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Rights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person....

This amicus brief filed in the U.S. Supreme Court case of United States v. Briggs on behalf of a bipartisan group of thirteen members of Congress discusses the absence of any statute of limitation for rape prosecutions within the military. It argues that the Constitution entrusts Congress with authority over military discipline, including the authority to determine what (if any) statutes of limitations apply to crimes that occur within the military. By classifying rape as an “offense punishable by death” and stipulating that “offenses punishable by death” are not subject to statutes of limitations, Congress entrenched the policy that rape within the military is not subject to any statute of limitations at all. Whether the death penalty can be constitutionally imposed for the rape of an adult—an open question in the specialized military context—is wholly irrelevant to the key question in the case: Whether Congress determined that the death penalty is warranted for rape in the military. Congress’ policy judgment—that rape within the military is so heinous and so damaging to military effectiveness that no temporal restriction should be placed on its prosecution—is entitled to respect. Rape in the military has devastating effects on survivors individually and military readiness generally. And the military’s hierarchical command structure can exacerbate the understandable reluctance of rape survivors to come forward and report the crimes committed against them. In light of those considerations, the provisions in the Uniform Code of Military Justice that address rape in the military have been understood for decades to reflect Congress’ intent that those who commit the crime of rape should not be permitted to escape justice by hiding behind the passage of time.

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence. The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even more challenging, without any corresponding benefit. In domestic violence cases, there is rarely direct evidence of specific intent, and domestic-violence victims often struggle to confront their abusers in court. Indeed, the impact of abusers’ psychological, emotional, and physical abuse is often so severe that victims frequently struggle even to seek help. The Kansas Supreme Court’s decision to impose a specific intent requirement in a case involving violent threats is inconsistent with decisions from other courts, the law in over a dozen states, the Model Penal Code, and the history and tradition of the First Amendment. This amicus brief concludes that the Supreme Court should grant certiorari to review the decision below and reverse it.

This amicus brief filed in U.S. Supreme Court case of Kahler v. Kansas discusses how states (such as Kansas) are free under the Constitution to structure so-called “insanity” issues in various ways. In particular, states are free, if they choose, to require criminal defendants to prove that a mental disease or defect rose to the level of preventing the defendant from forming the required mens rea to commit the crime. In making such choices, it is important that states do not overlook the interests of crime victims, who want to see criminals held properly accountable for crimes they have committed.

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals – e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt. And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release – a condition of which would be that they not commit new crimes. Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial. Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals. In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective. Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values. With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure – and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

Arizona’s pending certiorari petition in Arizona v. Goodman provides the Supreme Court with an opportunity to review the important issue of the circumstances under which the Constitution permits an accused sex offender to be denied bail pending trial. In 2002, Arizona voters amended their state constitution, rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a narrowly divided opinion, the Arizona Supreme Court found that this measure unconstitutional. And yet the Court’s opinion makes clear that the Constitution does not prohibit denying bail to defendants who present (1) “a continuing danger to the community” or (2) “a risk of flight.” Nor does the Constitution prohibit categorically denying bail based on the nature of the charged offense. Indeed, thirty-four states categorically deny bail to persons charged with capital offenses, murder, specified sex offenses, or offenses punishable by life imprisonment. Review of the Arizona Supreme Court’s decision is needed to resolve the conflict between it and the Court’s precedent on an important issue of constitutional law that affects the criminal justice system, crime victims, and community safety in States across the Nation. The Court’s review is especially needed because of the serious implications for victims and their communities if the judgment below is permitted to stand. Given sex offenders’ high recidivism rates, and the life-altering harm suffered by their victims, Arizona’s legislature was entirely reasonable when it opted to categorically deny bail to sexual-assault defendants on the ground that sexual assault is an adequate proxy for future dangerousness - and to build in procedural protections that go above and beyond in ensuring due process. The Constitution does not prohibit States like Arizona and others from taking these steps to ensure sex offenders are brought to justice, victims are protected, and communities are safeguarded.

Determining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in this country much lower than the rates commonly suggested in other wrongful conviction literature. This Reply underscores the important point of convergence between Thomas’s estimate and my estimates: both are much lower than the conventional wisdom on the subject suggests.

This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that other ways to initiate a prosecution are available, the provision specifically states that public prosecutors in this state shall have the “primary responsibility” for prosecuting crimes. “Primary” responsibility is, of course, not the same as exclusive responsibility. This petition explains why the Utah Supreme Court to use its power to appoint a prosecutor, both to bring justice for these four particular sexual assault victims and, more broadly, to help protect a class of victims – women and girls who have been sexually assaulted – who are under-protected by current prosecutorial practices in our country. The petition argues that the Court can address systemic under-prosecution of rape cases through its power under the Utah Constitution, not only under the Court-Appointed Prosecutor Provision, art. VIII, § 16, but also to protect rights contained in Utah’s Victims’ Rights Amendment, art. I, § 28, the Utah Uniform Operation of Laws Clause, art. I, § 24, and the Utah Equal Rights Provision, art. IV, § 1. It also has power to act through the federal Equal Protection Clause, U.S. Const., amend. XIV. The petition concludes by asking for the Court to appoint a prosecutor to prosecute the sexual assaults committed against the four Jane Does.

Over the last 40 years, advocates for crime victims have succeeded in enshrining victims’ rights in state constitutions and other enactments. These provisions show that a consensus has developed around the country on certain core victims’ rights. Included in the core are, among other things, the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that victims have a means for enforcing these rights. Strengthened enforcement language in state constitutions and, ultimately, perhaps placing victims’ rights in the United States Constitution offer the best prospects for fully protecting crime victims’ interests in the criminal justice system.

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease. With this caution in mind, it is possible to craft reforms that help to protect the innocent without allowing the escape of the guilty. A common theme underlying many of these proposals is that they reorient the criminal justice system away from adjudicating procedural issues and toward considering substantive issues – i.e., issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure. We ought to give serious consideration to measures that move the criminal justice system in that direction.

It is conventional wisdom that crime should not pay. Unfortunately, federal law has struggled to implement this wisdom and pass constitutional muster. Current law violates the Constitution by targeting only certain forms of profiting that raise First Amendment concerns, such as writing books or making movies. This Article contends that Congress must avoid the embarrassment of allowing crime to pay by removing the law’s focus on expressive activity. The Article begins by reviewing the current unconstitutional federal law. It proceeds to argue that Congress should require courts to prohibit profiting as a mandatory condition of supervised release and redraft the federal anti-profiting statute to forbid all profiting from federal crimes. Finally, the Article proposes a revised anti-profiting statute.

Proceeding from the perspective of “innocentrism” (that is, the idea that exoneration of the “innocent” ought to be privileged over other values in the criminal justice system), I suggest eight proposals for reform: (1) researching the frequency and causes of wrongful conviction; (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium); (3) improving the implementation of existing rules on disclosing exculpatory evidence; (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence; (5) abolishing the Fourth Amendment exclusionary rule; (6) replacing the Miranda regime with a system of videotaping custodial interrogation; (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and (8) requiring defense attorneys to directly ask their clients if they are actually innocent. These discriminating proposals offer a far greater prospect of providing help to the innocent without blocking conviction of the guilty. A common theme underlying many of them is that they reorient the focus of the criminal justice system away from procedural issues and toward substantive issues of guilt or innocence. Sadly, Bakken’s proposals seem to offer too much procedure and not enough substance, a recipe for helping the guilty. The truly innocent will benefit in a system that values substance over procedure.

My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice. In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments. The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment. Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions. Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.

Recently Utah became the only state in the nation to interpret its constitution to require preliminary hearings for certain classes of misdemeanors. In State v. Hernandez, the Utah Supreme Court held that for “Class A” misdemeanors (misdemeanors punishable by up to a year in jail), article I, section 13 of the Utah Constitution required preliminary hearings. Article I, section 13 provides for preliminary hearings for “[o]ffenses heretofore required to be prosecuted by indictment.” The court concluded that the phrase “offenses heretofore required to be prosecuted by indictment” referred not only to felony offenses but under Utah’s modern classification of offenses, to Class A misdemeanors as well.This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy. This Article concludes that requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys — once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.

The next Amendment to our Constitution will likely be the Victims' Rights Amendment, which provides a bill of rights for victims of crime. As the amendment has moved closer to passage, its critics have raised various objections. This article responds to the critics, concluding that the Victims' Rights Amendment would properly recognize victims' compelling interests in the criminal justice process. Part I of the article reviews normative objections to the Amendment, concluding that the amendment will harm neither the legitimate interests of defendants nor prosecutors. For example, victims can be given the right to make "impact" statements at sentencing without harming the fairness of the process. Part II responds to those who have argued that the amendment is "unnecessary," explaining the undeniable practical problems that victims face in attempting to secure their rights without federal constitutional protection. Part III turns to structural objections to the amendment, explaining why the protection of the rights of victims to participate in the criminal justice process is an appropriate subject for a constitutional amendment.