by Paul G. Cassell *
What will be the next amendment to the United States Constitution?
If you picked the Flag Burning or Balanced Budget Amendment, you
overlooked an even more widely-supported proposal the Victims'
Rights Amendment which stands well on its way to congressional
passage. Though it enjoys support from a broad coalition of bleeding
heart conservatives and hard nosed liberals, the Amendment has been
little noticed. Even Al Gore's endorsement of it in July drew no
headlines amid his support for controversial firearms regulations.
Yet the Amendment will herald far-reaching reforms of our criminal
justice system and should be more widely discussed.
The Victims' Rights Amendment is rooted in the simple idea that
victims of crime, no less than their perpetrators, deserve a role
in the criminal process. To that end, the federal Amendment matches
constitutional protections for criminal defendants with a bill of
rights for victims of violent crimes. They would receive the right
to notice of court hearings, to attend those hearings, and to speak
where appropriate, such as at bail, plea, and sentencing proceedings.
Victims would also be guaranteed the rights to a speedy trial, to
be notified when an offender is released or escapes, to have judges
consider their safety before granting bail, and to receive restitution
from a convicted offender.
These rights restore victims to their original place in the criminal
justice system. At the founding of our nation, victims actively
pursued criminals, even serving as private prosecutors if they wished.
Over time, for reasons that have yet to be fully explained, the
victims' role was diminished to serving as a mere witness in the
proceedings. The court's failure to recognize that victims have
wholly legitimate interests in the outcome of prosecutions led to
a victims' rights movement that, in recent years, has successfully
reasserted a role for victims. Since 1988, thirty-one states have
enshrined victims' rights in their own state constitutions
The swelling number of state amendments reflects a near national
consensus that victims belong inside the criminal justice process,
not outside to be given a voice, not a veto, in the decisionmaking.
With the state enactments, however, have come mounting frustrations
for victims. Old ways die hard in the nation's courts. Victims'
rights provisions have too often failed in the face of bureaucratic
habit, traditional indifference, sheer inertia, or the mere mention
of an accused's rights even when those rights are not genuinely
threatened. A recent study by the National Institute of Justice
found that "large numbers of victims are being denied their
legal rights," due in no small part to the lack of authoritative
status of the state provisions. For example, even in several states
identified as giving "strong protection" to victims' rights,
fewer than 60% of the victims were notified when defendants were
sentenced, and fewer than 40% were notified of the pretrial release
of the defendant. A follow-up analysis of the same data found that
racial minorities are the least likely to be afforded their rights.
The Justice Department similarly concluded that the current "haphazard
patchwork" of rules is "not sufficiently consistent, comprehensive
or authoritative to safeguard victims' rights."
The victims' movement thus has a strong interest in taking victims'
rights to the next level the federal Constitution
and converting paper promises into real guarantees. Federal constitutional
protection for victims would unequivocally signal the nation's instructions
to its criminal justice system that victims must be respected. There
is widely shared agreement on this proposition, explaining why the
Victims Rights Amendment enjoys congressional support spanning an
ideological spectrum from Strom Thurmond to Joseph Biden, and is
the only constitutional amendment endorsed by the Clinton-Gore Administration.
Bowing to this broad support, the Amendment's critics primarily
focus their attacks, not on underlying principles, but rather on
mechanics of implementation. Some opponents have argued that the
Amendment does not belong in the Constitution, because it does not
address the political architecture of the country. Yet the Amendment
in fact follows the great themes of the Bill of Rights to
protect citizens against governmental misconduct while also
advancing the principles of the later amendments giving citizens
greater participation in governmental processes.
Other opponents have argued that victims' rights should be left
to the vagaries of state protections, rather than protected in our
nation's charter. The ACLU, for example, has sounded the alarm that
the Amendment constitutes a "significant intrusion of federal
authority into a province traditionally left to state and local
authorities." It is noteworthy that this federalism objection
comes from the ACLU, which never was heard to protest when the Supreme
Court "significantly intruded" on state handling of criminal
justice issues in the 1960s. The Victims Rights Amendment does not
require reopening the intense debate surrounding these Warren Court
precedents, but rather merely agreement that victims deserve equal
treatment a national commitment that, if federal constitutional
rights extend to criminal defendants, they should also extend to
Indeed, it is precisely because of the nationalization of criminal
procedure that victims now find themselves needing constitutional
protection. In an earlier era, it may have been possible for judges
to informally accommodate victims' interests. But today the coin
of the criminal justice realm is constitutional rights. Without
any such rights, victims inevitably become second-class citizens
in the courts. Judges find it convenient to give absolute precedence
to any asserted constitutional claims by defendants over victims,
never searching for the reasonable alternatives to accommodate the
interests of both. As a result, the lack of a federal amendment
poses the greatest danger to the states, preventing them from giving
full effect to their decisions to protect victims. That is why the
National Governor's Association a long-standing friend of
federalism has strongly endorsed the Amendment.
Within the next few weeks, the Senate Judiciary Committee is expected
to overwhelmingly pass the Victims' Rights Amendment. If the Senate
then approves by the required two-thirds majority, as knowledgeable
observers think likely, it will be the first time in recent years
that the Senate will have approved a constitutional amendment. From
there, the House can be expected to give its assent, as it has with
some other popular constitutional amendments. State ratification
would likely follow in due course. If so, victims will at last return
to their proper, central place in the administration of criminal
* Mr. Cassell is a professor at the University of Utah College of
Law and a member of the Executive Board of the National Victims'
Constitutional Amendment Network.