Dear Senator:
The United States Senate is expected to vote soon on a constitutional amendment that would fundamentally alter the nation's founding charter. A new measure - the "Victims' Rights Amendment" to the Constitution - is expected on the Senate floor by the end of April.
The amendment, S.J. Res. 3, gives victims of violent crimes in both state and federal court, the right to participate throughout the criminal case. Although this seems to be a laudable goal, S.J. Res.3 is unnecessary and threatens to jeopardize the right to a fair trial and the presumption of innocence.
The Constitution should only be amended when there are no other alternatives available.
In the past 209 years, the Federal Constitution has been amended only 17 times. Amending the Constitution is a serious matter and should be reserved for those issues where there are no other alternatives available. S. J. Res. 3 does not meet this standard because there are other alternatives available to protect these rights. Thirty-three states have passed constitutional amendments and every state has either a state constitutional amendment or statute that protects victim's rights. Greater effort should be made to enforce already existing laws instead of amending the federal constitution.
The Victims' Rights Amendment erodes the presumption of innocence.
The framers were aware of the enormous power of the government to deprive a person of life, liberty and property. The constitutional protections afforded the accused in criminal proceedings are among the most precious and essential liberties provided in the Constitution. The VRA will undermine these basic safeguards. For example, the proposed Amendment gives rights to the accuser at the time a criminal case is filed when the accused is still presumed to be innocent. In some cases, the accuser is not the victim such as in cases of domestic violence. Battered women are often charged with crimes when they use force to defend themselves against their batterer. Under the VRA, the battering spouse is considered the "victim" and will have the constitutional right to have input into each stage of the proceeding from bail through parole. Why should a man who has spent years abusing his partner be given special constitutional rights? Many victims groups that assist battered women oppose S.J. Res. 3 for this very reason.
The Victims' Rights Amendment erodes the right to a fair trial.
S. J. Res. 3 would give crime victims a constitutional right to attend the entire criminal trial even if that person is going to be a witness in the case. In many instances, the testimony of a prosecutorial witness will be compromised if the person has heard the testimony of other witnesses. Yet, S.J. Res.3 gives the victim a constitutional right to be present even over defense or prosecution objections.
S. J. Res. 3 would also give the right "to consideration of the victim that any trial be free from unreasonable delay." Any victim or victim representative of a violent crime has standing under the Amendment to intervene and assert a constitutional right for a faster disposition of the matter. This could be used to deny defendants needed time to gather and present evidence essential to prepare their defense, resulting in innocent people being convicted. It could also be used to force prosecutors to trial before they are ready, leading to guilty people going free. Most importantly, protecting the rights of a person accused of a crime would no longer be a preeminent focus of a criminal trial.
The Amendment is likely to be counter-productive because it could hamper effective prosecutions and cripple law enforcement by placing enormous new burdens on state and federal law enforcement agencies.
Prosecutorial efforts could be hampered by the right of crime victims to "be heard if present or to submit a written statement . . . to determine . . . an acceptance of a negotiated plea or sentence." It is unclear how much weight judges will be required to give to a crime victim's objection to a plea bargain. Over 90 percent of all criminal cases do not go to trial but are resolved through negotiation. Even a small increase in the number of cases going to trial would burden prosecutors' offices. There are many reasons why prosecutors enter into plea agreements such as allocating scarce prosecutorial resources, concerns about weaknesses in the evidence, or strategic choices to gain the cooperation of one defendant to enhance the likelihood of convicting others. Prosecutorial discretion would be seriously compromised if crime victims could effectively obstruct plea agreements or require prosecutors to disclose weaknesses in their case in order to persuade a court to accept a plea. Ironically, this could backfire and result in the prosecution being unable to get a conviction against a guilty person - this would not serve society, or victims', interests.
The Amendment would impose inflexible mandates on states that they might not be able to meet.
Under S. J. Res. 3, law enforcement would be constitutionally required to make reasonable efforts to find and notify crime victims or their representatives every time a case went to trial, every time a criminal case was resolved, and every time a prisoner was released from custody. To comply with S. J. Res. 3, some jurisdictions will need to send out millions of notification forms. Another problem is that it is unclear what remedy would be available to victims if their rights were violated. Section 2 prevents victims from seeking relief after a conviction has been entered, but does not bar prospective relief. In order to remedy a violation of their rights, victims may seek injunctions to delay criminal cases or sue for violations of their rights.
Section two may also authorize appointment of counsel for victims. The term "victim's representative" might could be interpreted as providing a constitutional right to counsel for victims in order to adequately protect their newly created rights. The cost of providing counsel to victims as well as defendants in criminal cases might be prohibitively expensive. In many states, criminal defendants do not receive adequate counsel. Adding the financial burden of providing counsel to victims will likely further limit defendants' access to counsel. Principles of federalism have allowed states to decide the nature of the protection of victims in state courts. S.J. Res. 3 would impose federal rules of criminal procedure on states denying them the ability to decide which rights should be protected and how to allocate the state's resources.
Crime victims deserve protection, but a victims' rights constitutional amendment is not the way to do it. S.J. Res. 3 unnecessarily amends the federal constitution, places inflexible mandates on states, may hinder prosecution of criminal cases and threatens the rights of the accused. We urge you to vote against this amendment.
Please do not hesitate to contact us if you have any questions.
Sincerely,
Rachel King,
Legislative Counsel
Laura Murphy, Director
Washington Office