Victims' Rights Amendment Probably Unwise

When will the criminal justice system get its act together? Gallup polls consistently show that the public has about as much confidence in the criminal justice system as it has in Congress – very little.

A major reason for public dissatisfaction with the justice system is that the courts are solicitous of defendants' rights while virtually ignoring victims' rights. How can this imbalance be righted?

For every problem of mankind, there seem to be one or more remedies in the federal medicine cabinet. In his State of the Union speech, the president chose the Victims' Rights Amendment as the tonic for our criminal justice ills. In 421 words, the proposed amendment spells out new procedural rights for "each victim of a crime of violence, and other crimes that Congress may define by law…to be heard…to notice of a release [of a convicted offender]…. to proceedings relating to the crime free from unreasonable delay….to an order of restitution from the convicted offender." Claims for damages against the United States, a state, or local government, however, are denied. If the bill gets out of the Senate Judiciary committee this summer, Majority Leader Trent Lott (R-Miss) promises a floor vote.

The aim of the amendment can hardly be faulted. The Bill of Rights specifies 17 procedural rights for the accused in Amendments IV through VIII but none for victims. The new amendment proposes to correct the myopia of the courts and rebalance rights between victims and defendants.

Twenty-eight states now have similar amendments to their constitutions and 49 governors have endorsed the federal victims' amendment (John Engler of Michigan is the exception). State voters have given state amendments 90 percent approval.

So guaranteeing victims of crimes their rights is hard to disagree with. But isn't there a federalism question here? If the states are already doing it, there's no compelling justification for the federal government to wade in. States have already improved the treatment of crime victims throughout their justice process, and more improvements will undoubtedly follow.

Indeed, there is a strong reason for the federal government not to become involved in a victims' rights enactment. The Constitution specifies only three federal crimes (treason, counterfeiting, and piracy), and wisely left the general police power with the states. Yet two hundred ten years later we have over 3,000 federal crimes, and counting. To borrow a phrase from the Tenth Amendment, powers not delegated to the United State's government should stay with the states or with the people, especially the prosecution of common law crimes.

On the other hand, if there turns out to be just cause for federal action, ordinary legislation should be tried first. Statutes providing restitution, the right to be heard or to be notified of a criminal's release from prison would undoubtedly work. There is no need to fiddle with the Constitution, especially in an area that is the domain of the states.

We are supposed to be enjoying the end of big government, but how quickly the devolution era came and went! A Victims' Rights Amendment would preclude states from experimenting with laws that might fall below the federal minimum. Federal mandates would surely follow, and criminal justice will have been nationalized.

The Warren court went beyond reason in the 1960s in single-minded pursuit of expanding defendants' rights, rendering the criminal justice system ineffective. Victims deserve better, yes, but understand the real problem: if the civil and criminal justice systems worked properly, there'd be far fewer victims to worry about.

In a speech to Congress on January 6, 1941, President Franklin D. Roosevelt termed Four Freedoms essential: freedom of speech and religion, and freedom from want and fear. The last two "freedoms" are of course a little different; they are things the government would have to affirmatively provide rather than liberties that government must respect. Affirmative entitlements are generally a European, socialist, and bad idea.

We're better off if government focuses on its fundamental job of protecting the life, liberty and property of its citizens. And that involves the right to be reasonably free of threat of bodily harm, the enforcement of which the Constitution left to the several states.

There is no good reason to move the responsibility to Washington. Indeed Washington has been the source of most of our criminal justice problems.

So my advice is to leave the Victims' Rights Amendment right where it is – a staple of political rhetoric. The rhetoric won't hurt; the Amendment would.