July 11, 1996
Washington, D.C., July 11, 1996 -- Any so-called "victims' rights" amendment to the
Constitution would pose "grave dangers" to the Bill of Rights, a representative of the National
Association of Criminal Defense Lawyers told the House Judiciary Committee today. Elisabeth A.
Semel, a prominent California lawyer and the organization's legislative committee co-chair, testified
that such an attempt to "elevate" victims' rights to the same status as those of the accused effectively
would write fundamental citizens' rights out of the Constitution.
"Sensitivity to the legitimate concerns of victims of crime does not require a constitutional
amendment," Semel testified. "The Constitution is not the place for promises or entitlements from
the government based on what is politically correct, such as those contained in H.J. 173 and H.J. 174
[the proposed victims' rights amendments]."
Semel noted that our system of government protects the rights of individuals and minorities
from "mob rule," and that in today's climate of crime hysteria, a citizen accused of a crime is the
"consummate minority."
"The accused often faces the power of the government alone save for his defense counsel,
whose resources are almost always a minuscule fraction of those increasingly appropriated to the
government. Infusing 'victims,' who already carry an enormous cache of popular will, with
constitutional powers might overwhelm the counter-majoritarian check reflected in the Constitution
and the Bill of Rights, to the advantage of mob rule."
Besides being a dangerous and unnecessary tampering with the Constitution, the NACDL
maintains that the proposed amendment is frighteningly vague as to who is a crime victim or when
a person attains "victim" status. Is the woman who shoots a man after he stalked and terrorized her
relentlessly for months a "victim" or the man who got shot? asked Semel. Under the traditional
American system of justice, can there even be a "victim" before a court determines whether a crime
in fact was committed, the complainant was affected by the crime, and that the defendant is guilty
of it?
"Criminal lawyers are fully supportive of legal reforms that would require law enforcement
officers and prosecutors to treat crime victims with greater sensitivity and respect," Semel said.
Rather than wasting limited tax dollars on a costly and probably dangerous constitutional
amendment, Semel advised the committee that the American public would be better served by
careful study of the costs and consequences of victims' rights reforms, and less drastic state and
federal legislative alternatives.
"There is a real danger here of tying up the courts, and prosecutors as well, in a Gordian knot
of prolonged proceedings and red tape, while the true purpose of fair and timely justice gets lost in
the process."
NACDL President Robert Fogelnest, a criminal defense attorney in New York, agreed that
the system could be fairer to crime victims, but emphasized that Congress is meddling in an area
traditionally to the states under the federal constitution.
"There is room for improvement in the criminal justice system to make it more 'user friendly'
to victims of crime, but such improvements are best left to state and local authorities," Fogelnest
said. "Crime is a state issue, and the citizens of each state are quite capable of sorting out for
themselves what, if any, improvements are required. Federal constitutional requirements like those
proposed are a caricature of Congress' tendency to federalize everything in sight and then run on a
'states' rights' platform anyway," Fogelnest explained.
"The greatest good we can do for victims is to decrease their numbers. In short, we need a
rational criminal justice policy and an effective crime prevention policy, not another press
opportunity for politicians," he said.
National Association of Criminal Defense Lawyers (NACDL)