Letter to the Senate Urging Opposition to S.J. Res. 1, the "Victims' Rights Amendment"

Re:  Oppose S.J. Res. 1, "An amendment to the Constitution of the United States to protect the rights of crime victims."

Dear Senator:

On January 7th 2003, Senators Feinstein and Kyl introduced S.J. Res. 1, "An Amendment to the Constitution to Protect the Rights of Crime Victims."  This amendment would fundamentally alter the nation's founding charter and would apply to every federal, state and local criminal case, profoundly compromising the Bill of Rights protections for accused persons.  

S.J. Res. 1 would give rights to victims of violent crime such as the right to notice of any public proceeding; the right not to be excluded from public proceedings, the right to be heard at release, plea, sentencing, pardon and reprieve hearings; an interest in avoiding unreasonable delay and just and timely restitution.  The Amendment also provides victims with the right to "adjudicative decisions" regarding victim's safety, speedy trial and restitution.  Although adjudicative decisions are not defined in the bill, this could be interpreted as providing victims with the right to a hearing on these issues.  

Many of these provisions reflect laudable goals, but it is unnecessary to pass a constitutional amendment to achieve them.   Every state has either a state constitutional amendment or statute protecting victims' rights and the proponents have not made the case that those measures do not protect victims' interests.  More importantly, providing these "rights" to defendants will compromise the rights of the accused.  It would be the first time in our nation's history that the Constitution was amended in a manner that restricted individual rights.  

This amendment poses the same problems as previous versions and may create additional new problems.

The amendment does not protect the rights of accused persons.  The wording of this amendment is the same as the version introduced in the 107th, but is different from previous versions of the Amendment introduced in earlier sessions of Congress.  The effect of each version, however, is the same.  If passed, the Amendment would erode the presumption of innocence; jeopardize the right to a fair trial; hamper the ability of law enforcement to effectively prosecute cases; discriminate between victims and impose legal liability on the states.  

One of the primary concerns that opponents of the Amendment have raised is that it will erode the rights of accused persons.  Some have asked for language that would clarify that the Amendment is not intended to erode constitutional rights for accused persons and that if a conflict between the rights of the accused and the victim arise, the rights of the accused would prevail.  The amendment contains a clause that states, "These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity."  Notably absent is language clearly protecting the rights of accused persons.  If the proponents do not intend to compromise the rights of defendants, the amendment should clearly state this.

This Amendment gives victims the right to adjudicative decisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and access to just and timely claims to restitution from the offender.  This clause was included, for the first time, in S. J. Res. 35 in the 107th Congress.  It remains unclear what this phrase means, but a reasonable interpretation is that victims would have the right to a hearing on these issues.  Previous amendments have given victims the right to be present and heard at all public proceedings; this version appears to go beyond the right to be present and be heard, but also to give the right to a hearing.
  
The Constitution should only be amended when there are no other alternatives available.  In the past 211 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. 1 does not meet this standard because there are other alternatives available to protect the interests of crime victims.  Thirty-three states have passed victims' rights constitutional amendments and every state has either a state constitutional amendment or statute that protects victims' rights.  Greater effort should be made to enforce 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 undermines the presumption of innocence by conferring rights to the accuser at the time a criminal case is filed when the accused is still presumed to be innocent.  

Not every accused person is actually guilty of committing a crime.  But giving the accuser the constitutional status of victim will impact the judge and jury, making it extraordinarily difficult for fact finders to remain unbiased when the "victim" is present at every court proceeding giving his or her opinion as to what should happen.  The VRA makes the accuser a third party in the criminal case, even before a judge or jury has determined that the accuser is actually a "victim."

Many organizations that provide support to battered women are opposed to this amendment because 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 batterers who have spent years abusing their partners be given special constitutional rights?    

The Victims' Rights Amendment jeopardizes the right to a fair trial.  S. J. Res. 1 would give crime victims a constitutional right to attend the entire criminal trial-even if the victim is going to be a witness in the case.  In many instances, the testimony of a prosecution witness will be compromised if the person has heard the testimony of other witnesses.  Despite the possibility of tainting his or her testimony, S.J. Res. 1 gives the victim a constitutional right to be present-even over the objections of the defense or prosecution.

S. J. Res. 1 would also confer an "interest in avoiding unreasonable delay."  Any victim or representative of a victim of a violent crime has standing under the Amendment to intervene and assert a constitutional right for a faster disposition of the matter.  This provision will threaten defendants' rights to effective assistance of counsel if defendants are required to go to trial before their attorneys are ready.  Furthermore, the right could compromise the prosecution's case if it is not ready to proceed to trial but must do so at the victim's insistence.  Under the first scenario innocent people may be wrongfully convicted; under the second scenario guilty people may go 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.   Instead of putting their resources towards prosecuting crimes, states will be required to divert tremendous resources to make sure that victims are given notice about every hearing and be given the opportunity to be heard "at public release, plea, sentencing, reprieve, and pardon proceedings."  

It is unclear how much weight judges will be required to give to the views of a crime victim if he or she objects to an action of the prosecutor or judge.  For example, what if a victim opposes a negotiated plea agreement?  Over 90 percent of all criminal cases are resolved through negotiation rather than going to trial.  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, which would not serve society's nor victims' interests.

The Amendment would impose inflexible mandates on states that many will not be able to meet.   Under S. J. Res. 1, 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. 1, some jurisdictions will need to send out millions of notification forms.  This will impose significant new costs on the states and regardless of how efficient the state tries to be, it will fail in some situations to provide notice to the accuser.

When the state fails to fulfill its duty to provide notice, what remedies are available to the "victim"?  Section three reads, "'Nothing in this article shall be construed to provide grounds for a new trial or to authorize any claim for damages."  However, this still leaves open the possibility that the victim could re-open a case if he or she disagreed with a plea agreement.  It also leaves open the possibility of seeking injunctive relief against the judge, prosecutor or police when they fail to follow through with every requirement under the amendment.  Presumably victims would be entitled to bring suit under 42 U.S.C. § 1983.  If the victim prevails under a 1983 claim, he or she is entitled to attorneys' fees, which are not considered damages.

Section three of S.J. Res. 1 may also authorize appointment of counsel for victims.  The section reads, "Only the victim or the victim's lawful representative may assert the rights established by this article."  The term "lawful representative" is undefined, and could be interpreted as meaning an attorney.  If victims are entitled to have attorney's represent them, then in order to make this right meaningful the state will have to subsidize the cost of attorneys for those who cannot afford to hire their own.   

State and federal criminal justice systems are in crisis because they are unable or unwilling to provide adequate counsel for indigent accused persons.  The additional cost of providing counsel to victims as well as defendants in criminal cases would be prohibitively expensive.  Adding the financial burden of providing counsel to victims will likely further limit defendants' access to counsel.   If this happens, it will tax an already severely overtaxed system, make it less likely for accused persons to retain adequate counsel, and therefore increase the likelihood of wrongful conviction.

The VRA poses more problems than solutions.  Apart from the serious constitutional problems this amendment raises, there are many practical problems that the VRA will create.  Who is a victim?  The amendment does not define this and it is quite possible that in any one case there would be multiple victims with competing interests.  In a homicide case, a child of the victim and the parent of the victim may disagree on how the government should handle this case.  Whose opinion prevails?  What if the victim changes his or her mind during the course of the case?  This happens frequently in death penalty cases where the victim initially wants the government to seek the death penalty and then changes his or her mind before the case is concluded?  And what about the fact that the amendment only covers victims of "violent" crime?  This means that a person who has been the victim of a misdemeanor assault would have constitutional rights, but an elderly widow who has been swindled out of her life savings would not.  It also means that victims in different states will be treated differently because each state has its own laws defining what is and is not a crime of violence, e.g. some states consider burglary a crime of violence, while others consider it a property crime.  Persons in adjoining states might have different rights under the federal constitution creating a chaotic and unfair situation.

A constitutional amendment is not the solution.  Crime victims deserve protection, but a victims' rights constitutional amendment is not the proper way of providing it.  S.J. Res. 1 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.  

If you have any questions, please do not hesitate to contact us.  Thank you very much for your attention to this important issue.

Sincerely,

Laura Murphy
Director

Terri Schroeder  
Legislative Representative

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