A Bill of Rights for Crime Victims


Paul Cassell and Steve Twist*

While our Bill of Rights enumerates extensive rights for criminal defendants, it contains not a single word on behalf of crime victims. This imbalance is in no small part responsible for the myopic preoccupation that our courts have with the rights of those charged with crimes, without any consideration of the interests of those victimized.

How shocking it would be to describe a criminal justice system in which a defendant had no constitutional right to be treated fairly, no right to information about the progress of the case, no right to notice of when critical proceedings would be held, no right to be present and heard at those proceedings, and no right to a speedy trial -- in short, no constitutional rights at all. Yet today, this precisely describes the plight of a victim of crime.

In April during National Crime Victims' Week, Senators Jon Kyl (R-Ariz.) and Dianne Feinstein (D-Cal.) and Representative Henry Hyde (R-Ill.) introduced a constitutional amendment that would provide these basic rights to crime victims. The proposed Victims' Right Amendment (see page 15) would bring balance to a system whose scales of justice are tipped decidedly in favor of the accused.

How did we arrive at a system that gives so little consideration to the interests of victims? The problem is traceable to the peculiar evolution of the office of the public prosecutor. The first colonists imported the English common law tradition of private prosecutions, which gave a victim of a felony the right to initiate a criminal case against the offender. As a result, the framers of the Constitution probably saw little need for separate "victims' rights", because victims could act on their own.

Over time, public prosecutors gradually displaced the system of private prosecutions. While the reasons for this transformation are disputed, the undeniable effect was to exclude crime victims from meaningful participation in the criminal justice process. They lost any status as parties to the case. Their primary role became to report crimes to police and serve as witnesses if called. At the same time, it became accepted that prosecutors represented only the public, and not the victim.

This imbalance was exacerbated in the 1960's, when the Warren Court significantly expanded the rights of criminal defendants and constitutionalized most aspects of criminal procedure. Trial judges who had previously been able to accommodate victims' concerns informally within their courtrooms, now found that they had to follow prescribed formulas. Without a constitutional basis for considering victims' interests, a defendant's claim of a procedural right always prevailed. While protecting defendants' interests is not inherently undesirable, the one-sided expansion of defendants' rights with little consideration of victims' interests, slid victims completely out of the picture.

Each year, of every 100 Americans, three will be the victims of violent crime, while six will be the victims of a property crime. Yet when these victims come forward and report crimes, they often find that their interests are ignored. In many trials in America, the defendant is entitled to be present, while the victim must leave the courtroom and sit outside in the room for witnesses. Some victims do not even find out about critical proceedings. Even after the conviction of the defendant, victims have often been denied the right to speak at sentencing or parole hearings.

The idea for a federal constitutional amendment to protect crime victims was born in December 1982, when the President's Task Force on Victims of Crime issued its final report. The report concluded that "the criminal justice system has lost its essential balance" and proposed a constitutional amendment guaranteeing crime victims the basic rights to be present and heard at criminal proceedings. Following the 1982 recommendation, crime victims' advocates took the proposed amendment to the states. Since 1982, more than twenty states have adopted victims' amendments. In 1994 alone, voters in Alabama, Alaska, Idaho, Maryland, Ohio, and Utah have given their overwhelming approval.

While the state amendments vary in form and effect, they have generally produced greater consideration by courts of victims' interests and improved the treatment of crime victims throughout the process. The federal Victims' Rights Amendment would draw upon the successful experience of the state amendments and require the same protection for victims under the Federal Constitution. The amendment would guarantee victims the right to attend court hearings. At proceedings concerning bail, plea bargains, and sentencing, victims could speak -- not to dictate the courts decision, but to suggest what the decision should be.

The federal amendment would also guarantee victims protection in the process, including the right to a warning if a defendant escapes from custody. The amendment would also grant victims a right to a speedy trial, a right that defendants have, but usually never wish to see it enforced. Lengthy delays cause incredible suffering for crime victims, especially child victims. Victims deserve the same right to speedy justice. Victims also deserve an end to interminable delays in capital and other cases. The defendant's right to appeal should be protected, but courts should be required to rule on those appeals without unreasonable delay.

The federal amendment would establish this basic package of victims' rights, a floor below which states could not go. Victims' rights, no less than defendants' rights, would be "incorporated" through the Fourteenth Amendment and applied to the states under current constitutional doctrine. This works no new violence to the important value of federalism. Rightly or wrongly, the Supreme Court has already federalized many aspects of criminal procedure and extended substantial rights for defendants throughout the country. The proposed amendment simply adopts the view that victims' rights deserve equal treatment. The states will have the opportunity to review the wisdom of this judgement; thirty-eight states must ratify the amendment before it becomes effective.

Before the amendment can go to the states, however, it must obtain two-thirds approval in both Houses of Congress, which in recent months was the graveyard for the Balanced Budget Amendment and other proposals for constitutional change. While it is too early to make confident predictions, the Victims' Rights Amendment is a good prospect to defy the odds and obtain a congressional sendoff to the states. The amendment will likely enjoy the kind of extraordinary bipartisan consensus necessary to bring constitutional change. Both candidate Dole and President Clinton have endorsed the amendment, and both major parties have included support for a victims' Rights Amendment in their Presidential platforms. In recent years, state voters have given such amendments approvals as high as 92%. The American public recognizes what many criminal justice professionals seem to ignore -- that the system needs to recognize victims' interests.

Congress should review and approve the Victims' Rights Amendment. It is no accident that the symbol of justice is a balanced set of scales. Justice for both defendants and victims is a worthy goal to pursue. A Victims' Rights Amendment would help make that lofty goal a reality.

*Paul Cassell, a professor at the University of Utah College of Law, and Steve Twist, an attorney with Dial Corporation in Phoenix, are members of the Executive Board of the National Victim's Consitutional Amendment Network. A modified version of this article appeared in the Wall Street Journal.


2001 The Federalist Society