Chances are that most Senators have not re
ally read the proposed Victims' Rights Amendment, which is scheduled to come to the floor for the first time on April 25. After all, it's kind of wordy-almost as long as the Constitution's first 10 amendments (the Bill of Rights) combined. And you don't have to go far into it to understand two key points.
The first is that a "no" vote would open the way for political adversaries to claim that "Senator So-and-so sold out the rights of crime victims." This helps explain why the proposed amendment has a chance of winning the required two-thirds majorities in both the Senate and the House. Sponsored by Sen. Jon Kyl, R-Ariz., it has 41 co-sponsors (28 Republicans and 13 Demo-crats), including Dianne Feinstein, D-Calif., and has garnered rhetorical support from President Clinton, Vice President Gore, and Attorney General Janet Reno. (The Justice Department has hedged its endorsement of the fine print because of the deep misgivings of many of its officials.)
The second point is that even though the criminal justice system often mistreats victims, this well-intentioned proposal is unnecessary, undemocratic, and at odds with principles of federalism. Unnecessary because victims' groups like Mothers Against Drunk Driving have far more political clout than do accused criminals. Victims' groups can and have used this influence to push their elected officials to augment the victims' rights provisions that every state has already adopted. These include both statutes and (state) constitutional amendments, not to mention federal legislation, such as the Violence Against Women Act. Undemocratic and inconsistent with federalism because this proposal-like others currently in vogue-would shift power from voters and their elected officials (state and federal alike) to unelected federal judges, whose liberal or conservative predilections would often influence how they resolve the amendment's gaping ambiguities.
None of this is to deny that many victims-especially in poor and minority communities-are still given short shrift by prosecutors, judges, and parole officials, or that further legislation may be warranted. But would enshrining victims' rights in the Constitution be more effective than enumerating them in ordinary statutes?
Consider the proposed amendment's specific provisions. They would guarantee every "victim of a crime of violence" the right to be notified of and "not to be excluded from" trials and other public proceedings "relating to the crime," as well as the right "to be heard" before critical decisions are made on pre-trial release of defendants, acceptance of plea bargains, sentencing, and parole. In addition, courts would be required to consider crime victims' interests in having any trial be "free from unreasonable delay," and to consider their safety "in determining any conditional release from custody relating to the crime." Other provisions would entitle victims to "reasonable notice of a release or escape from custody relating to the crime" and "an order of restitution from the convicted offender."
All very worthy objectives. But rights are enumerated in the Constitution mainly to protect powerless and vulnerable minorities-such as criminal defendants, who face possible loss of their liberty or even loss of life-from abuse by majoritarian governments. Amending the Constitution to promote popular causes is rarely a good idea, and advocates of the proposed Victims' Rights Amendment have failed to identify any legitimate interests of victims that cannot be protected legislatively, or any constitutional rights of defendants that stand in the way.
Moreover, to think that putting into the Constitution such benignly vague language as "free from unreasonable delay" will have some magical effect-such as cutting through the bureaucratic inertia and resistance that some say have blunted the effect of victims' rights statutes-is both fatuous and belied by our history. And any effort to add enough detail to eliminate ambiguities would distend our fundamental charter into something more like the Code of Federal Regulations.
Of course, at some point the objective of promoting victims' rights bumps up against other worthy goals. They include protecting defendants' rights to due process of law and other procedural protections against wrongful conviction, and giving prosecutors discretion to negotiate plea bargains with some defendants when necessary to get evidence against others.
If the courts were to construe the proposed amendment so narrowly as to leave such traditional rules and practices undisturbed, it would amount to vain tokenism. If, on the other hand, they were to construe the amendment broadly, it could foment legal confusion; set off torrents of new litigation by and among people claiming to be "victims" (a term that the amendment does not define); saddle the legal system with new costs and delays; and even increase the risks that innocent defendants would be convicted, that some of the guilty would escape punishment, and that some victims would be further victimized.
The most obvious risks the amendment poses to innocent defendants-and as President Clinton has discovered, we are all potential defendants--have been detailed by the American Civil Liberties Union. Courts could use the amendment to deny defendants and their counsel enough time to gather evidence of innocence before trial. They might also allow all victim-witnesses to be present when other witnesses are on the stand, even when this could compromise the reliability of the victim-witnesses' own testimony. (Current rules often require sequestering witnesses to prevent them from influencing one another's testimony.)
The risk of a guilty person's escaping punishment would be enhanced if courts used victims' objections as a basis for blocking prosecutors from entering legitimate plea bargains or for requiring them to justify such plea bargains by disclosing their strategies and any weaknesses in their evidence. Consider, for example, what might have happened to the Justice Department's effort to bring now-convicted Oklahoma City bomber Timothy McVeigh to justice if the Victims' Rights Amendment had been in effect in 1995.
Hundreds of victims-the injured and the survivors of the 168 people who died-could have invoked the amendment. Crucial evidence, provided by a witness named Michael Fortier, which helped convict McVeigh and co-defendant Terry Nichols, might have been unavailable if victims who opposed the prosecution's plea bargain with Fortier had been able to derail it, according to congressional testimony by Beth A. Wilkinson, a member of the prosecution team. Emmett E. Welch, whose daughter Julie was among those killed by McVeigh's bomb, testified at another hearing that "I was so angry after she was killed that I wanted McVeigh and Nichols killed without a trial.... I think victims are too emotionally involved in the case and will not make the best decisions about how to handle the case."
Of course, victims' interests would hardly be served by convicting the innocent or by making it harder to bring the guilty to justice. And some victims could be hurt more directly-for example, battered wives who complain to authorities only to be accused of assault by their victimizers, who can then invoke their own "victims' rights."
In short, the proposed constitutional amendment would do little or nothing more for crime victims than would ordinary state or federal legislation, and might in some cases be bad for them. That's why even some victims' groups, including the National Network to End Domestic Violence, are against it.
Most of us agree, of course, that prosecutors and judges should be nice to crime victims (as they usually are). Most of us also agree that parents should be nice to their children. But would we adopt a constitutional amendment declaring, "Parents shall be nice to their children"? Or "Parents shall give their children reasonable notice and an opportunity to be heard before deciding whether and how to punish older children who have pushed them around"? Would we leave it to the courts to define the meaning of terms like reasonable and nice? A ban on spanking, perhaps? A minimum of one candy bar per day? Would we let the courts override all state and federal laws that conflict with their interpretations?
We don't need constitutional amendments to embody our broad agreement on such general principles. And we should leave it to the states (and Congress) to detail rules for applying such principles to the messy realities of life, as the states do in laws dealing with child abuse and neglect. Legislatures periodically revise and update such laws-as they revise and update victims' rights laws-to correct unwise judicial interpretations, fix unanticipated problems, resolve troublesome ambiguities, and incorporate evolving social values. It would be far, far harder to revise or update a constitutional amendment.
James Madison wrote that the Constitution's cumbersome amendment process was designed for "great and extraordinary occasions." This doesn't come close.
Stuart Taylor Jr. National Journal