Thank you for providing a draft copy of the proposed Crime Victims Assistance Act of 1997. I am writing as an attorney who helped to represent a number of the victims of the Oklahoma City bombing in their attempt to watch the trial of Timothy McVeigh and provide testimony at the sentencing phase.
I have reviewed the proposed bill with an eye to determining how it compares to existing legislation on a victims' right to attend trials. Unfortunately it appears that the proposed legislation is actually weaker than existing federal legislation in several important respects.
Most important, the bill directly undercuts the principle that victims have the right to be heard in court before they are excluded -- a principle upheld by Congress just a few months ago. As you know, Congress recently passed the Victims Rights Clarification Act of 1997, PUblic Law 105-6, to protect the rights of victims to attend trials and provide death penalty impact testimony. Responding to the Tenth Circuit's unfortuate ruling in United States v. McVeigh, 106 F.3d 325, 335 (10th Cir. 1997) victims do not have standing to assert rights under the 1990 Victims Bill of Rights), congress specifically did not include language in the 1997 Victims Rights Clarification Act blocking a cause of action on the part of the victims. As the Report of the House Judiciary Committee pointedly noted, the "no cause of action" language was omitted in order to allow victims to be heard:
The Committee 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. The Committee intends that an allegedly erroneous ruling by a district court excluding a victim in violation of this section be reviewable on appeal, both by the governmnet and by the victim. The Committee points out that it has not included language in this statute that bars a cause of action by the victim . . . .H.R. Rep. 105-28 at 10 (Mar. 17, 1997) (emphasis added).
In contrast to the progressive approach taken just a few months ago -- allowing victims to seek review of their treatment in the court -- the proposed bill affirmatively bars "any other action against the United States, or any employee of the United States, any court official or officer of the court." Proposed Bill, Section 141. This language signals a clear retreat from the view that victims could be heard about their treatment in court.
The new bill not only signals a retreat from this principle, but even contains language that could impede victim reforms that are already underway. The proposed bill would amend Rule 615's provisions dealing with victim attendance at trial. Accordingly, the bill's harsh limits on remedies would apply to all victims seeking to invoke their right to attend trials under Rule 615. See Proposed Bill, , Section 141 (extending bar to cause of action to "any amendment made by this Act"). The Judicial Conference is alrady in the process of amending Rule 615 to comply with a provision in the 1990 Victims Bill of Rights, 42 U.S.C. section 10606(b)(4), that guarantees victims the right to attend trials unless their testimony will be materially affected. Victims have a stronger argument to be heard under the 1990 Victims bill of Rights than they would under the proposed bill. While a panel of the 10th Circuit rejected our argument for victim standing [under] the 1990 Act, 49 member s of Congress asked for the full Tenth Circuit to rehear the case. See Brief of Amici Curiae Washington Legal Foundation and U.S. Senator Don Nickles et. al., United States v. McVeigh Nos. 96-1469 (10th Cir. 1997). I believe that the argument that victims have standing to be heard under the 1990 Act is a good one and might prevail in other federal circuits. Unfortunately, the proposed bill would effectively and forever eliminate any chance that the crime victims would have to litigate this position under the 1990 Act by passing superseding -- and weaker -- legislation in 1997.
Finally, the proposed bill contains a provision that allows the Judificial Conference to submit its own recommendations for how crime victims are to be treated. Proposed Bill, Section 131. These provisions apparently allow the Judicial Conference recommendations to become the law fo the land, even if they conflict with current law protecting victims rights. See Proposed Bill, Section 131(b)(2)(B) (maiking "Chapter 131 of Title 28, United States Code" inapplicable to Judificial Conference recommendation); cf. Chapter 131 of Title 28 (28 U.S.C. section 2071) (requiring court rules to "be consistent with Act of Congress"). The only way that such recommendations could be blocked is for Congress to affirmatively pass an Act of Congress overturning the recommendation. See Proposed Bill, Section 131(b)(2)(B). Unless Congress acts, then, the courts become the final arbiters of how victims are to be treated and could even withdraw existing protections for crime victims. Given that a number of complaints of the victims' movement are directed at the courts, this is a curious -- and to my knowledge unprecedented -- proposal to allow unrestricted court rulemaking. Victims will no doubt wonder [whether] the courts should be given the right to overturn protections for victims adopted by the popularly-elected branch of government.
I hope that the proposed bill, at least as drafted on these points, will not become law. Instead, I hope that Senate Joint Resolution No. 6 -- the Kyl-Feinstein proposed constitutional amendment protecting victims rights -- is swiftly adopted. the constitutional amendment avoids all the issues listed above. Indeed, it is the only approach that will truly protect the rights of victims of crime.
/s/ Paul G. Cassell
Professor of Law