has apparently been withdrawn — there was supposed to be a committee hearing on it tomorrow, but the backers concluded that they didn’t have the votes. I had written an op-ed (at the behest of ACLU people with whom I’ve been working on this) opposing the VRA, and the Orange County Register had agreed to run it, but now that the VRA has been pulled, they understandably decided to drop it. So I thought I’d just post it instead, for those who might be interested:
I support victims’ rights — but I oppose the Victims’ Rights Amendment, on which the Senate will vote later this month. The amendment would unnecessarily strip power from state voters and legislators, and give it to federal judges. The amendment’s vague terms would lead to years of litigation, and millions spent on lawyers. And part of the amendment may distract courts from their main business: figuring out who’s guilty and who’s innocent.
Most states already have victims’ rights provisions, enacted by voters or by legislators. State voters can press for more, and can elect officials who will aggressively enforce the laws. All of us are potential crime victims, so victims’ rights are a politically popular cause, and rightly so.
But the provisions understandably differ from state to state, just as the Constitution’s Framers intended. Different states have different crime rates, different budget priorities, and different judicial systems. Montanans and New Yorkers might reasonably disagree about which rules are necessary and cost-effective.
The Victims’ Rights Amendment, cosponsored by Senators Dianne Feinstein and John Kyl, would make victims’ rights a federal matter — so the important decisions will be made by federal judges, not by state voters and lawmakers. The amendment would give victims “the right to adjudicative decisions that duly consider the victim’s safety.” Who would decide what’s due consideration? Federal judges. Likewise for the amendment’s other provisions — the right to be present and “reasonably . . . heard” at various proceedings; the right to due consideration of the victim’s interests “in avoiding unreasonable delay” and in timely restitution; and “the right to reasonable and timely notice” of judicial proceedings and of a criminal’s release or escape.
Of course, the Bill of Rights rightly imposes some fundamental constraints on state governments. No state, for instance, should be able to restrict people’s free speech or deny defendants the right to counsel. These rules are needed to prevent major government abuses.
But such constraints are the exception. The rule is that most criminal justice decisions are made by local elected officials, not the unelected U.S. Supreme Court. Federal courts don’t tell us how many police officers we must hire, or how aggressive district attorneys should be, though these are obviously crucial protections for crime victims. The same should apply to other victim protections.
The proposed amendment is also full of vague wording. No-one knows for sure what “duly consider” means, or what’s needed to satisfy the right “reasonably to be heard.” Those rights could be trumped “to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity”; no-one knows what that means, either.
Until the Supreme Court clarifies these terms, many cases and many years from now, state prosecutors and judges would need to spend time, money, and effort figuring out what they must do to comply. Even states that have strong victims’ rights laws would be saddled with another ill-defined federal mandate. Only lawyers would profit from this vagueness — at the taxpayers’ expense.
Finally, consider one part of the proposed amendment: “A victim of violent crime shall have . . . the right to adjudicative decisions that duly consider the victim’s safety.” Sounds good at first.
But what’s the most important adjudicative decision courts make? It’s the decision about whether the defendant is guilty or innocent. That decision should be focused on only one thing: the facts. The proposed amendment risks diverting judges and jurors away from these facts about what the defendant did or didn’t do, and towards speculation about what’s good for the victim.
That’s dangerous. It might be better for some victims’ safety if a defendant could be convicted based just on strong suspicion, rather than proof beyond a reasonable doubt. It might be better for some victims’ psychological well-being if they couldn’t be cross-examined. But it would be bad for justice.
Our current system, in which each state’s citizens make their own victims’ rights laws, works pretty well. And if officials in some states aren’t enforcing such laws, voters can throw the bums out.
We don’t need to give more power to federal judges, and take it from state voters and officials. We don’t need more litigation over vague language. And we don’t need to distract judges and juries from what should matter most in a trial: figuring out the truth.
It looks like we’ll get an additional federal victims’ rights statute, mostly applicable to federal criminal prosecution, instead of the VRA. While I haven’t looked closely at the new proposal’s text, I find such an approach much less objectionable than a constitutional amendment that would apply to all states as well as the federal government. Depending on the specific text, it might actually even be a good idea, if done as a statute, and applicable to federal cases only.
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