Victims' Rights Amendment in the 106th Congress: Overview of Suggestions to Amend the Constitution
Released: 2001-01-12T00:00:00

97-736 -- Victims' Rights Amendment in the 106th Congress: Overview of Suggestions to Amend the Constitution

Updated January 12, 2001

Pro and Con

Arguments put forward in support of an amendment include assertions that:

� The criminal justice system is badly tilted in favor of criminal defendants and against victims' interests and a more appropriate balance should be restored;

� The shabby treatment afforded victims has chilled their participation in the criminal justice system to the detriment of all;

� Society has an obligation to compensate victims;

� Existing statutory and state constitutional provisions are wildly disparate in their coverage, resulting in uneven treatment and harmful confusion throughout thecriminal justice system; and

� Existing state and federal law is inadequate and likely to remain inadequate

Critics argue to the contrary that:

� The criminal justice system is not out of balance. The purpose of a criminal trial is to determine the guilt ofan accused by allowing an impartial jury to weighthe government's evidence that a crime has been committed and that the accused committed it, against any evidenceoffered by the defendant; the interests ofvictims do not fit in the equation; their interests are protected by the right to bring a civil suit against the accused,by court-order restitution if the accused isconvicted, and by victim compensation provisions.

� If efficacious, a victims rights amendment would generate considerable uncertainty in the law and flood the federal courts with litigation, could be very costly,and would either jeopardize the rights of the accused (probably in a discriminatory manner) or undermine thegovernment's ability to prosecute.

� If the mischief possible through a victims rights amendment is avoided, the proposal becomes purely hortatory; the Constitution is no place for commemorativedecorations.

� It is inconsistent with the basic notions of federalism. Each of the states, through its legislatures and electorate, has decided how victims rights should beaccommodated within its criminal justice system. These decisions would be made subservient to a uniform standardthat in all likelihood no jurisdiction wouldhave chosen.

Particulars

S.J.Res. 3 and H.J.Res. 64 would have followed the general format favored in the state constitutions. They would have guaranteedvictims a right to notice, to attend, and/or to be heard at various stages of the criminal justice process.

Who Is a Victim

The impact of any victims rights amendment depends upon who is considered a victim for purposes of the amendment. S.J.Res. 3 would havecovered "victim[s] of a crime of violence, as these terms may be defined by law." H.J.Res. 64 would haveapplied to "[e]ach individual who is avictim of a crime for which the defendant can be imprisoned for a period of longer than one year or any other crimethat involves violence." The obviousdifference between the two was that the House Resolution would have covered nonviolent felonies, while the Senateproposal would not.

When Must a Victim Be Notified, Be Allowed to Attend, or Be Heard

Bail

At least in theory, a victim's rights might attach upon commission of the offense. Under the proposals in the 106th and most of the state provisions, the rightsattach upon commencement of "proceedings" involving the crime of which the individual is the victim. The mostsignificant of these early proceedings for thevictim would likely be the bail hearing for the accused. Only a few states grant the victim the right to be heard atthe defendant's bail hearing; a few more permitconsultation with the prosecutor prior to the bail hearing. Most allow victims to attend. And virtually all provideeither that victims should be notified of bailhearings or that victims should be notified of the defendant's release on bail.

Under existing federal law, victims of alleged acts of interstate domestic violence or interstate violations of a protective order have a right to be heard at federalbail proceedings concerning any danger posed by the defendant. In other federal cases, victims' prerogatives seemto be limited to the right to confer with theprosecutor and notification of and attendance at all public court proceedings. The proposals in the106th would have given victims the right "to be heard, ifpresent, and to submit a written statement at all such proceedings to determine a conditional release from custody.. . ." and to consideration for their safety "indetermination any conditional release from custody."

Plea Bargains

Negotiated guilty pleas account for over 90% of the criminal convictions obtained. For the victim, a plea bargain may come as an unpleasant surprise, one thatmay jeopardize the victim's prospects for restitution, one that may result in a sentence the victim finds insufficient,and/or one that changes the legal playing fieldso that the victim has become the principal target of prosecution. Some states' victims rights provisions are limitedto notification of the court's acceptance of aplea bargain. More often, however, the states permit the victim to address the court prior to the acceptance of anegotiated guilty plea or to confer with theprosecutor concerning a plea bargain. S.J.Res. 3 and H.J.Res. 64 would have required that victims beallowed to address the courtbefore a plea bargain could be accepted in any state or federal criminal or juvenile proceeding.

Speedy Trial

The United States Constitution guarantees those accused of a federal crime a speedy trial; the due process clause of the Fourteenth Amendment makes the rightbinding upon the states, whose constitutions often have a companion provision. The constitutional right isreenforced by statute and rule in the form of speedytrial laws in both the state and federal realms. Until recently, victims had no comparable rights, although theiradvocates contended they had a very real interest inprompt disposition. Most of the states have enacted statutory or constitutional provisions establishing a victim's rightto "prompt" or "timely" disposition of thecase in one form or another. Many have also made efforts to minimize the adverse impact of the delays that dooccur by either providing for employerintercession services and/or by prohibiting employers from penalizing victim/witnesses for attending courtproceedings. And most call for the prompt return of avictim's property, taken for evidentiary purposes, as soon as it is no longer needed.

S.J.Res. 3 and H.J.Res. 64 would have entitled victims to consideration of their interests "that any trial be free from unreasonable delay." Courts might well have used the same test for this standard that they have used when testing for unacceptable delayunder the speedy trial and due process clauses:"length of delay, reasons for the delay, defendant's assertion of his right, and prejudice to the defendant."

Trial

The Sixth Amendment promises the accused a public trial by an impartial jury. It promises victims little. Their status is, at best, no better than that of any othermember of the general public for Sixth Amendment purposes and, in fact, the Constitution screens the accused'sright to an impartial jury trial from the overexuberance of members of the public. Moreover, victims who are also witnesses are even more likely to be barredfrom the courtroom during trial than membersof the general public. About a third of the states now permit victims to attend all court proceedings regardless ofwhether the victim is scheduled to testify;another group allows witnesses who are victims to attend subject to a showing as to why they should be excluded;a few leave the matter in the discretion of thetrial court; and some have maintained the traditional rule -- witnesses are sequestered whether they are victims ornot.

S.J.Res. 3 and H.Res. 64 would have invested victims with the right "to notice of, and not to be excluded from, all public proceedingsrelating to the crime," state and federal, juvenile and adult. They made no explicit provision for instances wherethe victim is also a witness. Nor did they indicatehow unavoidable conflicts between the rights they conveyed and the constitutional rights of the accused (at leastas they exist until ratification) were to beresolved.

Sentencing

The most prevalent of victims' rights among the states is the right to have victim impact information presented to sentencing authorities. There is, however,tremendous diversity of method among the states. Many call for inclusion in a presentencing report prepared forthe court in one way or another, oftensupplemented by a right to make some form of subsequent presentation as federal law permits. Some are specificas to the information that may be included;some permit the victim to address the court directly; others do not.

S.J.Res. 3 and H.J.Res. 6 would have afforded victims the right "to be heard . . . and to submit a written statement at all suchproceedings to determine . . . a sentence." They proposal did not address the question of whether relevancy,repetition, or any other limitation might have beenimposed upon exercise of the right.

Enforcement

Experience among the states suggests that enforcement may be the stumbling block for any proposed amendment, since there seem to be few palatablealternatives. It is possible to draft the amendment to the United States Constitution so that victims' rightsenforcement is paramount. Legal proceedingsconducted without honoring victims rights would be rendered null; sentencing hearings rescheduled and conductedanew; plea bargains rejected; trials begunagain; unfaithful public servants exposed to civil and criminal liability; inattentive governmental entities madesubject to claims and court orders. A fewproponents suggest that enforcement should be limited to the equitable powers of the courts. This would appear tohave been the intent with respect to S.J.Res. 3 and H.J.Res. 64 which would have denied victims a cause of action or grounds to interrupta criminal trial and otherwiseleaves crafting of enforcement mechanisms to Congress and the state legislatures.

Legislative Powers

S.J.Res. 3 and H.J.Res. 64 would have conferred legislative authority in two ways. First, they would have empowered Congress todefine the class of victims entitled to claim rights under the amendment. Second, they would have vested Congresswith the authority enforce their provisions"through legislation" but subject to the caveat that in doing so Congress craft exceptions to the rights created by theamendment "only when necessary to achieve acompelling interest." Earlier proposals explicitly recognized a greater state legislative role.

Conflicts With Other Constitutional Provisions or With State Law

The question of the states' legislative powers to implement the victims' rights amendment suggests another question. How much, if any, of existing victims rightslaw would survive an amendment?

Under the present state of the law, statutory and state constitutional provisions are confined by the United States Constitution, U.S.Const. Art. VI, cl.2. Whentheir advocates have said nothing in them imperils defendant's rights under the United States Constitution, they areright; nothing could. But an amendment to theUnited States Constitution stands on different footing. It amends the Constitution. Its very purpose is to makeconstitutional that which would otherwise not havebeen constitutionally permissible. It may uniformly subordinate defendants' rights to victims' rights. It may requireany conflicting law or constitution precipe,state or federal, to yield. Even in the absence of a conflict, it may preempt the field, sweeping away all laws,ordinances, precedents, and decisions -- compatibleand incompatible alike -- on any matter touching upon the same subject. It may have none or some of theseconsequences depending upon its language and theintent behind its language.

Few advocates have explicitly called for a "king-of-the-hill" victims rights amendment, but the thought seems imbedded in the complaint that existing law lacksuniformity. How else can universal symmetry be accomplished but by implementation of a single standard that fillsin where pre-existing law comes up short andshaves off where its generosity exceeds the standard? Proponents of S.J.Res. 3 and H.J.Res. 64 spokeof both the need to establish aminimum victims' rights standard and the need for uniformity.

The principles of construction called into play in the case of a conflict between a victims' rights amendment and rights established elsewhere in the Constitutionare similar those used to resolve federal-state conflicts.

Intent of the drafters is paramount. The courts will make every effort to reconcile apparent conflicts between constitutional provisions, but in the face of anunavoidable conflict between a right granted by an adopted victims rights amendment and some other portion ofthe Constitution, the most recently adoptedprovision will prevail.

The proposals in the 106th Congress were designed to eliminate the unfair treatment that results because the criminal justice "system . . . permits the defendant'sconstitutional rights always to trump the protections given to victims," yet to do so in a manner that would "not denyor infringe any constitutional right of anyperson accused or convicted of a crime." In instances of unavoidable conflict between victim and defendant rights,this seemed to mean the prosecution mustyield. The text of the two hardly defeated this interpretation with the assurance that the "only the victim or thevictim's lawful representative shall have standingto assert the rights" created by the amendment, since the rights of the accused come not from the victims' rightsamendment but from the Sixth Amendment orsome other source within the Constitution.