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Commentary | PERSPECTIVE ON THE LAW

Embed the Rights of Victims in the Constitution

A proposed amendment protects victims, without running roughshod over the rights that are due the accused.

July 06, 1998|LAURENCE H. TRIBE and PAUL G. CASSELL | Laurence H. Tribe is a professor of constitutional law at Harvard Law School. Paul G. Cassell is a professor of law at the University of Utah College of Law

The Supreme Court has instructed that "in the administration of criminal justice, courts may not ignore the concerns of victims." Sadly, those noble sentiments have yet to be translated into day-to-day realities in the administration of our nation's criminal justice system.

Fortunately, a remedy lies at hand. The Senate Judiciary Committee is expected to vote shortly on the Victims' Rights Amendment. The amendment enjoys unusually widespread, bipartisan support. We hope this Congress will approve it and send it to the states for consideration and ratification.

We take it to be common ground that the Constitution should never be amended merely to achieve short-term, partisan or purely policy objectives. Apart from a needed change in governmental structure, an amendment is appropriate only when the goal involves a basic human right that by consensus deserves permanent respect, is not and cannot adequately be protected through state or federal legislation, would not distort basic principles of the separation of powers among the federal branches or the division of powers between the national and state governments or the balance of powers between government and private citizens with respect to their basic rights.

The proposed Victims Rights Amendment meets these demanding criteria. It would protect basic rights of crime victims, including their rights to be notified of and present at all proceedings in their case and to be heard at appropriate stages in the process. These are rights not to be victimized again through the process by which government officials prosecute, punish and release accused or convicted offenders.

These are the very kinds of rights with which our Constitution is typically and properly concerned--rights of individuals to participate in all those government processes that strongly affect their lives. "Participation in all forms of government is the essence of democracy," President Clinton concluded in endorsing the amendment.

Congress and the states already have passed a variety of measures to protect the rights of victims. Yet the reports from the field are that they have all too often been ineffective. Rules to assist victims frequently fail to provide meaningful protection whenever they come into conflict with bureaucratic habit, traditional indifference, sheer inertia or the mere mention of an accused's rights--even when those rights are not genuinely threatened.

Moreover, because we lack the resources to provide victims the guiding hand of appointed legal counsel in the criminal process, victims are largely left to stumble on their own through a "haphazard patchwork" of rules "not sufficiently consistent, comprehensive or authoritative to safeguard victims' rights," the Justice Department concluded after careful study. Empirical confirmation of this failure comes from a National Institute of Justice study reporting that today "large numbers of victims are being denied their legal rights." The same study found that victims' rights are more frequently denied to racial minorities and presumably other disfavored groups who are unable to assert their interests effectively. Only an unequivocal constitutional mandate will translate paper promises into real guarantees for all victims.

A Victims' Rights Amendment must, of course, be drafted so that the rights of victims will not furnish excuses for running roughshod over the rights of the accused. The current Senate resolution is such a carefully crafted measure, adding victims' rights that can coexist side by side with defendants'. For example, paralleling a defendant's constitutionally protected right to a "speedy" trial, the amendment would confer on victims the right to consideration of their interest "in a trial free from unreasonable delay." By definition, these rights could not collide, since they are both designed to bring matters to a close within a reasonable time. And if any conflict were to emerge, courts would retain ultimate responsibility for harmonizing the rights at stake.

The framers of the Constitution undoubtedly assumed the rights of victims would receive decent protection. Because experience has not vindicated this assumption, it is now necessary to add a corrective amendment. Doing so would neither extend the Constitution to an issue of mere policy, nor provide special benefits to a particular interest group, nor use the heavy artillery of constitutional amendment where a simpler solution is available. Nor would it put the Constitution to a merely symbolic use or enlist it for some narrow partisan purpose. Rather, the proposed amendment would help bridge a distinct and significant gap in our legal system's existing arrangements for the protection of basic human rights against an important category of government abuse.

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