Victims' Rights

The first serious effort to amend the U.S. Constitution on behalf of crime victims emerged from the efforts of the President's Task Force on Victims of Crime in 1982. The group's report, which is often cited as the watershed event for the victims' rights movement, inspired Congress to create an Office of Victims of Crime in the Justice Department. The Task Force also proposed adding a victims' rights provision to the Sixth Amendment, which otherwise guarantees the rights to the accused in criminal cases, such as the rights to a speedy and public trial and to counsel. It proposed an additional sentence: "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." The task force argued that only an amendment would secure the treatment and respect victims deserve.

Direct efforts to amend the federal Constitution were not begun immediately. Instead, supporters worked to build political momentum through victims' rights amendments in the states. Beginning slowly, these efforts have proved very successful. Between 1982 and 1989, five states approved victims' rights amendments. By the end of 1994, the number was twenty, and by the end of the decade, over thirty states had successfully adopted such amendments.

In September 1995, given the successes in amending state constitutions, the National Victims' Constitutional Amendment Network (NVCAN), an umbrella group representing the major victims' rights organizations, adopted specific language that it proposed be added to the Sixth Amendment. This marked the beginning of a serious effort to amend the U.S. Constitution on behalf of crime victims.

The amendment NVCAN proposed was much more complicated and far-reaching than the task force's simple sentence. Although subsequently modified, it provided a general outline for the serious consideration of an amendment. Beginning in 1996, Senators Jon Kyl of Arizona and Dianne Feinstein of California, two leading congressional proponents, introduced a proposed amendment in Congress, and its proponents pressed it forward in subsequent sessions. In July 1998, it was approved by the Senate Judiciary Committee.

Drafted as a separate amendment, Senate Joint Resolution 3 (1999) would guarantee the following rights to victims of violent crime in federal and state criminal and juvenile proceedings:

• • to reasonable notice of, and not to be excluded from, any public proceedings relating to the crime;
• • to be heard, if present, and to submit a statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence;
• • to the foregoing rights at a parole proceeding that is not public, to the extent those rights are afforded to the convicted offender;
• • to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence;
• • to reasonable notice of a release or escape from custody relating to the crime;
• • to consideration of the interest of the victim that any trial be free from unreasonable delay;
• • to an order of restitution from the convicted offender;
• • to consideration for the safety of the victim in determining any conditional release from custody relating to the crime;
• • and to reasonable notice of the rights established by the amendment.

The amendment would give victims standing to enforce its provisions but would not authorize a suit for damages against any governmental unit. Congress would have power to enact enforcement legislation, and exceptions could be created only when necessary to achieve a "compelling interest."

The proposed amendment is controversial on a number of dimensions. The proponents argue that it is warranted because only a federal constitutional amendment can assure uniformity. Also, they believe an amendment is required to prevent the rights of victims from being over-ridden by rights of the defendants and excessive judicial deference to those rights. Moreover, they argue that the participatory rights guaranteed in the amendment are appropriate subjects for federal constitutional protection, similar to right of the press to access to judicial proceedings under the First Amendment. Finally, proponents believe that enshrining the rights in the Constitution is the only way to give victims full rights in the criminal process and thereby bring the system, which they contend currently favors the criminal defendants, into essential balance.

Opponents counter each of these arguments. They contend that uniformity is neither necessary nor appropriate given the youthful state of victims' rights and the traditional interests of the states in criminal law enforcement, which means the amendment would both inhibit experimentation and infringe upon traditional federalism concerns. Critics argue that reported cases show no tendency for courts to defer to defendants' rights by overruling victims' rights in statutes and state constitutional provisions. They believe that participatory rights, to the extent they do not conflict with the rights of the accused guaranteed by the Bill of Rights, can be fully protected by statutes and state constitutional provisions. They contend that to the extent that victims' rights conflict with defendants' rights, they are not the appropriate subject of a constitutional amendment, which should be reserved for protecting those unable to secure protection through democratic action, such as racial minorities and despised groups like those accused of crime, not to further the interests of politically popular victim groups who exercise power successfully through traditional methods.

One area in which the conflict between the traditional values of the criminal justice system and those supported by the amendment can be most clearly seen is in the amendment's constitutional guarantee of a right of victims to be present during all public proceedings. The conflict is most pronounced when several apparent victims are also the only witnesses to an alleged crime. Under longstanding sequestration rules in most U.S. jurisdictions, witnesses may be excluded upon request until it is time for them to testify to prevent the conscious or unconscious tailoring of their testimony to fit that of those who testify earlier. Under the proposed amendment, alleged victims cannot be excluded even though guilt has not yet been determined and their status as true victims therefore not decided. Such difficult cases include self-defense cases and those where charges of assault upon a police officer are countered with claims by the defendant that instead the crime involved is excessive force by the police. Opponents of the amendment argue that the constitutional right of such witnesses to remain in the courtroom undermines justice. Proponents counter that such cases are rare and that traditional truth-seeking tools such as cross-examination and jury argument and the existence of independent evidence in many cases eliminates or reduces the potential problem.

The major objection of opponents to the amendment, however, is conceptual. They argue that to the extent the amendment would affect outcomes in criminal cases it begs the essential questions of who is a true victim and whether the particular defendant is the responsible party. While the identity of the accused is clear at trial, the question of whether the apparent victim should have rights against the accused cannot be known until the verdict. Accordingly, in contrast to rights at sentencing, victims' rights that affect the outcome of the case are illegitimate. Aspects of the amendment that may have such effect include the right of victims to be present throughout the trial, noted above, and the right to affect pretrial release decisions and the decision whether proceedings should be delayed. However, the most significant impact would occur if the amendment was seen as changing the fundamental concept of criminal trials—from one in which the Constitution gives procedural rights to the defendants to protect them against erroneous convictions and to guard against abuses of governmental power, to one that involves a contest between a victim and a defendant both protected by constitutional rights. Rather than error in favor of acquittal of the accused citizen being accepted as the price of limiting governmental over-reaching, any errors in result might now constitute a violation of the government's constitutional duty to one of its citizens who stand on both sides of the case. Moreover, the rights of victims might been seen as added to the prosecution side of the litigation.

Amendment proponents label these last set of arguments as both overblown and misguided liberalism. The amendment's supporters nevertheless have the political attractiveness of the victims' rights concept on their side, which makes the enactment of the proposed constitutional amendment a real possibility.