by Ed Smart
Why shouldn't it be federal law that victims receive timely notice of any release, escape, and public proceeding involving the crime? Why should victims often not be allowed to speak at release, plea, sentencing, commutation, and pardon proceedings?
All of the foregoing constitutional rights are granted to accused offenders:
1. The U.S. Constitution guarantees more than a dozen rights to those accused of committing crimes.
2. Victims' rights are secondary to the constitutional rights of defendants, as well as secondary to the interest of judges and lawyers, some of whom are insensitive and have their own agendas.
3. A new sensitivity to victims' rights can be brought about only by ensuring that the U.S. Constitution guarantees their right to be treated with fairness, dignity, and respect.
At the moment, criminal justice seems like justice for criminals. Approximately 9 percent of reported violent crimes are resolved with the perpetrator being incarcerated. In turn, this influences the justice process, because it affects the victims' decisions of whether or not to come forward when a crime has been committed.
Currently, fourteen states have enacted constitutional amendments for the rights of victims. In addition, Patrick Leahy (D-VT) introduced the “Crime Victims Assistance Act of 2003” on April 7, 2003, which aims to enhance the rights of crime victims and to establish grants for local governments to assist crime victims.
GENERAL VICTIMS' RIGHTS
ONLY SOME STATES ABIDE BY
1. To be treated with fairness, respect, and dignity and to have a swift and fair resolution of your case
2. To be informed of and present at all critical stages of the criminal justice process
3. To be present and heard in court for any bond reduction, amendment of charges, disposition, sentencing, or continuances
4. To have a safe waiting area near the court
5. To confer with the District Attorney's Office before the case is resolved or goes to trial, and to be informed of the outcome
6. To prepare a Victim Impact Statement and to be present at sentencing
7. To have restitution ordered
8. To pursue a civil judgment against anyone who has committed a crime against you
9. To be informed of post-conviction release or modification hearings
10. To get your property back quickly when it is no longer needed for prosecution
11. To apply for Victim Compensation for crime-related losses such as therapy, medical, and funeral expenses
As parents, we strongly urge you to get involved with your legislators on the issue of victims' rights. Write your congressman, your senator, the President of the United States, and tell him or her that you think the time has come to make changes in the system to protect the victim—not the defendant. If it were your child, what would you do?
CRIME VICTIMS' RIGHTS AMENDMENT
PROPOSED IN APRIL 2003
The U.S. Constitution, mainly through amendments, grants those accused of crime many rights, such as a speedy trial, a jury trial, counsel, the right against self-incrimination, the right to be free from unreasonable searches and seizures, the right to subpoena witnesses, the right to confront witnesses, and the right to due process under the law. The same document, however, guarantees no rights to crime victims. Victims have no right to be present, no right to be informed of hearings, no right to be heard at sentencing or at a parole hearing, no right to insist on reasonable conditions of release to protect the victim, no right to restitution, no right to challenge unending delays in the disposition of their case, and no right to be told if they might be in danger from release or escape of their attacker. The Crime Victims' Rights Amendment would bring a new balance to the judicial system.
RIGHTS IN THE AMENDMENT
The amendment gives victims of violent crime the right:
1. To reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused
2. Reasonably to be heard at public release, plea, sentencing, reprieve, and pardon proceedings
3. To adjudicative decisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender
In the 106th Congress, Senators Dianne Feinstein and Jon Kyl introduced S.J. Res. 3, the Crime Victims' Rights Constitutional Amendment, which was cosponsored by a bipartisan group of forty-one senators, including Senators Biden, Reid, Lieberman, Lott, McCain, Craig, and Snowe. Governors in forty-nine out of fifty states have called for an amendment. In 2000, forty-three attorneys general (including three federal) endorsed the amendment. There is strong support around the country for an amendment. Thirty-two states have passed similar measures—by an average popular vote of almost 80 percent.
In April 2003, Senator Kyl talked at length about fundamental reform of the criminal justice system, which can be brought about only by changes in the fundamental law—the Constitution. He said that attempts to establish rights by federal or state statute, or even state constitutional amendment, have proved inadequate after more than twenty years of trying. Rights that are guaranteed by the Constitution will provide for a national baseline. According to a report by the National Institute of Justice, even in states that had victims' rights legislation, fewer than 60 percent of the victims were notified of the sentencing hearing and fewer than 40 percent were notified of the release of the defendant.
The Crime Victims' Rights Amendment has strong support in the House and Senate and from the International Association of Chiefs of Police and major national victims' rights groups, including Parents of Murdered Children, the National Organization for Victim Assistance, Mothers Against Drunk Driving (MADD), the Maryland Crime Victims' Resource Center, Arizona Voice for Crime Victims, Crime Victims United, and Memory of Victims Everywhere.
Chapter 24
Sing, O Heavens; and be joyful, O earth; for the Lord hath comforted
his people . . . I will save thy children . . . and all flesh shall know that
I the Lord am thy Savior and thy Redeemer.
—ISAIAH 49:13, 25–26
A MIRACLE!”
The headlines around the world on March 13, 2003, rang of words like “Miracle,” “Answered Prayers,” and “She's Home!” Elizabeth had been found alive in nearby Sandy, Utah. Her safe return came just as the country was facing imminent war, threats of terrorism, and economic doom. The word that Elizabeth had been found diverted the attention of Americans to some happy news. It was an absolute miracle. We proclaimed loudly and proudly, “God lives! He answers prayers!”
Though we had been willing to accept any outcome, we firmly believe that faith and prayers had an influence in bringing our daughter home. Throughout the nine months, we could feel our Heavenly Father's love. We are so thankful to Him for the abundance of blessings that were poured down on us and continue to be now that Elizabeth is home.
At the first candlelight vigil for Elizabeth in June 2002, a jazz singer sang “Amazing Grace.” At the time, we had no idea how appropriate that choice would be. With Elizabeth's homecoming, the words “I once was lost and now I'm found” took on a whole new meaning. Elizabeth didn't attend the homecoming vigil, but she wanted to send a message to the world. We thought she would need some help writing something, but she didn't. Without hesitation, Elizabeth took a pen and inscribed the message she felt from her heart. She wrote on a large poster board, “I am the luckiest girl in the world! Thank you for your love and prayers. It's a wish come true. I'm home! I love you all. Elizabeth Smart.” We had a police escort to Liberty Park. When we got there, thousands of people were there to welcome Elizabeth home. People were hugging and crying and were sharing their joy and jubilation.
Rocky Anderson spoke to the crowd first. Lois took the stage, and in reference to Elizabeth's message raised her arms in the air and said, “And I'm the luckiest mother in the world!” She shared with the crowd that Elizabeth was doing all the girly things—taking
long bubble baths, painting her nails, and catching up on all the movies she had missed over the nine months. She was doing all the things a fifteen-year-old girl likes to do. Ed spoke next, thanking everyone and expressing his hope that the congressional leadership in the Senate and House would step up to be the leaders we need them to be. They don't represent themselves. They represent us. He told the crowd that God lives, and for those who had doubt, He does answer prayers. John Walsh, who flew to Salt Lake after hearing the news that Elizabeth had been found, spoke next. Before the celebration ended, Ed asked the crowd to stop for a moment and pray for all the parents of missing children so they, too, could have a miracle in their lives. He also asked for the crowd to pray for President Bush, as we were a country about to go to war and we had to remember those servicemen and -women who were fighting for our freedom.
We went home after the celebration and were shocked at the continuous outpouring of love from everyone. We received more than seventy floral arrangements, including one with Elizabeth's image on the petals. We also received hundreds of stuffed animals and angels, among them a life-sized moose sent by one well-wisher from Park City. We thought about bringing the flowers and stuffed animals to local hospitals because they were crowding us out of our home. But we wanted Elizabeth to know and understand how much she was missed and loved. She will perhaps never fully understand the enormity of her abduction, but a letter she received from someone in Egypt after she returned has given her some insight. This was the first time she felt the love and prayers of so many people who had hoped and prayed for her while she was missing. It felt good to all of us, but Elizabeth was truly touched.
When Elizabeth came home, we received numerous phone calls from family and friends—and even one from the President of the United States. Mrs. Bush had called to express her worry when Elizabeth was initially taken. We were touched by the Bushes' warmth and sincerity. Lois was bathing when our son Edward called upstairs to tell her that she had a phone call. Lois yelled back down, “Not now! Take a message.” Edward explained that he thought it was someone important because they insisted on speaking to one of us. Lois decided to reach for the phone, but as she did, Edward hung up the extension in the kitchen—not realizing he had just hung up on the White House. After that, Ed received a call on his cell phone. The voice on the other end said that the President wanted to talk to him. The President expressed how thrilled he was that Elizabeth was home. He called it a miracle—and it truly was.
All kinds of people lent their support to our family when Elizabeth was missing. B.A.C.A., which stands for Bikers Against Child Abuse, is a group that has always been a strong children's advocate. These guys were there for our family from the day Elizabeth was kidnapped. At the homecoming vigil, one of the bikers handed us a white tapered candle the group had saved from the first candlelight vigil. They wanted us to have the candle to enjoy as a token of their support. And when Brian David Mitchell and Wanda Barzee were charged with their crimes, B.A.C.A. showed up on the courthouse steps to represent all missing and abused children. We love you, B.A.C.A. boys!
On March 18, 2003, Brian David Mitchell and Wanda Barzee were charged with six felony counts. David Yocum, the Salt Lake County district attorney, is seeking life sentences for the two, who are behind bars on $10 million bail. The case is currently a state issue, but federal charges could be brought against the two in the future. In addition to the kidnapping and aggravated sexual assault charges, Mitchell and Barzee face aggravated burglary charges for breaking into our home using a dangerous weapon, another charge of aggravated burglary for attempting to break into our relatives' home while Elizabeth was being held against her will, and a second charge of aggravated kidnapping for attempting to abduct Elizabeth's cousin. The severity of the charges is an indication of the danger that Mitchell and Barzee presented throughout the nine months Elizabeth was gone.
Since Mitchell and Barzee have been taken into custody, relatives of Mitchell's have come forward and have described him as a religious extremist. Mitchell has explained in a “manifesto” he wrote that he was acting on his own. Mitchell was not just a zealot looking for converts, he was a sexual predator. He was aided and was abetted in his actions by Wanda Barzee. To us, they are both equally culpable.
“I feel triumphant!”
Those were the words Elizabeth spoke the day she took us to see the campsite where she had been held captive. It was amazing to be there with her and to witness her feeling that she had conquered Mitchell and Barzee. Ed and Elizabeth have gone jogging together several times after she returned home. Sometimes they run up one of the canyons behind our home—in the hills where Elizabeth was held. We thought that maybe, someday, she'd want to take us there, but we never expected to have Elizabeth, just a couple of weeks after coming home, want to show us where she was held captive. When Elizabeth came home it was like having a newborn baby, so to speak, since we worried about her all the time. We thought the visit to the campsite would set her back—that she wouldn't be able to deal with it. We gave her plenty of opportunity to bow out—but it was important to Elizabeth that we see the site. She was adamant. She wanted to go. “I want to do it now,” she said.
Everyone in the family except William and Edward hiked up the trail together. Elizabeth marched up that hill as if she were headed to battle. We arrived, and she showed us everything: “This is the place we hid our shoes. This is where we got water. This is where I lived.” We were stunned at the calm and secure way that Elizabeth spoke. She explained that she, Brian, and Wanda had moved between two campsites. The upper site is where she was for the first two months. Then, Brian moved them to a lower campsite. He obviously felt safe with what he was doing by the time they moved to the lower camp. It had been two months and nobody had found them. It is so unbelievable that thousands of searchers were looking for Elizabeth—any sign of her—and no one found her. Elizabeth has said that Brian constantly reinforced that it was God's will that no one would catch him, that God had told him to take Elizabeth. When we stood at the site, Elizabeth was free—free to do and say whatever she wanted. It was liberating and cathartic. More crucial to her was to prove that Brian and Wanda did not own her. There were no tears—she certainly didn't show any anguish about being there. It was like a cleansing for her. It is part of the healing. For us, it was bewildering. We didn't know what to expect. It was horrifying seeing the conditions she had to live under. On the other hand, it was glorious to see our daughter hold her head up in victory—to see her in control, knowing that she was a survivor in every sense of the word.
It was a continuation of the rebirth of Elizabeth Ann Smart.
Today, Elizabeth is trying to get back to normal. She is so looking forward to getting her driver's license. She is now sixteen years old. It has been a year and a half since she was kidnapped. Life has changed for all of us. But Elizabeth is reconnecting with her friends—trying to catch up on the year she missed out on in their lives. She's not allowed to date until she's sixteen, which means by the time you read this book, our daughter will most likely be driving and dating—yikes! She's right on target—doing the things she ought to be doing. She goes out with her friends, which is sometimes hard for us, but we want life to be sweet for her. She started school in the fall, and is adjusting well to being back in the swing of things.
Chapter 25
ELIZABETH
DEAR WORLD:
I am so happy and thankful to be home with the people I love. I'm doing great. I owe a lot to my family and to the great friends that I have. I want to thank them for not giving up on me. I wish I could thank each and every person who prayed for me individually. If you were standing in front of me now, I'd shake your hand and tell you how much your good thoughts and prayers meant to my family and me.
Through my experience, I have learned not to take anything for granted—not my life, my family, my safety, my health, my friends, or even my enemies. You have to live life every day knowing how precious God's gifts are. I also beli
eve that you have to live your life without fear and anger. If you fear something enough, I think you can sometimes make that fear a reality. If today were your last day on earth, would you have told the people you love that you love them? Would you have any regrets? Would you be able to die peacefully and without a grudge? I have learned that living in the moment means taking the time to do the things that are meaningful and important. Every day is a blessing. I feel so blessed to be back home, with my family and friends. I truly am the luckiest girl in the world! Thank you for all of your love and support.
Chapter 26
LOTS OF CHILDREN have been kidnapped. Is that predestination? We don't think we were predestined to go through this. We believe that God knows all. He knows from beginning to end our thoughts, our prayers, our hopes, dreams, plans, everything. He knows and understands each of us so well. He knows how we will react and endure in any situation. We relied upon our faith to sustain us. We truly believe in a God in Heaven who loves us all—who is there for us. We never walk alone. That is how we made it. That is how we survived. God knows the larger picture. Maybe our experience was meant to touch many people. Maybe that's the reason Elizabeth was taken. We will never know.
We received a very moving and memorable letter from a young man who had proclaimed himself an atheist his entire life. He was riveted by our story and the disappearance of Elizabeth. He was drawn to this situation when he had never cared about a kidnapped or missing child in the past. He was consumed with the story. He wrote that every night he checked the news to see if there had been a break in the case. He found himself on his knees praying for Elizabeth to be found. He was praying to God. He had been an atheist his whole life, but through Elizabeth's story, he realized he did believe in God. He believed that miracles can happen. He is now convinced that there is a higher power that is involved in our lives.