What’s Wrong With “Victims’ Rights”?

The case against an unassailable concept.

Politicians have been running short of ways to address the crime issue. Just since 1993, Congress has made dozens of offenses newly eligible for the death penalty, enacted a three-strikes-and-you’re-out law, banned so-called assault weapons, imposed a waiting period on handgun purchases, curbed federal criminal appeals, and provided more money for police and prisons. That pretty much exhausts the possibilities for prevention and punishment. So attention is turning to a new subject: victims. Both Bob Dole and Bill Clinton have endorsed the idea of a constitutional amendment to create a Victims’ Bill of Rights. Clinton had opposed every previous constitutional amendment offered by congressional Republicans. Twenty states have added victims’ rights provisions to their constitutions, and 45 now provide some sort of restitution or compensation to crime victims.

The broad appeal of victims’ rights is easy to understand. If we can’t prevent violent crime, it seems only fair that we should do what we can to console and heal those harmed by it. As University of Chicago law Professor Stephen Schulhofer has written, the concept unites two disparate cultural impulses. “Part backlash against what it considered the pro-defendant romanticism of the 1960s,” he wrote, “the victims’ rights movement was also a spiritual heir to the ‘60s ethos. With its suspicion of bureaucratic government, the victims’ rights movement spoke for the ‘forgotten’ men and women of the criminal justice system.”

The specific proposal sponsored by House Judiciary Committee chairman Henry Hyde, R-Ill., would give victims a constitutional right to be notified of every stage in the criminal justice process and to be present at, and speak in, trials, sentencing proceedings, and parole hearings. They would also be entitled to object to (though apparently not to veto) any plea bargain. Victims would be guaranteed notice of any escape by their alleged attackers. They would have the right to expect a speedy trial and the right to restitution from the criminal.

It is frequently asserted, in defense of a Victims’ Rights amendment, that victims’ rights guaranteed by statute or by state constitutions are invariably trumped by defendants’ rights, since the latter have federal constitutional status. But the examples are scarce. Asked if he has encountered instances when defendants’ rights overrode the victims’ rights guaranteed by the Illinois Constitution, Cook County State’s Attorney Jack O’Malley is stumped. “I can’t think of a case where that has happened.” he says.

Amendment supporters cite the decision of the judge in the Timothy McVeigh-Terry Nichols trial to move the proceeding to Denver, despite the inconvenience to the families of victims who lived in Oklahoma City. But the judge’s purpose was to ensure a fair trail for the defendants. Do the amendment’s supporters really think a biased jury is good for victims? Convicting the wrong person, after all, is an injustice not just to the defendant but to the crime victim as well. The same objection holds for another provision, which says that victims have the right to be present at every proceeding, including the trial. The only time victims are barred from trials today is before they testify–a safeguard meant to prevent them from tailoring their accounts, consciously or unconsciously, to fit those of other witnesses. The point of excluding them temporarily is not to give a sporting chance to the bad guys, but to enhance the prospect of learning the truth, which fully conforms with the interests of the victim. If judges are prevented from ever keeping victims out of the courtroom, juries are more likely to lock up the innocent, which benefits no one except the guilty. Accelerating trials likewise runs the risk of making it harder for defendants to mount a genuine defense, further impeding the effort to establish what really happened.

One problem now, says Sen. John Kyl, R-Ariz., is that existing victims’ rights are not enforced. But that malady won’t be cured by a federal constitutional amendment. It arises from the fact that no one has a powerful interest in asserting the rights of the victim–including, in most cases, the victim. Defendants’ constitutional rights are protected by cops’ and prosecutors’ interest in not having convictions overturned or evidence thrown out. No such incentive is at work if the state fails to enforce the rights of victims. Victims themselves can monitor enforcement, but under most state amendments, victims can’t collect monetary damages when their rights are violated. Hyde favors such a provision at the federal level. The best a crime victim could hope for is an injunction against further violations. How many are going to pay a lawyer to get that?

Maybe they won’t have to. Defendants who can’t afford to pay an attorney get one at state expense. So the federal courts may interpret this amendment to mean that victims should get free lawyers as well. The amendment’s text says nothing about free lawyers. But neither does the Sixth Amendment–yet the Supreme Court has ruled that the Constitution guarantees legal counsel. If the Victims’ Rights amendment grants every poor victim a right to free representation, the cost will be huge. If not, the amendment’s effect will be modest.

In an era of overloaded dockets and strained resources, constitutionalizing victims’ rights would also be one more costly obligation for prosecutors. The reason assistant district attorneys don’t spend more time notifying victims and conferring with them is not cruel indifference. It’s that, given limited resources, they take the entirely reasonable view that the best thing they can do for victims is convict and punish the assailants. Every dollar spent mailing out postcards informing victims of meaningless court dates is a dollar that can’t be used doing things that will help put criminals behind bars. (O’Malley’s victim-assistance unit employs 60 people.) Maybe Americans should be willing to spend enough to perform both tasks thoroughly, but no one has told them that they ought to do that. A victims’ rights amendment would force them to spend more to succor those injured by crime, but it would most likely induce them to spend less to fight crime. Some victims, as a result, will get better treatment from the criminal justice system when their attackers are prosecuted. But under the relentless triage of the criminal justice system, some victims will find that their attackers won’t be prosecuted at all.

If Americans favor such a reallocation of resources, of course, they can bring it about without the bother of amending the Constitution. All an amendment does is virtually revoke the right to change their minds if the change proves unsatisfactory in practice.

Restitution is an admirable goal, but it is also largely a fantasy. In Cook County, says O’Malley, the vast majority of criminal defendants are indigent, making them exceedingly weak candidates for repayment. Defendants with money–O.J. Simpson comes to mind–are already liable to face civil suits by victims, who have the advantage in such proceedings of not having to prove guilt beyond a reasonable doubt. So establishing a right to restitution probably won’t make much difference in the amount of compensation going to people harmed by criminals. Achieving that would require something like putting prison inmates to work at real jobs paying real wages, instead of make-work at pennies per hour. But that will happen over the dead body of organized labor, particularly public employee unions. Passing this amendment won’t hasten the day.

Writing victims’ rights into the Constitution would open up all sorts of opportunities for the Supreme Court to curtail or repeal the protections assured criminal suspects in the Bill of Rights–which, considering the traditional Republican disdain for such procedural rights, is doubtless part of the idea. “Reasonable measures to protect the victim from violence or intimidation by the accused” could mean an effective end to the right to bail. A speedy trial guarantee for victims could take priority over the defendant’s right to due process. The right to confront one’s accusers could be trimmed back. The exclusionary rule barring the admission of illegally seized evidence could someday be discarded as inimical to the rights of victims. This may sound fine if you think the only value of the existing constitutional safeguards is to spare thieves and thugs the inconvenience of prison. In fact, provisions like the Fourth Amendment ban on unreasonable searches and seizures and the Sixth Amendment prohibition of excessive bail protect the law-abiding as well as the lawbreaking from government abuses that were commonplace only a generation ago.

Adding victims’ rights to the Bill of Rights would compromise long-standing constitutional guarantees without necessarily providing any offsetting gain. Americans in general would lose some space from their zone of liberty, while those harmed by criminals would get little more than they get now to compensate them for their sufferings. The amendment would have few beneficiaries and many victims.