The Victims' Rights Amendment

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 their victims.

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 justice.

* 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.


2001 The Federalist Society