Crime Victim Amendment Bad Idea

by G. E. Morton

A proposal to amend the U. S. Constitution to protect the rights of crime victims has been introduced in the Senate.

The measure (SJ-6), sponsored by Sens. Jon Kyl (R-AZ) and Diane Feinstein (D-CA), would guarantee victims of violent crime the rights to:

notice of all public proceedings relating to the crime;

be heard, if present, and to submit a written statement at a public pretrial or trial proceeding to determine a release from custody, an acceptance of a negotiated plea, or a sentence, or at a parole proceeding;

notice of a release pursuant to a parole proceeding or an escape;

a final disposition of the proceedings relating to the crime free from unreasonable delay;

an order of restitution from the convicted offender;

consideration for the safety of the victim in determining any release from custody.

The rights ''established'' (sic) by the proposed amendment would apply in both federal and state proceedings. However, while the victim would ''have standing to assert'' his or her rights under the article, those ''rights'' would provide no ground to challenge a charging decision or conviction, obtain a stay of trial, or demand a new trial (interestingly, the language of the amendment does not rule out a challenge to a sentence--an oversight?) Nor would the amendment afford any ground for a victim to claim damages against any government agency or public official, or provide a basis for any form of relief to a convicted defendant.

Furthermore, state legislatures could create exceptions for ''compelling reasons of public safety.''

The measure has been promoted primarily by crime victim advocacy groups such MADD. While the measure enjoys broad bipartisan support, and has been endorsed by noted Harvard law professor Lawrence Tribe, it has drawn some criticism from left-wing groups who believe it will make life tougher for criminal defendants (who, after all, are victims too). Neither is the left excited about the guarantee of restitution--why should crime victims enjoy a guaranteed source of revenue to mend their injuries, when society's numerous other ''victims'' must compete dog-eat-dog in the political arena for ever-diminishing funds?

But Libertarians and constitutional scholars may well have reservations about this proposal also, however apple-pie it may seem. For one thing, no other constitutional provision presumes to ''establish'' rights, as distinguished from respecting or recognizing them. Rights language elsewhere in the constitution draws upon the natural rights tradition, while that in the victim rights amendment is fashionably positivistic--a departure proponents of limited government should not welcome. Rights can only serve to limit government if they are assumed to exist prior to government; they cannot themselves be products of the political process.

Further, the amendment, toothless as it is, is obviously intended to purchase political support among some increasingly potent interest groups, rather than deliver real justice to crime victims. What sort of ''right'' is it that cannot compel government to change its ways, or whose violation affords no legal redress? What other right is subject to limitation by state legislatures for ''compelling reasons of public safety''? Enshrining a political payoff with no legal substance in the Constitution can only diminish the authority of the charter's other protections.

Finally, this sham amendment would rob crime victims of the possibility of real protection: an amendment which would unambiguously acknowledge that individual people--not the State--are the true victims of crime; which recognizes that a fundamental purpose of any system of justice worthy of the name is to make victims whole, and provides solid recourse if it fails.