Time for a Crime Victims’ Rights Amendment

By Paul G. Cassell^*

Recently Al Gore endorsed the pending Victims’ Rights Amendment, reminding everyone of its overwhelming, bipartisan support.  The amendment’s naysayers, however, were quick to capitalize on Gore’s backing as proving the Amendment is a mere political gimmick.  Steve Chapman, for example, labeled the amendment as “much worse” than “a cheap exercise in political grandstanding” (The False Promise of Victims Rights, July 25, 1999).  But if anyone is posturing, it’s those who use the guilt-by-association argument than something endorsed by -- gasp -- a politician is, ipso facto, bad.  In fact, the case for the amendment’s rests on firm legal and empirical foundations, explaining why it commands support not only from Al Gore but a broad congressional coalition spanning Joseph Biden to Strom Thurmond.

The amendment rests on the simple premise that victims of crime, no less than accused criminals, merit respect throughout the criminal process.  It would confer on victims of violent crimes the right to be notified of court hearings, to attend those hearings and to speak on issues such as bail, plea bargaining, and sentencing.  The amendment would also require judges to consider the victim’s interests before granting bail, delaying trial, or denying restitution. 

A victims’ amendment is no election cycle contrivance, but a long gestating proposal stemming from the President’s Task Force on Victims of Crime in 1982.  After hearings held around the country, the Task Force concluded that a constitutional amendment was needed because “the fundamental rights of innocent citizens cannot adequately be preserved by any less decisive action.”  Following on the heels of this recommendation, 31 states amended their state constitutions to recognize victims’ rights.  The citizens of Indiana, for instance, passed a victims’ amendment overwhelmingly in 1996.

The amendment’s critics, with Chapman serving as a convenient illustration, tell us that crime victims are already “assured” their rights by such state enactments.  But these paper promises have yet to been translated into day-to-realities.  Attorney General Reno concluded, after a full review of the issue, that the state efforts “simply are not sufficiently consistent, comprehensive, or authoritative to safeguard victims’ rights.”  A recent report from the National Institute of Justice likewise found that “enactment of State laws and State constitutional amendments alone appears to be insufficient to guarantee the full provision of victims’ rights in practice.”  Even in those states that offered “strong protection” for victims, less than 60% were notified when defendants were sentence and less than 40% were notified of a defendant’s pretrial release.  The same data showed, not surprisingly, that those most likely to be denied their rights under the current haphazard patchwork were racial minorities. 

The critics’ other lead argument -- at odds with their claim that victims’ rights are “assured” today -- is that actually providing victims’ rights is impractical.  Chapman, for example, parades as the worst case example of the amendment’s horrific effects the situation of  a number of customers in harm’s way during an armed bank robbery, who will have to be notified of ensuing court hearings.  Good heavens, how terrible — keeping those who were terrorized during a robbery informed, if they so desire, of what’s happening during the case.  Of course, this can all be done quickly and inexpensively via computerized mailing lists or automated telephone calls, as experience in various states illustrates.  Chapman, however, has no time for fair evaluation of implementation issues.  He tells his readers “no one seems to have bothered to estimate” the Amendment’s cost.  Actually, the Congressional Budget Office has estimated the tab for the federal system — concluding “CBO does not expect any resulting costs to be significant.”   A system that treated victims fairly would be worth a considerable sum, but is, in fact, an inexpensive bargain.

A final objection is that victims’ rights do not “belong” in the Constitution.  Yet, as Harvard Law Professor Laurence Tribe has observed, the Amendment addresses the very kinds of rights with which our Constitution is typically and properly concerned — the rights of individuals to participate in government processes that strongly affect their lives.  The Amendment builds on the overarching theme of the Bill of Rights — protecting citizens against government misconduct — while enhancing the goals of the later amendments — involving citizens in government processes.   No doubt the constitutional amendments enfranchising the newly freed slaves, women, and eighteen-year-olds were politically popular, drawing the endorsements of the Al Gore’s of their day.  But these amendments were all changes for the better, ending the exclusion of those who deserved inclusion.  The Victim’s Rights Amendment will do the same for those who have suffered horribly at the hands of violent criminals.