Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses to key objections raised by opponents.

by Steve Twist

National Network to End Domestic Violence
Position Statement on S.J. Res. 1 (undated)

1. While acknowledging the “very real problems victims face in seeking justice,” the Network concludes “[a] federal constitutional amendment ... is not likely to be the appropriate remedy... .”

The Network acknowledges, without enumeration, the “very real problems victims face.” Presumably the Network would not dispute the universal conclusion of the mainstream victims’ rights movement and every administration since Ronald Reagan’s, including the administration of Bill Clinton, that those “real problems” include the failure of victims to receive notice of proceedings, the exclusion of victims from proceedings that others may attend, the silence imposed on victims at critical stages including, release, plea, sentencing, and clemency proceedings, the failure of the courts to consider the victim’s safety, interest in avoiding unreasonable delay, and claims to restitution, and the victim’s lack of standing to address these “real problems.” These “real problems” result in real injustice and cause real harm to real people. Correcting these injustices is one of the core missions of the victims’ movement.

Despite acknowledging these problems, the Network concludes that a federal constitutional amendment “is not likely to be the appropriate remedy” to correct the “very real problems victims face.” It is curious that an American organization would take such a view. Presumably the Network would agree that federal constitutional amendments were “appropriate remedies”for securing rights for accused and convicted offenders. Indeed, almost all of the constitutional rights of defendants and convicted offenders exist only by amendment to the United States Constitution. Nowhere does the Network articulate any sound reasons for concluding that victims’ rights should not be accorded a remedy equal to that of accused or convicted offenders. In stark contrast to the Network’s silence, stand a myriad of well-respected, well-researched and intelligent persons and bodies that provide articulate and compelling reasons for a victims’ rights constitutional amendment.

First, more than 20 years ago the President’s Task Force on Victims of Crime concluded that a federal constitutional amendment was necessary to protect the rights of crime victims. Specifically, the Task Force noted,

The guiding principle that provides the focus for constitutional liberties is that government must be restrained from trampling the rights of the individual citizen. The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed.

Second, a constitutional scholar, Professor Larry Tribe of Harvard Law School, has pointed out that the rights proposed for crime victims in S. J. Res. 1

are the very kinds of rights with which our Constitution is typically and properly concerned -rights of individuals to participate in all those government process that strongly affect their lives.

Third, the Committee on the Judiciary of the United States Senate concluded that the Crime Victims Rights’ Amendment was consistent with

the great theme of the Bill of Rights--to ensure the rights of citizens against the deprecations and intrusions of government--and to advance the great theme of the later amendments, extending the participatory rights of American citizens in the affairs of government.

The Committee concluded,

it is appropriate that victims' rights reform take the form of a Federal constitutional amendment. A common thread among many of the previous amendments to the Federal constitution is a desire to expand participatory rights in our democratic institutions. Indeed, the 15th Amendment was added to ensure African Americans could participate in the electoral process, the 19th Amendment to do the same for women, and the 26th amendment expanded such rights to young citizens. Other provisions of the Constitution guarantee the openness of civil institutions and proceedings, including the rights of free speech and assembly, the right to petition the Government for redress of grievances, and perhaps most relevant in this context, the right to a public trial. It is appropriate for this country to act to guarantee rights for victims to participate in proceedings of vital concern to them. These participatory rights serve an important function in a democracy. Open governmental institutions, and the participation of the public, help ensure public confidence in those institutions. In the case of trials, a public trial is intended to preserve confidence in the judicial system, that no defendant is denied a fair and just trial. However, it is no less vital that the public--and victims themselves--have confidence that victims receive a fair trial.

Fourth, the National Governors Association, in a resolution supporting a Federal constitutional amendment observed:

The rights of victims have always received secondary consideration within the U.S. judicial process, even though States and the American people by a wide plurality consider victims' rights to be fundamental. Protection of these basic rights is essential and can only come from a fundamental change in our basic law: the U.S. Constitution.

Fifth, 42 State Attorneys General, in supporting the Crime Victims Rights Amendment, wrote,

Despite the best intentions of our laws, too often crime victims are still denied basic rights to fair treatment and due process that should be the birthright of every citizen who seeks justice through our courts. We are convinced that statutory protections are not enough; only a federal constitutional amendment will be sufficient to change the culture of our legal system.

Sixth, Attorney General Reno, after careful study, reported that:

Efforts to secure victims' rights through means other than a constitutional amendment have proved less than fully adequate. Victims' rights advocates have sought reforms at the State level for the past twenty years, and many States have responded with State statutes and constitutional provisions that seek to guarantee victims' rights. However, these efforts have failed to fully safeguard victims' rights. These significant State efforts simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims' rights.

Similarly, a comprehensive report from those active in the field of crime victim rights prepared by U.S. Department of Justice during the Clinton Administration concluded:

[a] victims' rights constitutional amendment is the only legal measure strong enough to rectify the current inconsistencies in victims' rights laws that vary significantly from jurisdiction to jurisdiction on the state and federal level.

Perhaps the Network knows more about our Constitution than Professor Tribe, every administration since Ronald Reagan, the Department of Justice, a bi-partisan majority of the Senate Judiciary Committee, the National Governor’s Association, 42 State Attorneys General, and the mainstream of the victims’ movement in the United States. If so, the Network should articulate its rationale, because in the face of its silence, the reasons for the Network’s opposition are indecipherable and incomprehensible.

2. We need “an evolving understanding of the needs of victims,” and “[a] constitutional amendment freezes in place, for all time, one set of solutions to the important issue of how to protect the rights of victims.”

Certainly the Network would not argue that because our understanding of the needs of defendants is “evolving,” that the constitutional amendments that provide defendant’s rights improperly “froze” those rights and therefore, should not have been ratified. It is unclear why the Network is willing to protect defendants’ rights by constitutional amendment yet not willing to protect victim’s rights, thereby consigning victims to second class citizenship. Moreover, the fundamental victims rights that will be guaranteed by a constitutional amendment have been well-accepted and well-settled for decades; memorializing them in our national law will not proscribe their ability to evolve. Just as the defendants’ rights that are memorialized in the constitution have evolved even post-amendment, so will the victims’ rights.

3. “The amendment may destabilize the important constitutional balance protecting the rights of those accused of crime.”

Nothing in the amendment “destabilizes” rights of the accused.

• The right to notice of proceedings does not – There is no constitutional right for a defendant to prevent a victim, or anyone else, from receiving notice of court proceedings.
• The right to notice of releases or escapes does not – There is no constitutional right for a defendant to prevent a victim from knowing when the defendant has escaped or is released.
• The right to not be excluded does not – There is no constitutional right for a defendant to exclude a victim from trial, even when the victim is also a witness.
• The rights to be heard at release, plea, sentencing, and clemency proceedings do not – There is no constitutional right for a defendant to silence a victim at these proceedings.
• The right to consideration for the victim’s safety does not – There is no constitutional right for a defendant to prevent a court from considering the victim’s safety when decisions are made. Indeed, victim safety is a legitimate and, according to the U. S. Supreme Court, a constitutional consideration when making release decisions.
• The right to consideration of the victim’s interest in avoiding unreasonable delay does not – It is undisputed that the defendant has a right to a fair and speedy trial and the right to counsel, which according to the U. S. Supreme Court, includes the right to an effective lawyer, meaning one that has had enough time to prepare a defense. But these rights do not prevent consideration of the victim’s interest in avoiding unreasonable delay.
• The right to consideration for the victim’s restitution claims does not – There is no constitutional right for a convicted offender to prevent the law from ordering restitution for the victim.
• The right to standing to enforce these rights does not – There is no constitutional right for a defendant to prevent a victim from asserting his or her rights in court.

4. “Amending the United States Constitution should be a remedy of last resort. Efforts should be made to enforce statutes that currently exist... .”

The federal constitutional amendment was first proposed over 20 years ago. It was proposed after consideration of the decades of experience with a justice system that treated crime victims with increasing injustice. Importantly, however, instead of pursuing a federal amendment 20 years ago, the victim’s movement chose the exact path the Network urges – we sought state reforms. The result of those efforts are 33 states with state constitutional amendments providing victim rights and many statutory provisions providing victim’s rights. Unfortunately, most of these have proven difficult if not impossible to enforce. Consequently, victims are now pursuing the “last resort” – a federal amendment. After 20 years of experience fighting to bring the promise of state and local laws into reality, it is clear that only our fundamental charter has the power to change the culture of our criminal justice system and provide justice to victims.

5. “The proposed victim’s rights amendment provides little if any additional relief for victims. The amendment explicitly states that it creates no new grounds for a new trial and no additional claims for damages, making its passage an empty promise to victims dealing with the trauma and aftermath of crime.”

Despite the Network’s rhetoric minimizing the value of the rights established by the Crime Victims’ Rights Amendment victims properly see great hope in the amendment. In study after study, victims report that participatory rights must be the core values of our justice system. The Network’s out of hand dismissal of the enforceability of rights indicates a lack of understanding of enforcement in the criminal justice system. First, the prohibition on seeking a new trial does not prohibit the victim from seeking reconsideration of every other proceeding where his or her right may be denied. Second, money damages have never been a way to enforce rights that can only be enforced in the criminal case itself. Money damages require a separate, collateral civil proceeding that could never protect and enforce a victim’s right during a criminal case. The best, most direct, and only effective method of enforcement of victims rights exists in the amendment; it is the grant of standing in Section 3 of the amendment. Consequently, if the Network seeks to avoid “empty promises to victims,” it should support the enforceable constitutional rights over statutory rights that have a 20 year track record of unenforceability.

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