Congress is again poised to pervert the Constitution. The Victims' Rights Amendment ("VRA") was reintroduced this April in the Senate after the "Biden Compromise" narrowed its scope to violent crime victims. S.J. Res. 44. The retinkered "compromise" cannot cure the proposal's fundamental defects. The VRA undermines basic constitutional safeguards for defendants, and it seriously disrupts traditional prosecutorial functions. Moreover, it fails to substantially aid victims of violent crime.
Too many politicians, including President Clinton, who want to appear "tough" on crime, argue the amendment would give victims equal standing in what amounts to a place at their own counsel table. The VRA would apply to all state and federal criminal proceedings, including juvenile justice and military proceedings.
The VRA would provide victims with the right to reasonable notice of all public proceedings relating to the crime and the right to be "heard" on matters such as bail, plea bargaining, sentencing, and parole. It also guarantees the right to "consideration" for the interest of the crime victim in a trial "free from unreasonable delay," and the right to an order of restitution from the convicted offender. It does not "give rise" to a claim of damages against the government.
VRA proponents allege an "imbalance" between the rights of defendants and those of victims. They claim the Constitution only provides rights for defendants. But they fail to mention there is a good reason for this "imbalance:" defendants may lose liberty, property, or even life. Victims face no such governmental risk. And the purported "imbalance" in favor of defendants is fictitious; the reality is just the opposite.
While respecting the pain and suffering borne by crime victims, we must always assume the position of the accused. Remember the rape charges against Dallas Cowboys wide receiver Michael Irvin? If that case had gone to trial, his accuser -- who, investigators later learned, had a history of false accusations -- immediately would have received legal status as a "victim" and the constitutional right to express herself in court, before any evidence had been heard. Emotional distress of alleged or actual victims is not evidence that the accused is guilty, and it should not be used to distort the fact-finding process.
Crime victims deserve our fullest compassion and respect. Increasingly, as legislators and judges realize this, many of the VRA's "rights" have been incorporated in state laws. Twenty-nine states have passed victims' rights amendments. Congress also has moved to broaden the protections afforded crime victims.1 Though we need to do more to help crime victims, there is no compelling reason to amend our basic charter of government. The Constitution has only been amended 17 times in the last 200 years (and one of those amendments (XXI) merely mooted another (XVIII)).
Adding a victims' rights amendment to the Constitution would present many problems:
The amendment establishes rights for crime victims that would, by definition, overwhelm protections the Constitution affords defendants including the presumption of innocence. For example, the right to "consideration" of a "trial free from unreasonable delay" could provide a basis for a victim to assert a constitutional right for faster disposition, or for a judge to deny a request for a continuance that the defendant needs to gather evidence to establish innocence.
The VRA is not an effective way to ensure that those who are guilty are jailed. Allowing victims to contest plea bargains viewed as too lenient, or to force cases to trial before either side is prepared, or to interfere with other prosecutorial and judicial determinations would tie up courts, frustrate judges, and derail investigations and prosecutions.
The right to "consideration" for the victim's safety when determining any release from custody would allow a victim to argue it is unconstitutional to release a prisoner even though the sentence has been served. When a prisoner is up for release, a victim could go to court and rail against it.
The VRA will permit victims to object to plea bargains and thus interfere with prosecutorial discretion. If a prosecutor strategically decides to be lenient with a defendant to secure cooperation, the victim will have standing to assert private interests in retribution -- regardless of the public interest in using the cooperation to arrest a more dangerous offender. The victim's opposition to the plea might force the prosecution to take the case to trial or publicly reveal weaknesses in the evidence to justify the plea agreement.
"Victim" is not defined in the proposed VRA. In a murder case, which survivors of the deceased are the "victims?" The parents? The spouse? The children? Suppose these different "victims" disagree on a proposed plea agreement or release from custody. Who gets to be "heard" in court? Whose interests will prevail? And what about cases of mass victimization?
There are myriad other problems. Who will provide restitution if the convicted criminals have no money -- the taxpayers, or maybe the owners or managers of the crime scenes? Or do only victims of moneyed criminals deserve compensation? Will victims be entitled to appointed, tax-paid lawyers to help them argue their cases? Or will only wealthy victims be able to hire legal counsel to press their rights?
Besides obliterating constitutional safeguards, the VRA will be costly to implement. Notifying victims of all public proceedings will consume time and money otherwise spent on law enforcement. This is an unfunded federal mandate on the states, whose criminal and juvenile proceedings are covered by the VRA. Moreover, the proposed right to notice of all public proceedings is ludicrous. The victim has no legitimate interest in attending many hearings -- such as a discovery hearing for information unrelated to the victim, or a hearing on what costs the defendant should pay to reimburse the state for court-appointed counsel.
The VRA would require costly, massive litigation just to define its scope, enforcement mechanisms, and remedies. Many organizations -- including the National Organization for Women Legal Defense and Education Fund, the National Network to End Domestic Violence, and Murder Victims' Families for Reconciliation -- strongly oppose the amendment. Long-time advocates for victims' rights, these groups believe there are other more responsible ways to assist crime victims, without destroying precious constitutional guarantees.
Chief Justice Rehnquist also opposes the VRA, recently noting that victims' rights statutes are preferable because they can be easily revised or repealed should procedures prove unworkable or undesirable.
The Conference of Chief Justices of the State Courts, and the Committee on Criminal Law of the Judicial Conference of the United States oppose the VRA. So does William L. Murphy, President of the National District Attorneys Association, who in a letter to Senator Patrick Leahy (D-VT) captured the absurdity of the idea:
Must plea bargaining be eliminated? Should all sentences be maximum? Should bail be eliminated in favor of presumptive pre-trial incarceration? Is the more appropriate constitutional amendment the elimination of the presumption of innocence?
If citizens really do not want judges to make decisions, maybe there should only be two branches of government.
During the last presidential campaign, candidates Dole and Clinton, bent on appearing tough on crime, supported the VRA. Now proponents of the amendment are following their lead. While politicians can use the VRA to appear "tough," the extensive damage it might do to our Constitution could prove irreparable.
Instead of enacting an amendment exploiting their pain and suffering, lawmakers would better serve victims by working to provide them needed services. They would better serve their constituents, and all of America, by not cavalierly using crime victims as political "capital" and by not infringing on the rights of all citizens by treading on the time-honored rights of the accused.
Note
1. See, e.g., the Victim and Witness Protection Act of 1982; Victims of Crime Act of 1984; the Victims' Rights and Restitution Act of 1990; and the Mandatory Victims Restitution Act, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996.