Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses
to key objections raised by opponents.
by Steve Twist
Letter from Law Professors
Regarding the Proposed Victim's Rights Constitutional
Amendment, July 17, 2003
1. "There is no pressing need for a victim's rights amendment, as virtually every right provided victims by the amendment can be or is already protected by state or federal law."
The law professors' arguments are oddly reminiscent of the critics of James Madison and the Bill of Rights. When James Madison took to the floor of the U.S. House of Representatives and proposed the Bill of Rights, during the first session of the First Congress, on June 8, 1789, he was met with severe criticism. The critics claimed the twelve amendments were unnecessary because the states had bills of rights. Madison responded with the observation that "not all states have bills of rights, and some of those that do have inadequate and even 'absolutely improper' ones."
Victims' rights are no different. Not all states have constitutional rights, nor even adequate statutory rights. Further, the existing laws, state constitutional and statutory have failed, despite the victims' movement's best efforts to protect victims. Harvard Professor Larry Tribe, perhaps the nation's pre-eminent scholar of constitutional law, has observed this failure : " . . . there appears to be a considerable body of evidence showing that, even where statutory or regulatory or judge-made rules exist to protect the participatory rights of victims, such rights often tend to be honored in the breach . . . ." As a consequence he has concluded that crime victims' rights "are the very kinds of rights with which our Constitution is typically concerned."
Recognizing the importance of placement of rights in the constitution, James Madison observed that the constitution would "have a tendency to impress some degree of respect for [the rights], to establish the public opinion in their favor, and rouse the attention of the whole community . . . as [they] acquire, by degrees, the character of fundamental maxims. . . as they become incorporated with the national sentiment . . . ." History makes clear that the only way to make respect for the rights of crime victims "incorporated with the national sentiment," is to make them a part of "the sovereign instrument of the whole people," the Constitution.
2. "The Amendment could lead to burdens on courts and prosecutors ... ."
The amendments that established rights for criminal defendants led to "burdens on courts and prosecutors" that they should be repealed and yet this not sufficient reason to assert that those rights should not have been created. There is no rationale basis for why victims are to be accorded an inferior status in our law. If the professors' logic carried the day "burden on courts and prosecutors" would be a trump card to all constitutional amendment, even if otherwise necessary to establish fairness and justice. The reality is that justice often requires burdens to be borne and the burden of injustice imposed on crime victims is far greater than any administrative burden that theoretically would befall the courts.
3. "Th[e] adjudicative decisions provision appears to create a right to special hearings on these issues (safety, delay, and restitution), separate from other proceedings. It also appears to require additional judicial orders and decisions. This could result in separate substantive proceedings, burdening an already burdened court system."
The law professors are wrong about the "appearance" and the substance of the adjudicative decisions clause. It does not create a right to "special hearings." As the text explicitly reads, the right provided is the right to decisions, when made, that reflect "due consideration" for the identified victim's interests. The emphasis in the text is on "due consideration" for the victims interests whenever those interests are already implicated in proceedings throughout the case. The legislative history also makes this clear.
4. "The [adjudicative decisions clause] may involve the courts in monitoring the choices of police and corrections officers in the interest in safety. It could lead to standardless determinations of an accused's dangerousness throughout the process as well."
On page one of the law professors' letter the professors state that a reason the proposed amendment is unnecessary is because "Victim safety as a consideration in pretrial release already exists under federal and state law." Presumably then, for the law professors, it is acceptable for this right to be in statute, just not in the constitution. There is no reason to believe that the phrase "due consideration for the victim's safety" could lead to "standardless determinations of an accused's dangerousness" any more than the current law, which the professors do not criticize, and therefore, implicitly approve. Further, the courts have standards to decide such cases. See U. S. v. Salerno, 481 U.S. 739 (1987). Despite this, the professors misread the plain text. Under no circumstances could the phrase "adjudicative decisions" ("adjudge:" to determine or decide judicially, as a case) be properly construed to cover decisions by police or corrections officers. Not even the most ardent exponents of a "living constitution" doctrine of interpretation could stretch the meaning of these words that far.
5. Under Section 2 as written, a victim could demand a special judicial hearing whenever the victim asserted an interest in "avoiding unreasonable delay."
The right proposed is a right to "due consideration" when issues comes before the court for "adjudicative decisions" that implicate the victim's stated interests. The emphasis in the text is on "due consideration" for the victims interests whenever those interests are already implicated in proceedings throughout the case. The legislative history makes this clear. The text does not create a right to demand "special judicial hearings" but rather simple a right to ask that consideration be given to the victim's interests when already scheduled decisions are to be rendered. There may be extraordinary circumstances of delay that would allow a victim to bring an independent motion regarding his or her rights but even in that proceeding the victim's right is to "due consideration" in the face of the defendant's and the state's ability to adequately prepare.
6. [The 'avoiding unreasonable delay clause'] could be used to deny defendants needed time to gather and present essential evidence in order to demonstrate their innocence of the crime charged. It could also impair a prosecutor's ability to develop the evidence necessary to prove guilt beyond a reasonable doubt."
No intellectually honest assessment of the plain meaning of the proposed text could lead to these conclusions. Here is the text in full: "A victim of violent crime shall have the right to ... adjudicative decisions that duly consider the victim's ... interest in avoiding unreasonable delay... ." The words, "duly consider" and "unreasonable delay," simply cannot be read to mean "deny" to an accused "needed time" to present "essential evidence" to demonstrate "innocence." The right to have an interest in avoiding unreasonable delay duly considered is not the right to veto or force anything.
7. "The right of victims to be 'reasonably heard' at plea proceedings could hamper prosecutorial efforts. How much weight judges must give to a victim's objection to a plea is uncertain, because the Amendment is not clear whether the state must demonstrate a 'compelling' or 'substantial' interest in the bargain and how a judge should evaluate valid prosecutorial concerns. ... Even a small increase in trials because of victim objections would impose heavy burdens on prosecutor's offices and the courts."
The manifest errors in this passage are many. First, evidence from those few jurisdictions where the victim's right to be heard during plea proceedings has been a part of the system entirely rebut the argument that the amendments rights "could hamper prosecutorial efforts." For instance, in Arizona victims have exercised such a right for more than a decade and it does not "hamper" prosecutions. Perhaps that is why, reporting on their experiences, both the Pima County Attorney (a Democrat) and the Maricopa County Attorney (a Republican) have testified in support of the amendment.
Second, the weight judges give to the views of the victim will be up to the judge's evaluation of what is in the "interest of justice." This is the universal standard the courts follow in determining whether to accept or reject a plea agreement. A victim should be one of the voices that the court hears on what is or is not in the "interest of justice." Third, the amendment's restrictions clause identifies two standards for restricting the rights of victims, "substantial interest" and "compelling necessity." Application of either standard depends on the interest to be balanced, the lower standard of "substantial interest" applying to matters of "public safety" and the "administration of criminal justice." Importantly, each of these standards is well-known to the courts and their inclusion in the text of the amendment will alleviate years of litigation requiring the court to identify the proper standards. Finally, there have been no increases in the rate of cases going to trial in Arizona because of the victim's right to be heard at plea proceedings. Indeed, in no jurisdiction has such an increase been documented. Simply put, the argument of the law professors is, at best, a straw man.
8. " The right to be heard might well create a right to... state-provided counsel... ."
The right to counsel is explicit in the 6th Amendment and therefore creates the right to state-provided counsel for accused and convicted offenders. There is NO right to counsel written into the Crime Victims Rights Amendment, and none can be inferred.
9. "There are serious dangers in amending the Constitution in the manner provided by S. J. Res. 1."
Despite the breadth of this attack, there is only one "serious dangers" identified by the law professors - that the language of the amendment "does not explicitly protect defendant's rights from abridgement under the Amendment. ... At best [the language of the amendment] suggests that courts would have to engage in a case-by case balancing of the rights of the accused and the rights of the victim."
Nothing in the proposed amendment will "abridge" the fundamental rights of defendants. Basic constitutional law dictates that the proposed amendment cannot diminish other constitutional rights.
Vague assertions that "fundamental constitutional rights will be undermined," have little value other than to inflame the debate. The amendment is not an assault on the fundamental rights of the defendant. The Constitution and its rights are not "a zero-sum game." Rights of the nature proposed by the amendment do not subtract from those rights already established, they merely add to the body of rights that all Americans enjoy.
Professor Tribe concurs in this analysis when he writes, "no actual constitutional rights of the accused or of anyone else would be violated by respecting the rights of victims in the manner requested." The courts of our nation are fully capable of and regularly do balance the constitutional rights of victims and the constitutional rights of defendants and offenders, giving full effect to the rights of each. This amendment does not fundamentally alter that role of the court.
10. "Section 3 explicitly forbids courts or Congress to provide money damages to victims for violations of their rights. The creation of a constitutional right without a meaningful remedy for many contradicts one of the very principles of justice - that for violation of a right there must be a remedy. Injunctive relief for denial of rights, while possible under the amendment, may often provide an inadequate remedy, and bringing injunctive actions against courts and prosecutors would create additional uncertainty in the criminal justice process."
The preferred remedy is expressly included in the text of the proposed amendment: standing. The grant of standing in Section 3 means that victims will have the right to "stand" in court and ask for orders to protect their rights. While the law professors dismiss this remedy as "inadequate," that position ignores the fact that standing is the exact way in which defendants' rights are enforced. Further, money damages would not be an effective means of enforcing rights - those of the victim or the accused - recognizing this, the amendment does not make them a remedy.
11. "Section 3 of the amendment not only subjects state criminal proceedings to congressional oversight, but also creates new burdens on the federal courts to interpret and apply the Amendment."
The power to "enforce" the rights in the amendment is not the power to "oversee" state criminal proceedings, nor is it the power to define or implement. The defendant's rights to due process and equal protection, grounded in the 14th Amendment, are subject to the very same enforcement clause language found in the victims' rights amendment and that language has not led to "congressional oversight" of state proceedings. Federal courts daily make decisions interpreting the rights established; and the "burden," if indeed any, of such decisions must be borne when the demands of justice require it. Justice demands it now for crime victims.
12. "Victims of economic crimes ... would have no constitutional rights."
...nor would the law professors support them. Enough said.