The Wall Street Journal
July 20, 1999
Page A22

Make Amends to Crime Victims

By Paul G. Cassell

Last week Vice President Al Gore declared that he favors amending the Constitution, and hardly anyone noticed. But the Victims Rights Amendment, which already enjoys the support of President Clinton, the National Governors Association and legislators from Joseph Biden to Strom Thurmond, stands an excellent chance of passage in Congress. If ratified by the states, it would be one of the most far-ranging and effective reforms to our criminal-justice system.

The amendment is rooted in the simple idea that victims of crime, no less than perpetrators, have rights in the criminal process. It would give victims of violent crime the right to be notified of court hearings, to attend those hearings and to speak on such issues as bail, plea bargaining and sentencing. The amendment would require judges to consider the victim's safety before granting bail. Victims would also be entitled to a speedy trial, notification of an offender's release or escape, and restitution from a convicted offender.

These rights would restore victims to their original place in the criminal-justice system. When the Constitution was drafted, victims could actively pursue criminal cases and act as their own private prosecutors. That changed over time, so that until the victims-rights movement began winning victories a decade ago, they could do little more than serve as witnesses. Since 1988, however, 32 states have enshrined victims rights in their state constitutions.

Still, old ways die hard in the nation's courts, and victims-rights provisions have too often failed in the face of bureaucratic habit, or the mere mention of a defendant's rights. A study by the National Institute of Justice found that "large numbers of victims are being denied their legal rights." Even in those states that offer "strong protection" for victims rights, less than 60% of victims were notified when defendants were sentenced and less than 40% were notified of a defendant's pretrial release. A follow-up analysis of the same data found that racial minorities are the least likely to be afforded their rights as victims.

For its part, the Justice Department concluded that the current "haphazard patchwork" of rules is "not sufficiently consistent, comprehensive or authoritative to safeguard victims rights." It is precisely for this reason that a constitutional amendment is needed.

Because of the amendment's widespread support, critics have focused their attacks not on its underlying principles but rather on the mechanics of carrying it out. Some opponents have argued that victim's issues do not belong in the Constitution because they do not concern the country's basic political structure. Yet not only does the amendment reflect the overarching theme of the Bill of Rights--protecting citizens against governmental misconduct--it also gives citizens a larger role in governmental processes.

Other opponents argue that victims rights should be left to the states. This is the position of the American Civil Liberties Union, a group that cheers whenever a federal court overrules the states in order to expand the rights of criminals. But never mind. The amendment does not require reopening the intense debate surrounding these decisions, but rather a simple agreement that if federal constitutional rights extend to criminal defendants, they should also extend to their victims.

Indeed, it is because of the nationalization of criminal procedure that victims now find themselves needing constitutional protection. In an earlier era, judges might have been able informally to accommodate victims' interests. But today, fearful of challenged on appeal, judges give automatic precedence to all asserted claims of defendants instead of searching for reasonable alternatives to accommodate the interests of all. Expect this to change with the passage of the Victims Rights Amendment.

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Mr. Cassell is a professor of law at the University of Utah College of Law and an executive board member of the National Victims' Constitutional Amendment Network.