Victims’ Rights

2012-09-24 13:32:03

Origins

The victims’ rights movement has both liberal and conservative roots. In the 1960s, women’s groups and feminists focused on the plight of rape victims. Predominantly progressive, they brought attention to outmoded laws and attitudes toward rape and to the insensitivity of police, prosecutors, and the court system to rape victims. The modern victims’ rights movement has its conservative origin in reaction to the Warren Court’s expansion of procedural protections for defendants grounded in the Bill of Rights. Victims took the Court’s language of rights and argued that victims’ rights were needed to counterbalance the Court’s excesses and the resulting failure to curb rising crime rates.

An important moment in shaping the conservative political focus of the modern victims’ movement occurred in 1982, when President Ronald Regan and Attorney General Ed Meese convened a President’s Task Force on Victims of Crime. The Task Force helped to bring victims prominently into the criminal justice debate as symbols for and supporters of lawand- order policies.

The victims’ rights movement cannot be understood without focusing on the stories of individual victims—stories of great tragedy—that are a powerful part of its message. Their stories often also involve insensitivity by the criminal justice system and include complaints that it is designed to protect perpetrators rather than innocent victims.

Conceptual Components

The victims’ rights movement has three major components: (1) guaranteeing victim participation in criminal proceedings; (2) securing financial benefits and services for crime victims; and (3) achieving more certain and harsher punishment for perpetrators. Of these goals, only the first two are generally consistent with protecting civil liberties.

The participatory rights element seeks to provide victims with notice of proceedings and the right to be present and to be heard at them. This element also champions opportunities for victims to consult with prosecutors regarding whether to charge and to plea bargain with defendants. The second element, which may be termed the ‘‘victim assistance’’ component, has led to restitution orders from perpetrators, which are required in virtually all jurisdictions and victim compensation programs funded from governmental resources. The third, ‘‘defendant damage,’’ element of the movement includes restricting pretrial release, relaxing restrictions on admission of evidence against the accused, and requiring tougher Sentencing practices. In these efforts, victims frequently become the allies of prosecutorial and conservative political forces that support a law-and-order agenda.

Successes of the Victims’ Movement

The movement’s greatest success is the increased level of respect and dignity given to victims in the criminal justice system. Prosecutors’ offices now spend far greater time and energy than they had earlier in giving notice to victims and consulting with them about decisions in their cases. Victim counselors and advocates are now part of many court systems.

More controversial are a vast array of changes in Criminal Law enforcement that have made conviction more likely and punishment harsher. Many of these have been labeled by their supporters as part of victims’ rights, and victim groups and victims of particularly notorious crimes have often been important to their passage. Tougher drunk driving laws represent one of the clearest examples of the impact of victim’s groups, whereas mandatory minimum sentences have occasionally been the product of victim campaigns, as with California’s Three Strikes law.

A major interest of the victims’ rights movement has been the opportunity to describe at Sentencing the harm caused by the crime. Although victim impact evidence was quickly accepted in non-death penalty cases, the major area of controversy involved such evidence in death penalty cases. In Payne v. Tennessee (1991), the Court reversed its decision of only a few years earlier that such evidence created a substantial risk of arbitrariness and concluded that the Eighth Amendment imposed no barrier to admission, giving the movement one of its biggest victories.

Finally, a greater focus on the interests of victims has been a contributing factor to the development of alternative ways of settling criminal cases. Viewing victims’ interests as central to the criminal case means that mediation efforts are sometimes seen as alternatives to prosecutions, particularly for minor crimes. Some victims groups push further, seeking understanding and healing between victims and perpetrators in a movement called restorative justice.

Efforts to Amend the United States Constitution

The effort to amend the United States Constitution on behalf of crime victims began in 1982 with the President’s Task Force on Victims of Crime. It proposed adding a sentence to the Sixth Amendment that would grant victims the right to be present and to be heard at all critical stages of judicial proceedings.

Supporters first worked to build political momentum by passing victims’ rights amendments in the states, with great success. By 1990, five states had approved victims’ rights; by 1995, twenty; and by 1999, thirty-one. In September 1995, the National Victims’ Constitutional Amendment Network, representing the major victims’ rights organizations, adopted proposed language for the amendment and began serious efforts to amend the United States Constitution. Since 1996, a victims’ rights amendment has been introduced in every session of Congress, and in 2000, it was debated on the Senate floor before being withdrawn.

A recent version, Senate Joint Resolution 1 (2003), would guarantee victims of violent crime the right to reasonable notice of public proceedings and the release or escape of the defendant;

to not be excluded from any public proceedings;

to be reasonably heard at public release, plea, Sentencing, reprieve, and pardon proceedings; and

to adjudicative proceedings that duly consider victim’s safety, interest in avoiding unreasonably delay, and claims to restitution from offenders.

The proposed amendment gives victims standing to enforce its provisions and grants Congress power to enact enforcement legislation. Significantly, the proponents have repeatedly defeated efforts to add a provision that it is not to be construed to deny or diminish the rights of the accused guaranteed by the Bill of Rights.

Proponents argue that only by enshrining victims’ rights in the U.S. Constitution will victims be given full rights in the criminal process and thereby bring the system into essential balance. Opponents argue that the Bill of Rights protections are critical to guaranteeing fairness to defendants who, unlike victims, lack the political power to succeed in the political process. Their major conceptual objection is that the amendment begs the essential question of who is a true victim and whether the particular defendant is the responsible party: while the identity of the accused is clear at trial, whether the apparent victim should have rights against the accused is only determined by the verdict. The most significant impact of the amendment would occur if it were seen as changing the fundamental concept of criminal trials from one in which the Constitution gives defendants procedural rights to guard against abuses of governmental power to a contest between a victim and a defendant both protected by constitutional rights, or if victims’ rights simply enhance the power of the prosecution.

ROBERT P. MOSTELLER

References and Further Reading

Bandes, Susan, Empathy, Narrative, and Victim Impact Statements, University of Chicago Law Review 63 (1996): 361–412.
Beloof, Douglas E. Victims in Criminal Procedure. Durham, North Carolina: Carolina Academic Press, 1999.
Braithwaite, John, A Future Where Punishment Is Marginalized: Realistic or Utopian? UCLA Law Review 46 (1999): 1727–1750.
Cassell, Paul G., Barbarians at the Gates? A Reply to the Critics of the Victims’ Rights Amendment, Utah Law Review (1999): 479–544.
Fletcher, George P. With Justice for Some: Victims’ Rights in Criminal Trials. New York: Addison-Wesley Publishing Company, 1995.
Gerwirtz, Paul, Victims and Voyeurs at the Criminal Trial, Northwestern University Law Review 90 (1996): 863–897.
Henderson, Lynne N., The Wrongs of Victim’s Rights, Stanford Law Review 37 (1985): 937–1021.
Lamborn, LeRoy L., Victim Participation in the Criminal Justice Process: The Proposals for a Constitutional Amendment, Wayne Law Review 34 (1987): 125–220.
Mosteller, Robert P., The Unnecessary Victims’ Rights Amendment, Utah Law Review (1999): 443–477.
———, Victims’ Rights and the United States Constitution: An Effort to Recast the Battle in Criminal Litigation, Georgetown Law Journal 85 (1997): 1691–1715.
———, and H. Jefferson Powell, With Disdain for the Constitutional Craft: The Proposed Victims’ Rights Amendment, North Carolina Law Review 78 (2000): 371–397.
Pizzi, William T., and Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, Stanford Journal of International Law (1996). 32: 37–64.
President’s Task Force on Victims of Crime. Final Report. Washington: Task Force, 1982.
Shapiro, Bruce. ‘‘Victims and Vengeance: Why the Victims’ Rights Amendment Is a Bad Idea.’’ The Nation, Feb. 10, 1997: 11–19.
Symposium: Victims and the Death Penalty: Inside and Outside the Courtroom, Cornell Law Review 86 (2003): 257–581.

Cases and Statutes Cited

Payne v. Tennessee, 501 U.S. 808 (1991)