Victims' rights movement rises to power.

Make no mistake about it, these are heady times for victims' rights advocates.

In the past year, their ultimate goal -- to win passage and enactment of a proposed victims' rights amendment to the U.S. Constitution -- has received the endorsement of President Clinton and won significant bipartisan support in Congress. Activists believe an amendment would bring into balance a criminal justice system in which the scales are tipped in favor of the accused. An amendment would also ensure that crime victims' rights are enumerated in much the same way the Bill of Rights outlines protections for criminal defendants.

David Beatty, acting executive director of the National Victim Center, said that since 29 states have already approved similar amendments to their constitutions, a federal amendment is likely forthcoming. Beatty's group, based in Arlington, Virginia, is an advocacy and resource center that tracks victims' rights laws and related court cases and lobbies at the state and national levels.

States that have passed victims' rights legislation have done so by overwhelming margins. Beatty views the sweeping victories as nothing less than "the kinds of super-majorities our founding fathers intended when considering a constitutional amendment."

But opponents believe that according victims enhanced legal status would undermine existing constitutional protections for those accused of crimes. They believe that a constitutional amendment is unnecessary and that it flouts a system of justice firmly entrenched in federalism.

Advocates and detractors alike punctuate their arguments on the proposed amendment using two words: Oklahoma City. The trial of Timothy McVeigh, who was convicted on June 2 of all 11 counts against him in the bombing of the Alfred P. Murrah Federal Building, showcased the legal struggle to balance the rights of the victim with those of the accused.

A proposal to amend the Constitution was first introduced in Congress in 1996. The Senate Judiciary Committee held hearings on the legislation in April of this year, and more hearings are likely. Senate cosponsors are Sens. Dianne Feinstein (D-Cal.) and Jon Kyl (R-Ariz.). Rep. Henry Hyde (R-Ill.) has introduced similar legislation in the House (H.R. 1322). Votes on both are expected sometime later this year.

The movement traces its roots to the 1982 Final Report of the President's Task Force on Victims of Crime. The report castigated the criminal justice system for neglecting victims and recommended a range of victims' rights proposals. A constitutional amendment was one. In the years since, the states and Congress have enacted a variety of measures adopting many of these recommendations.

For example, in 1990, Congress passed the federal Victims Rights and Restitution Act -- better known as the Victims' Bill of Rights. (42 U.S.C. [section] 10606(b)(4).) The act gives victims the right to be notified of and present at court proceedings and to be kept apprised of the offender's conviction, sentencing, imprisonment, and release status. (Paul G. Cassell & Robert E Hoyt, The Tale of Victims' Rights, Legal Times, Dec. 23, 1996, at 32.)

Congress also passed the federal Victims of Crime Act, the Justice Assistance Act, and a package of victims' rights legislation as part of the Violent Crime Control and Law Enforcement Act of 1994. (Richard Carelli, Even with Bipartisan Support, Future Clouded for Victims' Rights Amendment, Chi. Daily L. Bull., Oct. 18, 1996, at 2.) In 1996, Congress enacted legislation mandating restitution to crime victims. The law also ensured victims' access to closed circuit television broadcasts of relevant trial proceedings that were relocated as part of a court-ordered change of venue.

While advocates are quick to applaud these federal and state measures, they contend that the legislation varies in scope and, when taken together, does not go far enough to ensure a consistent guarantee of crime victims' rights nationwide.

Roberta Roper, who cochairs the National Victims' Constitutional Amendment Network, said an amendment is the only way to ensure that "justice, fairness, and equity are extended to all innocent victims of crimes, just as we properly do for those accused of crimes."

Finding the precise wording for the proposed 28th Amendment has been a sticking point. In its current form, as Senate Joint Resolution 6, the amendment would give victims of violence the following rights:

* to be notified of and to attend all public proceedings relating to the crime;

* to be heard and to submit impact statements at sentencing and parole hearings;

* to be notified of an offender's release, parole, or escape;

* to a final disposition of the criminal proceedings without unreasonable delay;

* to an order of restitution from the convicted offender;

* to have the safety of the victim considered in determining any offender's release from custody; and

* to be notified of these rights.

Opposing views

In April, as the Senate Judiciary Committee prepared to hold hearings on the amendment, a large and politically diverse coalition of law professors and practitioners sent a letter to Capitol Hill urging Congress not to support the amendment. The coalition argued that it would not satisfy victims' needs and that its passage would be counterproductive.

"Crime victims deserve protection, but this should be accomplished by statutes, not a constitutional amendment," the letter argued. "As law professors and practitioners, we urge the rejection of the proposed Victims' Rights Amendment as unnecessary and dangerous."

The coalition was coordinated by three prominent law professors: Erwin Chemerinsky from the University of Southern California Law Center, Lynne Henderson from the Indiana University School of Law at Bloomington, and Robert Mosteller from Duke University School of Law.

Noting that the Constitution has been amended only 27 times in the nation's history and only when there has been a pressing need, the coalition maintained that virtually every right contained in the amendment can be safeguarded by federal and state statutes.

"The constitutional amendment is a practical, administrative, and financial burden on institutions trying to dispense justice," Chemerinsky said. "It would siphon resources away from essential law enforcement efforts and open our entire criminal justice system to a floodgate of claims and differing interests."

The coalition believes the amendment is likely to be counterproductive because it places "enormous new burdens" on law enforcement agencies that could hamstring their prosecution efforts and cripple criminal proceedings. For example, the coalition believes that the proposed right of crime victims to insist on faster resolution could force prosecutors to try cases before they are fully prepared. Or that rushing a trial to a final resolution could jeopardize the defendants' discovery time to gather evidence to demonstrate their innocence.

Victims' rights advocates cannot understand what all the fuss is about. Beatty said that the amendment "would simply elevate the rights of the victims to the same level of protection as those of the accused."

Paul Cassell, a law professor at the University of Utah and a leader in the victims' rights movement, believes that a constitutional amendment is an appropriate response to the imbalance that exists between victims' rights and defendants' rights. According to Cassell, that imbalance was exacerbated in the 1960s, when the Warren Supreme Court expanded the rights of criminal defendants and constitutionalized most aspects of criminal procedure.

Cassell said trial judges who had previously accommodated victims' concerns informally Were suddenly forced to follow prescribed formulas. Without a constitutional basis for considering victims' interests, a defendant's claim of a procedural right always prevailed. The court's one-sided expansion of defendants' rights slid victims out of the picture." (Paul G. Cassell & Steven J. Twist, A Bill of Rights for Crime Victims, Wall St. J., Apr. 24,1996, at A15.)

Oklahoma City

The legal struggle to balance the rights of the victim with those of the accused was played out on a near-daily basis in Denver during convicted killer Timothy McVeigh's trial for his role in the Oklahoma City bombing.

"Oklahoma City has certainly become a test case for victims' rights," said Cassell. "There are still many uncertainties swirling around regarding their rights in this case, and state statutes haven't resolved the problem because the defense has raised constitutional objections."

Victims injured in the Oklahoma City bombing and survivors of people who died in the April 1995 blast became angered last summer when Judge Richard Matsch, who presided in the case, barred victims and family members planning to testify in any penalty phase of the case from sitting in the courtroom during trial. He also forbade victims from providing impact statements. His concern? That what they heard and saw in the courtroom could prejudice their testimony. Federal evidence rules allow judges to exclude material witnesses from trial proceedings to prevent them from changing their testimony.

Victims' rights advocates appealed. They argued that Matsch's ruling went too far -- and forced them to choose between attending the trial and testifying at sentencing. They lost in the courts in February, when a three-judge panel of the Tenth Circuit upheld Matsch's ruling. (United States v. McVeigh, 106 F.3d 325 (10th Cir. 1997).) In March, the full circuit affirmed, turning down a request by federal prosecutors and victims' advocates for an en banc rehearing.

The decision to exclude victims and their families from the courtroom -- believed to be the first federal appeals court ruling on the 1990 Victims' Rights and Restitution Act -- incensed victims' rights advocates, who say it eviscerated both the spirit and the letter of the act.

Undaunted, the victims' advocates took their campaign to Capitol Hill. There, they were not disappointed. By the end of March, Congress had pushed through a bill that effectively overturned Matsch's ruling. The bill passed by unanimous consent in the Senate. The House voted 418-9 in favor. President Clinton signed the bill into law on March 20. (Robert Schmidt, Law Passed to Let Witnesses Hear Trial, Legal Times, Mar. 24, 1997, at 11.)

Matsch chose not to hold hearings on the constitutionality of the new law, saying that to do so would delay McVeigh's trial. On March 25, Matsch reversed himself. But in a five-page order, he noted that victims could be questioned before they testified during the sentencing phase outside the presence of the jury to ascertain whether testimony heard during the guilt phase affected the testimony they intended to offer -- and could therefore be barred as tainted.

In effect, Matsch left open the door to reassert his judicial authority by blocking victims' testimony at a later date. Victims who testified at trial were still subject to questioning by the judge during the penalty phase, a prospect that some of them weren't happy about. (Ryan Ross, Judge Asserts Right to Bar Okla. Victims, Nat'l L.J., Apr. 7, 1997, at A10.)

In spite of the tragedy and the obstacles they have faced, Cassell said the victims of the bombing hope that Oklahoma City will serve as a wake-up call to expedite passage of a constitutional amendment. "If that happens," he said, "the victims will feel that at least one good thing will have come out of Oklahoma City -- fully enforceable rights for all crime victims."