Concerns About Unintended Consequences

Washington, DC (April 29, 1997) -- Burgeoning opposition to the proposed Victims' Rights Amendment to the U.S. Constitution in recent weeks comes from unexpected quarters. Prominent among groups opposing the idea outright or refusing to endorse it are the Legal Defense and Education Fund of the National Organization for Women (NOW LDEF), the National Clearinghouse for the Defense of Battered Women, the National Network to End Domestic Violence, and Murder Victims Families for Reconciliation.

Distinguished law professors, legal scholars and prosecutors are also expressing deep-seated concerns about the unintended consequences of such an amendment.

Murder Victims Families for Reconciliation (MVFR) has expressed legitimate concerns that the proposed amendment would cause added problems and delays for crime victims and their survivors, noting that it is based on "a flawed understanding of the needs of crime victims and their survivors." As to the proposal to create a victim right "to final disposition free from unreasonable delay," MVFR states flatly that "Victims are not served by sloppy, unconstitutional, or wrongful prosecutions."

"Would a battered woman convicted of assaulting her batterer be required to provide financial compensation to the batterer?" MVFR asks. "Would the surviving family members of a murder victim be considered victims? If so, which family victims? What about cases where a crime is alleged but never proven to have happened?"

MVFR concludes that "The purpose of a criminal proceeding is to determine whether a defendant is guilty of the offense he or she is charged with, and not advocacy for victims."

Another skeptical organization is the National Organization of Women's Legal Defense and Education Fund (NOW LDEF). Calling the proposed amendment "problematic," NOW LDEF has published a position paper explaining their reasons for not endorsing the amendment. "[We agree] with victims' rights advocates that survivors of violent crime may suffer further victimization by the criminal justice system. Nonetheless, an amendment to the federal Constitution is not the only strategy for improving the experience of victims as they proceed through the criminal prosecution and trial of an accused perpetrator. [S]uch an amendment raises concerns that outweigh its benefits."

NOW LDEF reasons "The accused -- who must be presumed innocent, and may in fact be innocent -- is at the mercy of the government, and faces losing his or her liberty, property, or even life as a consequence." A victims' rights amendment "would reverse the presumption of innocence . . . vastly increasing the power of the state and unacceptably diminishing the rights of the accused."

Also largely unnoticed in the press is the fact that many prosecuting attorneys share deep concerns about this proposal. 

For example, William Murphy, District Attorney for Richmond County, NY (Staten Island) and President-Elect of the National District Attorneys Association, writing Sen. Pat Leahy, raises questions that must be going through many prosecutors' minds:

"Is it nationally appropriate to maximize the impact of the criminal justice process? Must plea bargaining be eliminated? Should all sentences be maximum? Should bail be eliminated in favor of presumptive pre-trial incarceration? Is the more appropriate Constitutional amendment the elimination of the presumption of innocence?

"If citizens really do not want judges to make decisions, maybe there should only be two branches of government."

As a prosecutor, Murphy explains that "victims are, realistically, our 'stock in trade.'" Murphy worries that a federal victims' rights amendment could be used to call into question the judgment of prosecutors about how a case is to be handled, to the point of interference, impedance and delay. "The proposed Amendment appears to me to be an attempt at a 'quick fix' for a whole range of problems and may even be seen as symbol, rather than substance. Neither justification should carry the day."

A longtime "champion" of victims' rights, William Murphy's office received two awards during Victims' Rights week, one from the Community Agency for Senior Citizens ("In Recognition of Efforts on Behalf of Elderly Victims of Crime") and another from the Victim Services Families of Homicide Victims Program ("In appreciation for the sensitivity and responsiveness given to members of our support group"). As Murphy notes, one can be "for" victims and "against" the proposed amendment at the same time.

Another prosecutor, Robert Humphreys, Commonwealth's Attorney for Virginia Beach, VA, also opposes the VRA on states' rights and other grounds. As he told the Senate Judiciary Committee, "If the concept of Federalism has any vitality left, the decision to provide any level of services and to what extent to the victim of a violation of state law is one that should be properly left to the states." Humphreys expresses a fear which many other state and federal prosecutors will only discuss off-the-record -- that the proposed amendment seeks to give constitutional right status to delivery of governmental services (to victims) while providing that the amendment would not give rise to a cause of action or remedy should the victim be deprived of his or her Constitutional rights. He finds this problematic in light of last month's U.S. Supreme Court decision in United States v. Lanier, which permits a federal criminal prosecution of any state official who willfully and under color of state law deprives any person of rights protected under the Constitution. 

Humphreys shares the concerns of many that the term "victim" is not well-defined in the proposed victim's rights amendment. Prosecutors should be particularly concerned because they know that a "victim" in one case may be a defendant in related case. Thus, the amendment could be used offensively to help a defendant escape conviction and punishment by claiming victim status. He cites several examples where the prosecution could be adversely impacted:

• Domestic violence cases where the victim often opposes prosecution but which are prosecuted anyway because it is in the community's interest;

• Fraud cases such as Ponzi or pyramid schemes which are often prosecuted over the vehement objection of the crime's victims because they think that prosecution will foil their "get rich quick" plan;

• Incidents (such as domestic violence or barroom brawls) in which the victim in one case is the defendant in another;

• Juvenile cases, e.g., what vicarious rights would the parent or guardian of a juvenile victim of intrafamilial abuse have if the parent or guardian were also the defendant in the case?

Says the National Network to End Domestic Violence, which represents dozens of domestic violence organizations throughout the country: "It is essential to the interests of victims of domestic violence that all criminal defendants retain their constitutional protections." 

Not surprisingly, a great number of legal scholars actively oppose or refuse to support the idea of amending the Constitution to confer upon crime victims' their own special Constitutional rights. In an April 15 letter to the leadership of the House and Senate Judiciary Committees, 458 prominent law professors and legal scholars concluded that a victims' rights amendment "is both unnecessary and dangerous." The proposal is dangerous, they believe, in that it would not only undermine basic constitutional protections and essential liberties found in the Bill of Rights. And, it would also hamper effective prosecutions and cripple law enforcement by placing enormous new burdens on state and federal law enforcement agencies. They believe it is unnecessary because its aims are better accomplished by legislation:

"Protecting crime victims by federal and state statutes provides flexibility that is absent in a constitutional amendment. Moreover, amending the Constitution in this way changes basic principles that have been followed throughout American history. Principles of federalism always have allowed states to decide the nature of the protection of victims in state courts. The ability of states to decide for themselves is denied by this Amendment. Also, no longer would protecting the rights of a person accused of crime be a preeminent focus of a criminal trial."

Amendment supporters insist it would not reduce defendants' constitutional guarantees, but merely "balance" the criminal justice system. According to Senator Jon Kyl (R-AZ), its stated aim is "simply" to see the rights of victims "elevated to the same status" as those of the accused. In response to this rhetorical sleight of hand, NOW's Legal Defense and Education Fund emphasizes:

"The position of a survivor of violence can never be equivalent to the position of an individual accused of a crime. The accused -- who must be presumed innocent, and may in fact be innocent -- is at the mercy of the government, and faces losing his or her liberty, property, or even life as a consequence. While the crime victim may already have suffered similarly grievous losses, she is not comparably subjected to state authority. A victims' rights amendment would undermine the presumption of innocence by naming and protecting the victim before a crime is proven. It would also add another party to the prosecution with interests opposed to those of the defendant -- vastly increasing the power of the state and unacceptably diminishing the rights of the accused."

As the President of the Conference of State Court Chief Justices, Iowa Supreme Court Chief Justice Arthur A. McGiverin, recently asked: "What is wrong with the implementation of these laws . . . that justifies an overriding federal constitutional amendment? What remedies will be available for violations of these new federal constitutional rights? Who will pay the administrative costs of any new federal remedies?" The answers he offers are are obvious to anyone who stops long enough to ponder the problems -- "Nothing," "None," and, "Federal, state and local taxpayers -- including victims," respectively.

Says NACDL Legislative Committee Co-Chair, Elisabeth Semel, of Semel & Feldman in San Diego, CA, "The proposed amendment is unnecessary and unwise. Its only value lies in the promise it holds for gaining 'victories' in demagoguery and irresponsibility on the part of 'politically correct' politicians.

"The real uncertainties are these: Will Congress pause and think long enough to grasp the inestimable costs of this proposed federal constitutional amendment in terms of both federal tax coffers and basic civil liberties in America? And will it then follow the wiser, albeit less opportunistic, choices that such a careful examination will reveal?" 

Copies of documents mentioned in the above are available from NACDL. 

Contacts

Contact Jack King, Director of Public Affairs at media@nacdl.com, or Leslie Hagin, NACDL Counsel and Legislative Director at legis@nacdl.com, (202) 872-8600; fax (202) 872-8690.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.