ACLU Fact Sheet on the Proposed Victims' Rights Amendment

Document Date: April 3, 2003

Proposed Victims’ Rights Amendment

The Victims’ Right Amendment, or VRA, is a proposed constitutional amendment, currently being considered in Congress, that would enumerate various “”rights”” for crime victims. To be enacted, the proposed amendment would need two-thirds vote in both the House and the Senate as well as to be ratified by two-thirds of all of the states.

The proposed “”rights”” include notification of, guaranteed admission to and the right to speak during the course of legal proceedings, including: pre-trial release, plea bargains, sentencing and parole. Additionally, VRA requires courts to consider victims’ interests to ensure trials occurs without “”unreasonable delays”” and to consider the victims’ safety when defendants are considered for conditional releases.

On the surface, VRA might sound benign, but in reality it is quite controversial. The proposed amendment raises a number of concerns that turn fundamental ideals about American justice-namely, the notion of innocent until proven guilty and due process-on their heads. Groups and individuals from across the political spectrum, including the American Civil Liberties Union, leading conservative columnists like George Will, and a host of victims’ groups oppose the amendment for various reasons.

Innocent until proven guilty is a hallmark of the American justice system. This principle, perhaps more than any other, ensures that people are given fair trials and that there is no presumption of guilt. That is why the burden of proof-to prove guilt beyond a reasonable doubt-lies with the state and not with the accused. Identifying victims and allowing their interests to be heard before a jury returns a verdict contaminates the deliberation process and runs counter to the idea that all Americans are “”innocent until proven guilty.””

The amendment would dramatically curtail due process. Basic due process protections do not exist to protect guilty criminals from punishment; they exist to protect the innocent from arrest and imprisonment. Key to due process is the ability to receive an impartial trial. One can easily imagine the miscarriage of justice in a trial where the defendant is innocent but the victim begs the jury to return a guilty verdict. The reason spate of innocent people wrongfully convicted being released from prison is proof positive that mistakes are made and the wrong people are sent to prison for crimes they did not commit.

It would actually obstruct justice. Surprisingly, during the debate over VRA in the 106th Congress, a federal prosecutor from the Oklahoma City bombing case, Beth Wilkinson, testified against the amendment. Echoing the concerns of a number of prosecutors, Wilkinson argued that had victims of the bombing been able to block the plea agreement of Michael Fortier, who was granted leniency in return for damning testimony against other defendants Timothy McVeigh and Terry Nichols might never have been convicted.

James Madison once wrote that the Constitution’s daunting amendment process was designed such that our founding documents and the basic rights contained therein could only be changed on “”great and extraordinary occasions.”” As the disaster of Prohibition showed, when the Constitution is amended to restrict rights – in this case, due process and the right to a fair trial — unintended consequences inevitably follow. VRA would be no exception.

But beyond those very fundamental objections, the amendment simply isn’t necessary. Thirty-two states already have victim rights amendments as part of the states constitution and every state has victim rights legislation passed through the state legislature.

This isn’t the first time the VRA has been proposed. It has been introduced in various forms in previous sessions of Congress. Each time, the amendment failed to garner enough votes in the House or the Senate to pass. In the past, lawmakers have realized the inherent problems in the amendment and wisely decided to leave the Constitution intact.