A Victims’ Rights Amendment

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Mr. Chairman, distinguished members of the committee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to thank the committee for inviting me to testify on S.J.Res. 6, a proposed amendment to the Constitution of the UnitedStates "to protect the rights of crime victims."

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. [1] Too often when aprosecutor takes over the prosecution of a crime, the victim is allbut forgotten. We need to do more than we sometimes do to help thevictims of crime. At the same time, for both constitutional andpractical reasons, this amendment is not the best way to accomplishthat 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 inlight of experience--prudence alone suggests that we employ suchmeans, that we not lock ourselves inflexibly in our basic law, theConstitution.

On the subject at hand, federal, state, and local governmentsare already moving, and have been for some time, to better providefor the victims of crime. [2] Throughordinary legislation or state constitutions they are achievingevery aim of this proposal more quickly and with equal effect andgreater flexibility. Thus, there is no compelling reason to pursuesuch ends by amending our basic charter of government.

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. [3] And the exercise of thatpower was further restrained by the rights of the individual,enumerated and unenumerated alike.

The entire approach of the Framers to constitutionalism, then,was essentially guarded. They wanted to make it very clear, in ourorganic law, that government was limited to certain ends and waslimited further in how it might pursue those ends. There is noplace in that approach for "government benefits," for the modernwelfare state. It is lean, limited government, empowered to do afew things, in limited ways, leaving the individual citizen free topursue happiness however he wishes, provided only that he respectthe equal rights of others to do the same, which government isthere to ensure.

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 recently madeclear. [4] This amendment has about it,then, the air of certain European, especially Eastern European,constitutions, which list "rights" not as liberties that governmentmust respect as it goes about its assigned functions but as"entitlements" that government must affirmatively provide. We havethus far resisted that tradition in this nation. It would beunfortunate if we should begin it through this "back door," as itwere.

But if the absence of any general federal police power makesthis amendment anomalous, still other implications for federalismare even more clear. By constitutionalizing certain "minimal"standards 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 Section 5 of theamendment that Congress would have the power to mandate states totake measures to implement the provisions of section 1, whichamounts 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) or in violation of a recognizedright (e.g., any authorized action that implicates rights of speechor religion). Thus, the putative authority of the government ispitted against the putative right of the individual or organization(to be free from such action, or from such an application of anotherwise 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 "a final disposition of theproceedings relating to the crime free from unreasonable delay"? Ifjudicial "balancing" poses serious jurisprudential problems in ouradversarial system today--and it does--then those problems willonly 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 incorporated thecommon law into our constitutional order, by reference, and theright of victims to bring actions against those who victimize themis at the core of the common law. We must not forget, therefore,that the primary way in which victims have their rightsvindicated is not through the criminal but through the civil law.It is the business of the state to protect us from each other, asmuch as it can, and to punish those who injure us. It is ourbusiness to seek redress from those who injure us, to vindicate therights that have been 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 theproceeding belongs primarily to "the people," whose interests andrights may be identical to those of the victim, but may also be atvariance with those of the victim. Sometimes the prosecutor willwant to put the criminal away, for example, but other times he maywant to strike a deal with the criminal in order to reach other,more dangerous criminals, criminals that are of no concern to thevictim, who wants this particular perpetrator punished. In suchcases, the crucial question is, whose forum is it? Under oursystem, where we delegated law enforcement for the most part to thestate, it is the people's forum, with the prosecutor representingthe 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 an order ofrestitution from the convicted offender," as set forth in Section 1of 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. Most generally, those problems surround the very natureof the victim's claims. In the proposed amendment they are called"rights," but it is unclear to me, at least, just how those rightswould operate, just how they are invoked, and how remedies fortheir violation would work. In determining any release fromcustody, for example, the victim would have a "right" to"consideration" for his 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 "consideration" intotheir calculations? How would things change under this amendment?Most importantly, would the victim have a claim against aprosecutor who was insufficiently considerate? Section 2 of theproposed amendment grants the victim standing to "assert" therights established by the amendment--whatever that means. But therest of Section 2 takes everything back, suggesting that the victimhas no real "rights" after 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.


Notes

[1] In fact, justto be perfectly clear on that, one of my earliest professionalarticles, written nearly 20 years ago, was a piece lamenting thatthe crime victim was the forgotten person in our criminal justicesystem and arguing, among other things, that the victim should havethe first crack at the criminal, through a system ofvictim restitution, the state or public the second crack, through asystem of 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 theVictims' Rights and Restitution Act of 1990, Pub. L. No. 101-647,104 Stat. 4820 (codified as amended in scattered sections of 42U.S.C.)). Some 29 states have constitutional amendments thatrecognize the rights of crime victims in various ways. Others do sothrough statute.

[3] As the TenthAmendment makes clear: "The powers not delegated to the UnitedStates by the Constitution, nor prohibited by it to the States, arereserved to the States respectively, or to the people."

[4]United Statesv. Lopez, 115 S.Ct. 1624 (1995).

Roger Pilon

Committee on the Judiciary
United States Senate