Victims’ Rights Amendment is All Wrong

September 20, 1996 • Commentary
By David B. Kopel and Elisabeth Semel

The closer one gets to election day, the worse the quality of criminal justice legislation that U.S. Congress is likely to produce. Back in September 1994, President Clinton signed a crime bill which trampled federalism, assaulted civil liberties, and wasted billions of dollars. This year, Congress and the president are poised to bestow a similar gift on the American public through an ill‐​considered federal constitutional amendment to guarantee “victims’ rights.”

The proposal mandates that “victims” in both state and federal courts have the following rights: to be notified of, and be present at all public proceedings; to be heard at various stages, including bail hearings, plea negotiations, sentencing, and parole hearings; to a speedy disposition of the case; and to receive restitution from the convicted offender. The amendment applies directly to state and federal violent crimes and gives Congress the authority to extend it to other offenses. States must comply with all of these provisions but, as with other unfunded mandates, are not guaranteed any federal funds in order to do so.

Twenty states currently guarantee some crime victims’ rights in their state constitutions, and almost all states provide similar protections by statute. But there is a world of difference between providing or expanding such rights by statute — and doing so by amending the federal constitution.

As a political move, an amendment to the U.S. Constitution is clearly preferable to a statutory change. It is almost certain that the weeks between now and November 5 will see angry exchanges between two of the most cynical major‐​party nominees in American history about who cares more about crime victims.

But in practice, constitutional amendments are blunt instruments. They cannot provide the flexibility and precision that are so often necessary for effective criminal justice.

To begin with, who counts as a victim? If there’s a conviction for attempted murder, the target of the attack is obviously the victim. But what if the homicide attempt succeeds and the defendant is convicted of murder? Who else could claim victim status? First‐​degree relatives? Grandchildren? Cousins? Employers? Customers? No one knows. But we can be sure that there will be swarms of lawyers ready to assert remote claims of victim status for almost anyone.

More fundamentally, the sole purpose of a criminal trial is to determine whether the accused is guilty of the charges. After the jury renders its verdict, we legally know who was the victim. In many cases — such as fights among acquaintances, or in situations where all parties behaved badly — it is not at all clear who is the real “victim,” until the jury sorts things out after a full presentation of the facts.

But the Victims’ Rights Amendment allows individuals to claim “victim” status long before the criminal case has been resolved. Having someone classified as a “victim” before a trial begins undermines the presumption of innocence — the very foundation of our criminal justice system. Moreover, allowing appearances at trial by attorneys for officially designated “victims” will inevitably prejudice the jury, which will “know” that the judge has already decided who is the victim and who is the offender.

Earlier this year, as part of the new terrorism law, Congress enacted legislation mandating restitution to victims of certain violent offenses. Congress had to craft a lengthy, highly specific statutory description of the term “victim” in order to define who was entitled to restitution and who was not. The proposed constitutional amendment contains no such qualifying language. Because the term “victim” would be the legal key to a string of entitlements, there would be endless legal contests over claims of such status and for such benefits. Both before and after trial, courts would have to entertain lengthy litigation over who is entitled to claim victim status.

Amendment supporters may counter that the amendment allows Congress to enact implementing statutes. Of course, but Congress can enact federal legislation right now, without a new constitutional amendment. Once a constitutional amendment is in force, Congress is much less flexible in the kind of statute it can enact. With the victim elevated to constitutional status, Congress cannot define “victim” too narrowly, or deprive alleged victims of full opportunity to prove their victimhood without violating the amendment.

When generally desirable entitlements, such as restitution, are enacted by statute, the statute can give the judge the authority to reduce or waive restitution in appropriate cases. But the Victims’ Rights Amendment contains no such flexibility.

Thus, the battered wife who finally stabs her husband after years of being brutalized must be ordered to pay restitution. The same for the frustrated homeowner who burns down the neighborhood crackhouse. Will the owner of the crackhouse have an inalienable constitutional right to restitution?

We can all agree that speedy trials are good things — in the abstract. But what about cases when the prosecution and defense agree that more time is needed to track down witnesses, study scientific evidence, and meet with experts? The Victims’ Rights Amendment gives “victims” a constitutional right to a speedy trial, a right which, being constitutional, overrides the legitimate preparatory needs of both the prosecution and the defendant.

It is ironic that a Congress which professes to be committed to states’ rights and the Tenth Amendment is ready to foist such an immense unfunded mandate onto the states. The same members of Congress who complain about federal judges telling the states how to run their courts now propose an immense shift of power from the states to the federal courts which will be responsible for enforcing the Amendment.

If there is anything that the failure of three decades of “tough‐​on‐​crime” congressional bluster should have taught us, it is that Congress almost always makes matters worse when it intrudes in the criminal justice system, a system which the Framers intended to operate almost exclusively at the state, not federal, level.

One outcome of the Victims’ Rights Amendment is certain: victims by the tens of thousands will protest that they cannot advocate effectively in a legal forum without counsel. Criminal courts will become the province of three legal adversaries: the prosecutor, the defense counsel and the victim’s lawyer. Indigent victims — the overwhelming majority — will insist upon the appointment of counsel. If the accused is entitled to a “free” lawyer under the Sixth and Fourteenth Amendments, so is the victim, since according to Amendment sponsors, the very purpose of the Amendment is to elevate (self‐​selected) victims to the same constitutional status as the accused.

To the extent that the interests of violent crime victims need protection, this goal already is being achieved and will continue to be met through carefully crafted statutes that respect the diversity of the 50 states. The goal should not be met through hastily drafted federal constitutional amendments designed as election props.

The best we can do for victims is to decrease their numbers. Adding numerous procedural layers to our criminal justice system will not reduce the number of victims, nor will diverting scarce criminal justice resources into unnecessary and endless procedural sparring. It would be a pyrrhic victory indeed for the incumbent Congress and president to gain themselves a little extra advantage in one election cycle at the cost of immense, permanent damage to our precious Constitution.

About the Authors
Formerly an assistant attorney general for the state of Colorado, Dave Kopel is an associate policy analyst with the Cato Institute. Elisabeth Semel is a criminal defense attorney in San Diego, and legislative co‐​chair of the National Association of Criminal Defense Lawyers.