Mr. Chairman, distinguished members of the committee:
My name is Roger Pilon. I am vice president for legal affairs atthe Cato Institute and director of Cato's Center for ConstitutionalStudies. I want to thank the committee for inviting me to testifyon S.J. Res. 35, proposing a victims rights amendment to the UnitedStates Constitution.
Although I am opposed to amending the Constitution for thepurpose of protecting the rights of crime victims, I want to makeit very clear at the outset that I fully support the basic aims ofthis proposal. Too often when a prosecutortakes over the prosecution of a crime, the victim is all butforgotten. We need to do more than we sometimes do to help thevictims of crime. For both constitutional and practical reasons,however, I believe that this amendment is not the best way toaccomplish that end.
Amending the Constitution is a serious matter. Clearly, theprovisions of Article V that enable us to do so were put there tobe used. But just as clearly, experience has taught us that thoseprovisions are to be used only when circumstances plainly warrantit. When other, more flexible means are available to accomplish thesame ends-especially when we may need to refine what we do in lightof experience-prudence alone suggests that we employ such means,that we not lock ourselves inflexibly in our basic law, theConstitution.
On the subject at hand, federal, state, and local governmentsalready provide for the victims of crime.Through ordinary legislation or state constitutions they areachieving every aim of this proposal more quickly and with equaleffect and greater flexibility. Thus, there is no compelling reasonto pursue such ends by amending our basic charter ofgovernment.
But if there is no compelling reason to amend the Constitutionto provide for victims' rights, there are compelling reasons fornot amending the Constitution for that end. Some of those reasonsare theoretical, others are practical.
On the theoretical side, proponents of this amendment oftenspeak of a constitutional "imbalance" between the rights ofdefendants and the rights of victims. The Constitution listsnumerous rights of defendants, they say, but is silent regardingvictims.
There is a fundamental reason for that "imbalance." It has to dowith the very purpose and structure of the Constitution. As theDeclaration of Independence makes clear, the basic purpose ofgovernment is to secure our rights-against both domestic andforeign threats. To pursue that end, the founding generation wroteand ratified the Constitution. Through it they authorized,established, and empowered the institutions of government. But inthe process they also limited the exercise of the power they hadjust authorized and established.
The protections the Constitution affords defendants are clearexamples of such limitations. On one hand the Framers wanted agovernment strong enough to carry out the functions they hadassigned it. On the other hand they did not want government toexercise its powers in ways that would violate our rights. Theywere especially concerned to limit the police powers of government,the power to secure our rights; for they knew from experience thatin the name of so basic and worthy an end, great abuse might occur.That is why they left the police power almost entirely in the handsof the states, where it was closer to the people. And that is whysuch power as they gave to the national government was constrainedboth by enumeration and by the provisions of the Bill of Rights.The federal government had only those powers that the people,through the Constitution, had delegated to it, as enumerated in thedocument. And the exercise of that power wasfurther restrained by the rights of the individual, enumerated andunenumerated alike.
Thus, the Framers' constitutional approach was essentiallyguarded. They wanted to make it very clear, in our organic law,that government was limited to certain ends and was limited furtherin how it might pursue those ends. There is no place in thatapproach for "government benefits," for the modern welfare state.It is lean, limited government, empowered to do a few things, inlimited ways, leaving the individual citizen free to pursuehappiness however he wishes, provided only that he respect theequal rights of others to do the same, which government is there toensure.
It is not a little anomalous, therefore, to have an amendment tothe Constitution addressing the rights of victims of crime whenthere is so little federal power to begin with to address theproblem of crime. It would be one thing if the federal government,as at the state level, were required to attend to the rights ofvictims in connection with its general police power. But there isno general federal police power, as the Supreme Court hasrepeatedly said.
Moreover, such "benefits" as the Constitution does confer in thecriminal law context arise entirely because the government is themoving party in an adversarial matter. The benefits or rights ofdue process or trial by jury, for example, arise only because thegovernment has placed the accused in an adversarial relationship,at which time such rights kick in to limit the means government mayemploy. The situation is entirely different with crime victims.They stand in no adversarial relationship with the government suchthat the means available to the government must be restrained fortheir protection. What this amendment provides, rather, is closerto a true benefit from government.
This proposal has about it, then, the air of certain European,especially Eastern European, constitutions, which list "rights" notas liberties that government must respect as it goes about itsassigned functions but as "entitlements" that government mustaffirmatively provide. We have thus far resisted that tradition inthis nation. It would be unfortunate if we should begin it throughthis "back door," as it were.
But if the absence of any general federal police power makesthis amendment anomalous, still other implications for federalismare even more clear. By constitutionalizing certain minimalstandards in this area, for example, the amendment would precludestates from experimenting in ways that might fall below theminimum. Moreover, it appears from the language of Sections 1 and 5of the amendment that Congress would have the power to mandatestates to take measures to implement the provisions of Section 2,which amounts to nothing less than constitutionalizing a number of"unfunded mandates." If Congress has no such power, however, thenthe amendment may amount to an empty promise.
Finally, as a structural matter, such rights as are found in ourConstitution, either enumerated or unenumerated, are invokedordinarily when some governmental action either proceeds withoutauthority (e.g., Lopez, Morrison) or in violation of arecognized right (e.g., any authorized action that implicatesrights of speech or religion). Thus, the putative authority of thegovernment is pitted against the putative right of the individualor organization (to be free from such action, or from such anapplication of an otherwise authorized action).
Here, however, we have a three-way relationship, which raiseshavoc with our traditional adversarial system. How, for example, dowe resolve the potential conflicts among the authority of the stateto prosecute, the right of the accused to a speedy but fair trial,and the right of the victim to "adjudicative decisions that dulyconsider the victim's … interest in avoiding unreasonabledelay"? If judicial "balancing" poses serious jurisprudentialproblems in our adversarial system today-and it does-then thoseproblems will only be exacerbated under this amendment.
In the larger context, then, the rights of defendants that wefind in the Constitution make perfectly good sense. They arerestraints on government power. The federal government may pursuethe ends it is authorized to pursue, but it must respect our rightsin the process. The government may enact and enforce customs laws,for example, but it may not engage in warrantless searches of ourhomes or businesses in the process. And if it prosecutes us in thecourse of enforcing those laws, it must respect the rights ofdefendants as set forth in the Constitution and the Bill ofRights.
Thus, given the basic defensive way we constituted ourselves, itis not surprising that the rights of crime victims are notmentioned in the Constitution. That does not mean that there are nosuch rights, however, for the Seventh Amendment invokes the commonlaw, and that law entails the rights of victims to bring actionsagainst those who victimize them. We must not forget, that is, thatthe primary way in which victims have their rights vindicated isnot through the criminal but through the civil law. It is thebusiness of the state to protect us from each other, as much as itcan, and to punish those who injure us. It is our business to seekredress from those who injure us, to vindicate the rights that havebeen violated by the criminal.
That vindication may be achieved in part through the criminalproceeding, to be sure, for most victims have an interest and evena right in seeing the criminal get his comeuppance. But thecriminal proceeding belongs primarily to "the people," whoseinterests and rights may be identical to those of the victim, butmay also be at variance with those of the victim. Sometimes theprosecutor will want to put the criminal away, for example, butother times he may want to strike a deal with the criminal in orderto reach other, more dangerous criminals, criminals that are of noconcern to the victim, who wants this particular perpetratorpunished. In such cases, the crucial question is, whose forum isit? Under our system, where we delegated law enforcement for themost part to the state, it is the people's forum, with theprosecutor representing the interests of the people.
It is crucial, therefore, that there be two forums-criminal andcivil-for there are two sets of interests to be pursued, and theyare not always in harmony. It is for that reason, however, that itis 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 transportedto the criminal forum, confusion and conflict may ensue. That is avery real risk with this proposal.
Consider, for example, the victim's right "to adjudicativedecisions that duly consider the victim's ... just and timelyclaims to restitution from the offender," as set forth in Section 2of the proposed constitutional amendment. Perhaps such details aswould constitute a restitution order could be incorporated into theprosecutor's case against the defendant, aimed at determining hisguilt or innocence, but that kind of concern rests properly withthe victim, not with the people or their representative, theprosecutor. When representing separate parties, there is always thepotential for conflict of interest, of course. That is clear here.The victim's interest in restitution may vitiate punishment. Thepeople's interest in punishment may vitiate restitution. Whichinterest should prevail under this amendment? And would the failureto convict-perhaps because of the higher standard of proof for acriminal conviction-undermine any right of the victim to arestitution order-which might have been obtained in a civil actionagainst the defendant?
Thus, when we cloud the theory of our system of justice with anamendment of this kind, we give rise to all manner of practicalproblems. Section 2's promise of "adjudicative decisions" regardingvictims' safety, speedy trial, and restitution, for example, wouldseem to guarantee victims a right not simply to be present andheard at all criminal proceedings but to a separate victim'shearing on those matters. If that is how the provision is to beread-and surely there are courts that will read it that way-then wecan only imagine how many such hearings will arise in an alreadyoverburdened criminal justice system that plea bargains over 90percent of its cases.
More generally, however, practical questions surround the verynature of the victim's claims. In the proposed amendment they arecalled "rights," but it is unclear to me, at least, just how thoserights would operate, just how they are invoked, and how remediesfor their violation would work. Section 2, for example, says thevictim shall have "the right to adjudicative decisions that dulyconsider the victim's safety." That "right" is either so vague asto be all but meaningless, or it is not. If not, then what does itmean? Do not most prosecutors now take such matters as the victim'ssafety into account when they make decisions? How would thingschange under this amendment? Most important, would the victim havea claim against a prosecutor who was insufficiently considerate ofthe victim's safety? Section 1 purports to "establish" the rightsat issue. But Section 3 says, "[n]othing in this article shall beconstrued to … authorize any claim for damages." Are we tounderstand by that that the victim has no remedy when the "rights""established" by this amendment are ignored or violated? "Rights"like those are no rights at all.
There is, in short, a disturbing air of "aspiration" about thisproposal. Like the generous legacy in a pauper's will, it promisesmuch but delivers little. Clearly, rights without remedies areworse than useless: they are empty promises that in time undermineconfidence in the very document that contains them-the UnitedStates Constitution, in this case. But a remedy is ordinarilyrealized through litigation. Before this amendment goes anyfurther, therefore, it is incumbent upon those who support it toshow how victims will or might litigate to realize their rights,and what their doing so implies for other rights in ourconstitutional system. I can imagine several scenarios under thisamendment, none of which is clear, all of which-by virtue of beingconstitutionalized-will make the plight of victims not better butworse. We owe more than empty promises to those for whom the systemhas already failed once.
1. In fact, just to be perfectly clear on that,one of my earliest professional articles, written nearly a quarterof a century ago, was a piece lamenting that the crime victim wasthe forgotten person in our criminal justice system and arguing,among other things, that in most cases the victim should have thefirst crack at the criminal, through a system of victimrestitution, the state or public the second crack, through a systemof punishment. See Roger Pilon, "Criminal Remedies: Restitution,Punishment, or Both?" 88 Ethics 384 (1978).
2. See, e.g., 42 U.S.C. § 10606(1995)(passed as part of the Victims' Rights and Restitution Act of1990, Pub. L. No. 101-647, 104 Stat. 4820 (codified as amended inscattered sections of 42 U.S.C.)). Some 33 states haveconstitutional amendments that recognize the rights of crimevictims in various ways. Others do so through statute. For a chartdetailing the state constitutional amendments and statutes, seehttp://www.nvcan.org.