceding that the amendment had only majority support in Congress rather than the necessary
super-majority, the advocates decided to press for a far-reaching federal statute protecting victims' rights in the federal criminal
justice system. 84 In exchange for backing off from the federal amendment in the short term, victims' advocates received nearuniversal
congressional support for a "broad and encompassing" statutory victims' bill of rights. 85 This new approach not only
established a string of victims' rights but also provided funding for victims' legal services and created remedies for the violation
of victims' rights. 86 The victims' [*851] movement is currently evaluating the success of the statute before deciding whether
to continue pushing for a federal amendment. 87
The Crime Victims' Rights Act gives victims "the right to participate in the system." 88 To facilitate such participation, the Act
grants victims eight specific rights:
(1) The right to be reasonably protected from the accused;
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused;
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that
proceeding;
79
S.J. Res. 35, 107th Cong., 2d Sess. (2002).
80
149 Cong. Rec. S82 (daily ed. Jan. 7, 2003) (statement of Sen. Kyl).
81
H.R.J. Res. 91, 107th Cong., 2d Sess. (2002).
82
A Proposed Constitutional Amendment To Protect Crime Victims: Hearing on S.J. Res. 1 Before the S. Judiciary Comm., 108th Congress,
108-189 (2003).
83
S. Rep. No. 108-191 (2003).
84
See Twist, supra note 2.
85
150 Cong. Rec. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
86
Id. at S4263 (statement of Sen. Feinstein).
87
Id. (statement of Sen. Feinstein); see also Att'y Gen. Alberto R. Gonzales, Prepared Remarks at the Hoover Inst. Bd. of Overseers
Conference (Feb. 28, 2005) (indicating that a federal victims' rights amendment remains a priority for President Bush), available at
http://www.usdoj.gov/ag/speeches/2005/02282005 agremarkshov.htm.
88
150 Cong. Rec. S4263 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). For a description of victim participation, see Beloof, The
Third Model of Criminal Process, supra note 15.
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(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any
parole proceeding;
(5) The reasonable right to confer with the attorney for the Government in the case;
(6) The right to full and timely restitution as provided in law;
(7) The right to proceedings free from unreasonable delay;
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 89
Rather than relying merely on the "best efforts" of prosecutors to vindicate rights, the CVRA also contains specific