Victims Would Be Better Served by Looking to the States, Where Most Laws Are Enforced.

August 31, 1998 • Commentary
This article appeared in Insight on August 31, 1998.

Are the victims of crime too often forgotten by America’s criminal‐​justice system? Absolutely. Is a constitutional amendment the way to solve that problem? Absolutely not. With the best of intentions, proponents of a victims‐​rights amendment are ignoring not only its problems but solutions closer at hand. No one doubts that victims of crime face a daunting legal situation. In places where municipal services have broken down, like the nation 11 capital, crimes often are not even investigated. But in most places, once investigators take over a Case victims are remembered only when they’re useful to the case. That leaves those who are robbed, raped, burgled or assaulted — to say nothing of those whose loved ones are murdered — to fend for, themselves.

What is it victims want? There are two things, at bottom. They want first to be made whole, insofar as that’s possible. And in most cases they want wrongdoers punished. Unfortunately, our system, as it has evolved, is stacked heavily toward the second goal, which leaves victims on their own.

There was a time centuries ago when crime was treated mostly as a personal matter. Victims “prosecuted” wrongdoers in a way that focused primarily on righting the wrong — on making the victim whole again. When the king started taking over the prosecution, however, and prosecuting for a breach of the king’s peace, all of that changed. The focus shifted from the victim’s interests to the public’s interests.

Thus, today we have two proceedings. The state prosecutes those charged with crimes and, if they’re found guilty, locks them up — to punish and to preserve the peace. Once that’s done, the victim can bring a civil action against the wrongdoer, but the chances of being made whole by someone locked away are usually slim. Still, it’s important to keep in mind that a crime leads to the possibility of two legal proceedings: the state’s action against the accused in the name of the people, to punish and preserve the peace; and the victim’s action against the accused, to be made whole again. Recall the O.J. Simpson case: Even when the state failed in its effort to get a conviction, the victims were able to secure a civil judgment.

The problem; however; is that the state today is the dominant figure. At every tum, its interests trump the interests of the victim. Unless you’re “lucky” enough to be wronged by a wealthy criminal, the king goes first and you get the scraps. As a practical matter, of course, that may be the best we can do in many cases — especially where the aim of getting a violent criminal off the streets should indeed trump any individual interests. But too often, in cases that lend themselves to it, the system fails to search for creative remedies that would take the interests of the victim into account first. The victim is simply forgotten in the name of “putting the criminal away.”

It may be time, then, to rethink our entire approach to crime. In many cases, we may want to put the victim first, not the stale. Among other things, that would bring what’s really at issue into focus: It’s not simply that the criminal committed some abstract wrong against “the people”; more importantly, he committed a real wrong against a real He needs to take responsibility for that, and for the damage that now needs to be repaired, to the extent that is possible. In short, we need to get “real” about crime, to bring criminal and victim face to face.

Each crime, however, is unique. Some will lend themselves to such an approach, others will not. That suggests that we need to be flexible, to learn from experience and to be as close to the individuals involved as possible.

But that is precisely why we don’t want to do this through a constitutional amendment. Amendments, which are difficult to enact and difficult to retract, set things in stone. Statutes, by contrast, can be easily changed with experience. Fortunately, states already are acting in this area, passing measures that are much closer to the problem.

But amendment supporters say the problem is deeper — that there is a constitutional “imbalance” between the rights of defendants and the rights of victims. The Constitution lists numerous rights of defendants, they say, but is silent about victims. That’s true, but not without reason, which takes us to the very purpose and structure of the Constitution. As the Declaration of Independence makes clear, we institute government to secure our rights — including rights against criminals. Toward that end, the Constitution authorizes power. But it also limits power — nowhere more clearly than toward defendants.

The Founders wanted a government strong enough to carry out its functions, but they didn’t want it so strong that it would violate rights in the process. In fact, they were especially concerned to limit the police power of government, the power to secure rights, for they knew from experience that in the name of so basic and worthy an end, great abuse might occur. That’s why they left the police power almost entirely in the hands of the states, where it was closer to the people.

It would be anomalous, then, to have an amendment addressing the rights of crime victims when there’s so little federal power to begin with to address the problem of crime. It would be one thing if, in connection with its police power, the federal government were required to attend to the rights of victims. But except in limited circumstances, there is no federal police power.

Thus, the constitutional rights of defendants make perfect sense. They’re restraints on government power. The federal government may enforce customs laws, for example; but‐​at trials to do so it can’t introduce evidence gained from’ warrantless searches.

Given the defensive way we constituted ourselves, then, it’s not surprising that the rights of crime victims are not explicitly in the Constitution. But that doesn’t mean they’re not there, for the Seventh Amendment incorporates the common law, and the rights of the victim are at the core of that law. Thus, the primary way victims vindicate their rights is through the civil, not the criminal law. It’s the state’s business to protect us from criminals arid to punish them. It’s our business to vindicate our right to be made whole.

Vindication may be achieved partially through the criminal, proceeding, of course, for most victims have an interest and even a right in seeing criminals punished, but that forum belongs primarily to “the people” whose interests and rights may not be identical to those of the victim; sometimes the prosecutor will want to put a criminal away, for example; but other times he may want to plea, bargain — to reach other, more dangerous criminals, who are of no concern to the victim.

It is crucial, therefore, that there be two forums — criminal and civil — for there are two sets of interests at issue, and they’re not always harmonious. That’s why it’s crucial also to recognize that an uncritical concern for victims’ rights may very well muddy the water. More precisely, when rights that belong properly in the civil forum are transported to the criminal forum, confusion and conflict may arise.

Consider the amendment’s proposal of a right to “an order of restitution from the convicted offender.” Perhaps such an order could be incorporated in the prosecutor’s case, but the prosecutor’s principal job is to represent the people, not the victim. When representing separate parties, there’s always the potential for a conflict of interest; of course. That’s clear here. The victim’s interest in restitution may vitiate punishment. The people’s interest in punishment may vitiate restitution. Which interest should prevail under this amendment? And would the failure to convict — perhaps because of the higher standard of proof for a criminal conviction — undermine any right of the victim to a restitution order — which might have been obtained in a civil action against the defendant?

Thus, when we cloud our system of justice with an amendment like this, we invite all manner of practical problems. And those problems go to the very nature of the victim’s claims, which the amendment calls “rights.” It is unclear just how those rights would operate, how they are invoked and how remedies for their violation would work. Regarding any release from custody, for example, the amendment entails victims a right to “consideration” for their safety. Yet that right is so vague as to be meaningless: most prosecutors already take such consideration, into account. How would the situation change under the amendment? Most importantly, would the victim have a claim against a prosecutor who was insufficiently considerate? Section 2 of the proposed amendment appears to grant the victims standing to assert their rights. But the rest of Section 2 takes everything back: “nothing in this Article shall give rise to damages against the United states, a State a political subdivision, or a public official.” That suggests that the victim has no real rights at all.

There is, in short, a disturbing air of “aspiration” about this amendment. Like the generous legacy in a pauper’s will, promises much but delivers little. Clearly, rights without remedies are worse than useless: they are empty promises that in time undermine confidence in the document that contains them — here, the Constitution. Remedies ordinarily are realized through litigation. One wants to know, therefore, how victims will or might litigate to realize their rights, and what their doing so implies for other rights in our constitutional, system. Several scenarios under this amendment are possible. None is clear, yet all — by virtue of being constitutionalized — may make the plight of victims not better but worse. We owe more than empty promises to those for whom the system has already failed.

What we owe victims is a better opportunity, where appropriate, to confront those who have wronged them so they might work out a plan of restitution — for the benefit of both victim and criminal. That will take enlightened legislation and prosecutors. And that is the business, primarily, of the states.

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